Contrary to what has been recently argued on this page, the power of judges to declare laws unconstitutional is an entirely distinct matter from how judges should construe the Constitution.
The two shouldn't be confused.
A. Power to Declare a Law "Unconstitutional"
Our U.S. Constitution nowhere explicitly gives judges the power to declare laws made by Congress or state legislatures unconstitutional. That power flows of necessity from what is stated in Article VI: "This constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."
The power of judges to declare a laws unconstitutional (void) guarantees that the Constitution remains the supreme law of the land until it is constitutionally repealed or amended.
If Congress or a state legislature has power to pass laws which contravene the Constitution, and if those laws are valid and effective law, then the Constitution is a dead letter.
To understand the necessity of our courts having power to declare laws null and void, it is only necessary to illustrate what would happen if our courts did not have that power.
The Constitution provides that U.S. representatives shall be elected for a two-year term. But what if Congress were to pass a law saying that all sitting representatives shall hold office for life? Does that law trump the Constitution? Would such a law have been made in pursuance of the Constitution or in contravention thereof?
If representatives are to hold office for life, how can the two-year term provision of the Constitution be anything but a dead letter? If Congress can make valid laws directly contrary to the Constitution, how can the Constitution be the supreme law of the land?
This judicial power to declare a law unconstitutional, however, is entirely distinct from the question of how judges should construe the Constitution.
B. Construction According to "Original Intent," or as a "Living Document"
Should it be construed according to the "original intent" of the men who wrote it? Or according to the more enlightened notions of modern progressives -- as a "living document?"
Once judges abandon original intent and embark upon construing the Constitution according to the notions of whoever happens to be judging the case, rather than legislative encroachments being the problem, we suddenly have a judicial encroachment problem.
Original intent judges have consistently ruled that the First Amendment protects political speech, even if the listener finds it offensive. They've ruled that the remedy is not suppression of offensive speech, but counter-political speech. But progressives, who believe the Constitution should be construed in a more enlightened, modern way, would shut down conservative speech they perceive to be offensive.
Progressive iconoclasts are already destroying Confederate monuments. Not even Thomas Jefferson's statue is safe. His greatness is ignored; all the left can see are his faults.
The Rev. John Jenkins, president of Notre Dame, sided with progressives, and agreed to cover the murals in the university's Main Building depicting Columbus' arrival in the New World. Because the left believes Columbus mistreated the indigenous peoples, it demands the murals be removed.
The artist's First Amendment right to speak through his art must be suppressed. The right of viewers to view the artist's message must be denied for reasons of progressive political correctness.
So, are we better off if the courts can engage in the very meddling prohibited to Congress and the state legislatures?
Those who construe the Constitution according to original intent have given free speech a very expansive meaning. When the '60s left marched against the Vietnam War, wearing shirts embossed with expletives and burning flags, their conduct was held to be a form of political speech, protected by the First Amendment.
Today's progressives still demand that they be allowed to engage in unfettered speech ("Pigs in a blanket!"), but would limit any speech they adjudge politically incorrect. Ergo, no Confederate monuments; no statues of Jefferson; no murals of Columbus, no conservative speakers on campus.
The Constitution prescribes cumbersome procedures for its amendment. The natural consequence of the more enlightened, "living document" theory of Constitutional construction is that it renders the amendment process surplusage. It allows amendment anytime five progressive justices agree on a "more enlightened" meaning for the Constitution.
Posted: QCOline.com March 21, 2019
Copyright 2019, John Donald O'Shea
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