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Our Constitution 

We Americans love and revere our Constitution. The problem is that we have very different ideas on what the Constitution is and what it means.

For example, the recent Supreme Court of the United States (SCOTUS) decision striking down the New York COVID-19 restrictions on churches has a lot of liberals worked up, arguing that it violated the establishments clause by giving preferences to religion, etc. However, lost in the usual feverish liberal hyperbole is the fact that SCOTUS merely applied the long-standing Constitutional principle that you can't treat churches more restrictively than secular institutions, and that a law applying equally to both secular and comparable religious assemblies would pass Constitutional muster. Conservatives just saw a law singling out churches, and the ruling merely as protection for religion from arbitrary attack.

Clearly, our politics make us view the Constitution quite differently. To Conservatives, it is a fixed "rule book" controlling the government, while to liberals it is a sacred talismanic scroll with wisdom only they can decipher, to be cited as authority to do whatever they think is best.

We conservatives see the Constitution as a document providing set rules and rights—a "rule book." The language in the document itself controls, and to the extent that the language is unclear, dated, or incomplete, the intentions of the framers are determined. This approach is called "strict constructionism" or similar terms.

Liberals take a more expansive view, and see the Constitution as more of an ever-evolving expression of a "spirit" that should guide us. And that since this "spirit" is supposedly advanced by their agenda, the Constitution should be interpreted in a way that furthers this agenda. Its principles are meant to be constantly adapted to current social attitudes, and there are new rights waiting to be discovered. This approach is called the "living Constitution."

To a conservative, the liberal "living Constitution" approach renders a constitution meaningless. A rule book serves no purpose if it can be interpreted to render any outcome that a majority of the court may prefer at that moment. We find it analogous to allowing a referee to officiate a football game according to whichever team they feel is most worthy, or whichever receives the loudest cheers from the stands.

On the other hand, liberals argue, correctly, that the world has changed immensely since the Constitution was drafted, and that it needs to be interpreted with a view toward modern life and technology. How can a document written at a time when the only communications were by speech or letter, and travel by horse, wagon, or sailboat, govern the world of the internet, telephones, radios, jet airplanes, etc.?

Conservatives argue that necessary changes can be addressed by amending the Constitution, a cumbersome process designed to buffer the more rash and impulsive expressions of popular sentiment. We point out that blindly following momentary public demand can take you to some pretty bad places, such as the WWII internment of Japanese Americans, which was very popular with the public at that time, and which SCOTUS tolerated.

Of course, the Constitution is ultimately interpreted and applied by SCOTUS. The tension between the fixed "rule book" and the ever-flexible "living Constitution" approaches is made even more fraught by the fact that the court has the final word in determining what the Constitution provides. This is a power that they gave themselves in the famous Marbury vs. Madison case. Since as a practical matter it is necessary that somebody have the final word, the other branches acquiesced. The power has endured because SCOTUS has tended to be restrained in asserting it, often deferring to the political process. But, such restraint is diminishing as the judiciary asserts itself more aggressively in matters like immigration and national defense, which previously had been the domain of the executive branch.

There is no real political remedy to override a SCOTUS decision, since they could just use to use their unlimited power to either overrule any legislative or executive act, or just decree that the political process used was somehow flawed.

And the issue is made yet more difficult by the fact the justices have lifetime appointments and have no real accountability. Only one justice has ever been impeached (in 1805), and he was acquitted. With the lifetime tenure, and the high political stakes involved, as well as the oft-demonstrated shamelessness of the political class, I am surprised that we have never seen a failing justice kept on indefinite life support in order to frustrate or delay a shift in power.

So we are left with lifetime appointees whose power is limited only by the degree of restraint that they may choose to exercise, and by their creativity in divining and fashioning legal principles. To those of us who believe the old adage that "power corrupts, and absolute power corrupts absolutely," this is a frightening concept.

The next time you find yourself shocked and surprised at the level of strife and bitter contention over the appointment of a Supreme Court justice, remember that the appointee and eight other justices will be exercising the ultimate power in this country for the rest of their lives. Δ

John Donegan is a retired attorney in Pismo Beach who is relieved that his legal arguments are no longer subject to scrutiny by skeptical judges and loud opposing counsel. Send a response to

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