See: "It's Your Constitution"
Posted Sep 18, 2018
Last night, former Alabama Supreme Court Justice and current Belmont Law Professor Harold See spoke on "Whose Constitution Is It and How Should It Be Read?" at the Carl Grant Events Center for Constitution Day. In his talk, Justice See explained that the confirmation process has becomely extremely partisan because the next justice can move the Court toward a new way of interpreting the Constitution.
See began by discussion why the Constitution matters. The Founders were familiar with history and the Bible and both told them that democracies were inherently unstable. From the Bible, the Founders knew that humans are fallible. Israel asked for a king and God told them that a king was likely to tax their vineyards, crops, and animals, draft thier sons for soldiers, and make their daughters work for him. After three kings, this prediction came true. The Founders also knew that the democracies of Greece and the republics of Rome eventually turned into tyrannies. The concern with fallible humans taught them that they needed restraints on leaders.
The Founders also read Montesqui who proposed dividing power to avoid tyranny. Madison's genius was that he introduced balance to the division of powers as each branches' ambition would check the other branch's ambition to maintain our freedom. And while the written Constitution was important, Madison also realized the importance of having good people in government. Justice Clarence Thomas has also spoke of this as he argued that judges need to be able to decide, be decent, and courageous (make the decision even if it upsets people).
See then discussed how the Constitution granted certain powers to the national government in Article I, Section 8. It was assumed that they did not have powers beyond that grant of power as states would have the remainder of the power. This federalism also divided power to make government less powerful and less of a threat to the citizen's liberty. The problem with creating a government was making a government powerful enough to accomplish its purposes without being too powerful to impose its will on others.
Next, See discussed how the reasons for establishing the country. With the Declaration of Independence, our ancestors made a radical proposal that we are governed by consent. For most of history, a king ruled and many times they claimed that God chose them to rule. This fact is why written documents are important. The opponents of King John forced him to sign the Magna Charta so it was clear that he gave away these powers. This established the rule of law or the idea that no king or person is above the law. Our Founders then said that the King violated our natural rights delcaring "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalientable rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are insituted among Men, deriving their just power from the consent of the governed." Thus, the people created the government by overthrowing Britain and then "We the People" created a Constitution to govern us which implies we have an important role in governing our nation.
See built upon this last point in the discussion of whose Constitution is it. See spoke of reading a debate in Congressional Record when growing up in which a member of Congress was asked whether a bill he sponsored was constitutional and the member said that was for the Supreme Court to decide. See believes this is a mistaken view of the Constitution Article VI of the Constitution requires all federal and state officials to promise to uphold the Constitution which means that that the member also has a role in deciding whether something is constitutional. If he does not believe it is constitutional, the member should not support it.
This debate about the constitutionality of laws extends to citizens. He told the story of Davy Crockett running for reelection to Congress and stopping by a farm to ask for a citizens' vote. The citizen told him that Crockett voted for a bill that would rebuild houses burned in a fire in Washington, D.C. The farmer told him that his vote was unconstitutional because the Constitution is not designed for government to take from some to give to others. The constituent was informed about the vote, had a theory of the Constitution, and applied it to his voting decision to hold his official accountable. That is what we are all supposed to do which is why it is our Constitution.
With this background, See discussed why the confirmation process is so partisan. Basically, most Democratic and Republican Senators had already decided how they were going to vote on Judge Brett Kavanaugh before he was even announced because they have theories of the Constitution they believe in and were going to vote on that basis. One view is called originalism which claims that judges should interpret the Constitution by the words of the text at the time it was written. If someone does not like what the Constitution says, Article V provides a means of changing it via the amendment process. This theory is best demonstrated by Justices Antonin Scalia and Clarence Thomas. The other perspective, best articulated by Justices Ruth Bader Ginsburg and Stephen Breyer, suggests that we should look at the problem presented and find out which solution will work best and if the Court has to modernize the Constitution so that it makes sense to us today, that is acceptable.
See's conclusion is that the Constitution is the people's Constitution. Since the President appoints judges with the advice and consent of the Senate, the people have a role in determining the Constitution and its meaning through its vote. He encouraged all those present to decide which theory of the Constitution is best and to support it as they make constitutional decisions through their votes and other political decisions.