Opinion: Constitution lost in translation
The Republican Party saved our divided nation during the 1861 War Between the States. But since 1982, the Grand Old Party has divided our states through a cultural war. It has “won” that war. In so doing, it has degraded our constitutional separation of powers, destroyed the trust we had in our courts, and mocked us as they waved the flag.
The GOP patiently worked for 40 years to create a super Congress, known as the Supreme Court of the United States (SCOTUS). The tip of their spear has been the Federalist Society. Six of the current nine-member court are, or have been, members of that overtly political group. All were Republican nominated.
The Society, founded in 1982, grooms judicial aspirants who solemnly proclaim to interpret the Constitution today through the constitutional text as understood in the time it was written. It’s known as Originalism, as testified to by now SCOTUS Associate Justice Amy Coney Barrett. She said the meaning of those words doesn’t change over time. I agree.
Progressive judges, such as retiring SCOTUS Associate Justice Stephen Breyer, argue that the Constitution is a living, breathing document to be interpreted as times change. I agree with that, too.
Both sides of the Constitutional interpretation debate find support in the writings of Founding Father James Madison. He was the principal author of the Constitution. He was also one of the three authors of 85 newspaper essays, called the Federalist Papers (published from 1787 to 1788), to explain and promote ratification of the Constitution. The Federalist Society purports to find support in the Federalist Papers.
Madison wrote that the words of the law should be applied as written, but when they are ambiguous, they require interpretation based on settled public discussion after the passage of time.
Example: Congressman Madison was against the establishment of a national bank because its existence was not specifically authorized by the Constitution that he had just written. However, more than twenty years later, Madison, as president, changed his mind. He said that the consensus of the American people had settled on a view other than his original intent. And he agreed with the new view. He supported a national bank. That’s a maturing democracy.
Federalist Society judges ignore the practical, realistic, and common-sense James Madison. They only focus on Madison’s comments about applying the law as written. They cherry-pick history to suit their political bias. Cherry-picking is as intellectually dishonest from the bench as it is from the pulpit.
If only they can understand the original 235-year-old language, then they can pretend to magically discern the law within those old words while they are actually making up new laws. It’s called judicial activism. It allows them to avoid dealing with an increasingly racially- and ethnically-diverse America, a population that demands equality for women, and the absurd separations of wealth between those who have and those who do not.
How does the Federalist Society SCOTUS politically cherry pick? More next time in PART TWO.
— Charles Wieland,