"Strict Constructionist" Judges vs. Thomas Jefferson

[Sandpiper]

Judges like Antonin Scalia operate under the belief that "The Constitution must remain static."

In other words, they believe that the role of a judge is to divine the intent of the founding fathers on all legal issues, and to take a 1787 approach to all questions of law.

How do the reconcile their philosophy with the words of Thomas Jefferson (a founding father)?

I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.

That sort of knocks the legs out from under the argument that the founders of this country would have wanted people in the 21st century to live the same way they did in the 18th century.

[wryter2000]

1. "Activist judges"

I had to laugh at * on Monday (to the extent that you *can* laugh at that monstrosity). On the one hand, he was extolling Brown v. School Board. The minute he got through with that he was pounding "activist judges" in Mass for the gay marriage ruling. I guess he's too stoopid to realize that today's activist judges become tomorrow's champions of human rights.

[denverbill]

3. I know 'states rights' is an old segregationist slogan, recently

adopted by the Pukies.

It would not surprise me one tiny iota if 'activist judges' was another.

[denverbill]

2. Jefferson believed in continual revolution.

There is no way in hell he thought America would go 200 years without a constitutional convention. He figured having a revolution every 20 years or so was healthy.

[TheWizardOfMudd]

4. Its a complicated question

Jefferson cautions changing laws and constitutions and then states that laws and institutions should progress with the human mind. Did Jefferson consider courts an institution?

So it was Jefferson's belief that, as the human mind progresses, institutions must advance and keep pace with the times.

Was Jefferson really talking about constitutional interpretation?

I would like to see his statement in context.

[Sandpiper]

6. It's in Jefferson's Letter to Samuel Kercheval

http://teachingamericanhistory.org/library/index.asp?document=459

The quote comes from the second to last paragraph.

[TheWizardOfMudd]

10. Thank you

!

[pacifictiger]

5. Does that mean we can get rid of

the gun profiteers? I yearn for the day people wake up from their NRA brainwashing and eliminate the 2nd amendment sacred cow perversion. As long as there remains a profit factor in weapons manufacturing, there will be people finding a way to create more customers. Continual chaos=profit.
Too bad the media is loathe to touch the subject and denounce all who make money from the blood of others.

[RoyGBiv]

7. For the record ...

Jefferson was a Founding Father but not part of the process that created the Constitution. In fact he had problems with it, which are reflected in a number of his philosophical and political statements.

Overall, Jefferson is an enigma. He's cited by those that argue in favor of "strict construction," yet he, without clear constitutional authority, acquired the Louisiana Purchase. He was a states rightist who supported the idea of nullification, yet at other times argued in favor of the supremacy of federal law. I'm sure there's a common thread through all this, perhaps many threads, but it's difficult to follow.

Madison, the Constitution's principal author, was obviously the defendant in Marbury v Madison, the decision that established the concept of "judicial review." That in effect allows for judicial activism. But Madison is another enigma, in part due to divergent interests in later years interpreting his writings for their own benefit and leaving us with a sometimes skewed picture of his driving philosophy.

The fundamental problem faced by the strict constructionist argument is this. The Constitution itself was a compromise document reflecting the best accommodation that could be made to all the disparate interests involved in creating the nation. As such, it is almost Biblical in its proportion. It is at the same time and in different sections both metaphorical and literal, both vague and concrete. Through the provision for amendment, it contains within it the process by which it can be destroyed, yet at the same time it claims its own supremacy. It is difficult, if not impossible, to strictly interpret such a document.

OnEdit: Typo

[CPops57]

8. I think what Thomas Jefferson is saying here....

....is that if you want to change the law, carefully change the Constitution and the law to reflect the new standards of society. There are mechanisms within the Constitution for adding new amendments and changing the law of the land.

I believe that the Constitution should be interpreted as written, unless new amendments are added to it that changes its meaning. I agree that we do need to rewrite parts of the Constitution though to better reflect the modern way of life.

[RoyGBiv]

9. Interpretation

The problem with this is seen in Jefferson's own actions. He was not averse to interpreting law according to his own beliefs about the necessities of a given moment. Yet at other times he would present a foundational argument that would seem to invalidate the premise of his actions.

Who's right or who's wrong? I don't know, but that's why we have interpretation and ultimately SCOTUS decisions that may or may not reflect the original intent of legal authors. Laws do not and in most cases cannot conceive of future events that might bear on how a law is applied. "Judicial activism" is a catch-phrase that has taken on a disparaging connotation, but in truth it is merely a process of interpreting laws and their application to circumstances not originally conceived.

[Alerter_]

11. They are not really strict constructionists though

I know they like to use the term, but they are just as "activist" as the liberals are.