CONSTITUTIONAL MYTHS & REALITIES - Eight of 'em, so pay attention! - Part VII

This is part seven in an eight part series adapted from a speech delivered on April 29, 2003, at a Hillsdale College National Leadership Seminar in Dearborn, Michigan. Reprinted by permission from Imprimis, the national speech digest of Hillsdale College. [Part VI is here]

Myth or Misconception 7: The great debate over the proper judicial role is between judges who are activist and judges who are restrained.

In the same way that excessively "activist" judges may exceed the boundaries of the judicial power by concocting law out of whole cloth, excessively "restrained" judges may unwarrantedly contract protections and rights conferred by the laws and the Constitution. It is inappropriate for a judge to exercise "restraint" when to do so is to neglect his obligation of judicial review—his obligation to compare the law with the requirements set forth by the Constitution. Nor am I enamored with the term "strict construction" to describe the proper duties of the judge, for it is the role of the judge to interpret the words of the law reasonably—not "strictly" or "loosely," not "broadly" or "narrowly," just reasonably.

I would prefer to characterize the contemporary judicial debate in terms of interpretivism verses non-interpretivism. In doing this, I would borrow the description of the judicial power used by Chief Justice John Marshall, who 200 years ago in Marbury v. Madison stated that it is the duty of the judge to say what the law is, not what it ought to be (which is the province of the legislature). For the interpretivist, the starting point, and usually the ending point, in giving meaning to the law are the plain words of the law. This is true whether we are construing the law of the Constitution, the law of a statute, or indeed the law of contracts and policies and deeds. In each instance, it is the duty of the judge to give faithful meaning to the words of the lawmaker and let the chips fall where they may.

One prominent illustration of the differing approaches of interpretivism and non-interpretivism arises in the context of the constitutionality of capital punishment. Despite the fact that there are at least six references in the Constitution to the possibility of capital punishment—for example, both the 5th and 14th Amendments assert that no person shall be "deprived of life, liberty or property without due process of law," from which it can clearly be inferred that a person can be deprived of these where there is due process—former Justice William Brennan held, in dissent, that capital punishment was unconstitutional on the grounds apparently that, since 1789, there had arisen an "evolving standard of decency marking the progress of a maturing society" on whose behalf he spoke. Purporting to speak for "generations yet unborn," Justice Brennan substituted his own opinions on capital punishment for the judgments reached in the Constitution by the Founders. His decision in this regard is the embodiment, but certainly not the only recent example, of non-interpretivism.