All Maine Matters

May 2006



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Constitutional Myths and Realities: Part II
by Justice Stephen Markman

The following is adapted from a speech delivered on April 29, 2003, at Hillsdale College National Leadership Seminar in Dearborn, Michigan. It is the second half of Justice Markman’s speech, the first having been printed in the April issue of All Maine Matters.

Myth or Misconception 6: The role of the judge in interpreting the Constitution is to do justice.

The role of a judge is to do justice under law, a very different concept. Each of us has his or her own innate sense of right and wrong. This is true of every judge I have ever met. But judges are not elected or appointed to impose their personal views of right and wrong upon the legal system. Rather, as Justice Felix Frankfurter once remarked, “The highest example of judicial duty is to subordinate one’s personal will and one’s private views to the law.” The responsible judge must subordinate his personal sense of justice to the public justice of our Constitution and its representative and legal institutions.

I recall one judicial confirmation hearing a number of years ago when I was working for the Senate Judiciary Committee. The nominee was asked, “If a decision in a particular case was required by law or statute and yet that offended your conscience, what would you do?” The nominee answered, “Senator, I have to be honest with you. If I was faced with a situation like that and it ran against my conscience, I would follow my conscience.” He went on to explain, “I was born and raised in this country, and I believe that I am steeped in its traditions, its mores, its beliefs and its philosophies, and if I felt strongly in a situation like that, I feel that it would be the product of my very being and upbringing. I would follow my conscience.” To my mind, for a judge to render decisions according to his or her personal conscience rather than the law is itself unconscionable.

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 laws 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 laws 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 versus 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 personal shall be “deprived of life, liberty or property without due process of law,” from which it can clearly be inferred that a person I be deprived of these where there I 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.

Myth or Misconception 8: The Constitution is a “living” document.
The debate between interpretivists and non-interpretivists over how to give meaning to the Constitution is often framed in the following terms: Is the Constitution a “living” document, in which judges “update” its provisions according to the “needs” of the times? Or is the Constitution an enduring document, in which its original meanings and principles are permanently maintained, subject only to changes adopted in accordance with its amending clause? I believe that it is better described in the latter sense. It is beyond dispute, of course, that the principles of the Constitution must be applied to new circumstances over time – the Fourth Amendment on searches and seizures to electronic wiretaps, the First Amendment on freedom of speech to radio and television and the internet, the interstate commerce clause to automobiles and planes, etc. However, that is distance from allowing the words and principles themselves to be altered based upon the preferences of individual judges.

Our Constitution would be an historical artifact – a genuinely dead letter – if its original sense became irrelevant, to be replaced by the views of successive waves of judges and justices intent on “updating” it, or replacing what some judges view as the “dead hand of the past”: with contemporary moral theory. This is precisely what the Founders sought to avoid when they instituted a “government of laws, not of men.”

There is no charter of government in the history of mankind that has more wisely set forth the proper relationship between the governed and their government than the American Constitution. For those of us who are committed to constitutional principles and fostering respect for that document, there is no better homage that we can pay it than to understand clearly its design and take care in the manner in which we describe it.

Stephen Markman, who teaches constitutional law at Hillsdale College, was appointed by Governor John Engler in 1999 as Justice of the Michigan Supreme Court and subsequently elected to that position. Prior to that, he served as United States Attorney in Michigan (appointed by President George H. W. Bush); Assistant Attorney General of the United States (appointed by President Ronald Reagan), in which position he coordinated the federal judicial selection process; Chief Counsel of the U.S. Senate Subcommittee on the Constitution; and Deputy Chief Counsel of the U.S. Senate Judiciary Committee. Justice Markman has written for numerous legal journals, including the Stanford Law Review, the University of Chicago Law Review, the University of Michigan Journal of Law Reform and the Harvard Journal of Law & Public Policy.

Reprinted by permission from Imprimis, the national speech digest of Hillsdale College,

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