Judicial Independence versus Activist Judges: American Intelligence Test #9

One of the more prevalent political themes that is and will perpetually be used by both Democrats and Republicans whenever some constitutional-oriented ruling is made by a federal or state court is that the said court's justice(s) is/are acting proactively (and wrongly) based on their personal views and inconsistent with the “true meaning/intentions” of the applicable constitution. Yes, the infamous “activist judiciary” as it has become known in the popular parlance. So it would behoove us to consider what the general understanding the public has regarding the underlying issue at question here. Perhaps even to determine if the political parties are, as they ever like to do, creating a lightning-rod issue that draws the attention of the public or at least their own constituency to, so as to distract the public away from issues that are more pertinent to their individuals' lives and to the nation's interests.

How better to focus on this issue then to assess the insight of popular opinion, the intellectual prowess of the electorate and the attention span of the huddled masses.

Remember as Lincoln almost said:

Some of us can fool ourselves all of the time, and all of us can fool ourselves some of the time, but all of us can not fool ourselves all of the time.

So, gentle-persons: Start your engines!

Question 1: Our laws are based on clear and precise written statutes, including the Constitutional framework of laws that create and govern our democratic system.

True or False

Context: Consider that a lot of our laws are based on common law inherited from legal systems that predate our Constitution.

Question 2: When ruling on a case before the court, a judge (or justices) should adhere to the “original meaning/intent” of the law; there is no justification or need for the judiciary to interpret the law.

True or False

Context: Do you want to appear before a judge who should not have the right and duty to consider the situations and circumstances that prevail in our daily lives? [This is not a test question.]

Question 3: If you believe in Constitutional 'Originalism' rather than it antithesis a 'Living' Constitution then which of the following topics would you agree are beyond the scope of our laws as they are not contained in the text of the Constitution or for some topics that were not within the realm of understanding that our founding fathers could have conceived or thus intended?

A. genetic engineering

B. marriage

C. equal rights – required an Amendment

D. income tax – required an Amendment

E. Women's suffrage – required an Amendment

F. Desegregation of public schools

G. All of the Above

H. None of the Above

Context: While the ability to amend the Constitution is provided for in the Constitution it can hardly be considered as providing the original meaning of what was intended by the founding fathers regarding any topic that required an Amendment.

Question 4: Preserving the independence of the judiciary requires that the judiciary has not only the right but the obligation to interpret the Constitution, and to do so in the context of the society that we have today, not the one that we have at the founding of the country.

True or False

Question 5: The founding fathers' vision and understanding represented in the Constitution is completely sufficient to guide and direct the legal decisions presented by our society and national situations confronting us today.

Agree - Disagree

An extra, but Critical Question X: Would you be willing to live under the social systems that were our American reality at the time of the Founding Fathers, today?

Yes - No

Please close your books, the test is over. You now must decide how well you did. I assume you got a perfect score, else you have an unusual concept of taking a test. For those of you with an interest: here are my answers.

Q1: False Q2: False Q3: G. Q4: True Q5: Disagree Q-X: No

The Constitution defines the nature of our government and the structure upon which it will operate. It includes limits upon the government for the protection of the people from the government and upon the people to protect them from themselves. The Constitution does not and never did hold the secret mysteries for running a free and democratic nation; and it particularly does not allow the members of any generation of citizens of this country from being responsible for and accountable for applying their skills, talents and wisdom in pursuit of seeking to better understand and apply themselves to developing the laws and institutions that we use to govern ourselves.

Suppose that at least one founding father stood before us today and counseled us to accept this responsibility. Who then among us would not recognize that we are and must be responsible for deliberately seeking to understand the Constitution in today's context. Further that we must strive to apply it's principles in a meaningful way so as to take into consideration our knowledge, perspective and judgment about the issues that we have to contend with in our times, given our society, with our resources, and with a mind to better the nation that they envisioned to be a living democracy.

And we have founding fathers that stand before us today, in their own words. One need look no harder than at Jefferson, who some might agree had a notion of freedom, democracy and a people's responsibilities.