The Supreme Divide

Lady Justice

“I, ________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

All Supreme Court justices since the 1860’s have affirmed this oath, including our present sitting Justices. The foundation of the oath is to swear (or affirm) to support and defend the Constitution of the United States. A straightforward charge to these judicial pillars.

There were some landmark Supreme Court decisions this week.

  1. Obamacare was challenged because of the wording in the bill that government subsidies would only be provided for “the states that set up exchanges”. The Court saved the bill by interpreting the phrase “the states that set up exchanges” to mean that any exchanges set up by the states or the federal government, eliminating the checks and balance of the Legislative branch writing the laws, the Judicial branch interpreting the laws, and the Executive branch executing the laws. The Supreme Court, instead of interpreting the law as written, chose to rewrite the law. If congress writes a sloppy or unclear bill then it’s the Supreme Courts job to return the bill so that Congress can write it correctly. Instead, judicial activism was exercised. This was a 6-3 decision.
  2. Same-sex marriage is now a national right according to the due process in the fourteenth amendment.The dissenters did not vote that same-sex marriage is wrong because  it’s not a power granted to the federal government but is reserved for the states to decide. The majority believed that this is a federal right after a 5-4 decision.

How can nine smart, seasoned lawyers come to polar opposite conclusions when the goal is to “protect and defend” the Constitution? The answer is the two different philosophies for interpreting the Constitution: living constitution (loose constructionism) and original intent (strict constructionism).

Living Constitution

Living Constitution was introduced by the father of modern Progressivism, President Woodrow Wilson, in his book Constitutional Government in the United States where he wrote:

Living political constitutions must be Darwinian in structure and in practice.

During his 1912 Presidential campaign, Wilson publicly asserted

Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission – in an era when “development,” “evolution,” is the scientific word – to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.

Wilson believed that just like organisms evolve per Darwin’s theory that so does the Constitution evolve over time.

Justice Ginsberg defends this approach by saying the Constitution must allow for broad interpretation.

“It’s intended to be looked at in the context of contemporary events, in the context of history, in the context of past precedent, and the intent of the framers. Put all those things together and hopefully what you get is the right answer to some perplexing issue that the court is confronting,”

During an Egyptian TV interview Justice Ginsberg responded,

“I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012.”  The justice then added, “I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.”

Justice Ginsberg swore to protect and defend our constitution but believes that South Africa has a better constitution.

The liberal justices (Sotomayor, Ginsberg, Kagan, Breyer) were nominated by Democratic presidents and usually vote in lockstep due to their belief in a living constitution that changes according to the cultural and social climate of the present.

Original Intent

Original Intent is the belief that  Constitutional interpretation is according to the intent of authors of the Constitution. This approach interprets the Constitution literally, peruses the Federalist Papers, and any other early writings that could provide the author’s intent. This concludes that the Federal Government only has power explicitly granted in the Constitution and all other powers are implicitly granted to the States. The belief is that the Constitution is resilient enough for our country unless new amendments are ratified.

The conservative justices (Alito, Scalia, Thomas, Kennedy, Roberts) were nominated by Republican presidents. Alito, Scalia, and Thomas usually vote together due to their original intent philosophy. Kennedy and Roberts are now swing voters who drift between living Constitution and original intent decisions.


The founding fathers were brilliant men that understood human nature, the corruption of man, and the lust for power. Our constitution is meant to provide constraints on the Federal government and to enforce checks and balances on the federal branches (Legislative, Executive, Judicial). Ratifying Constitutional amendments is meant to be difficult to provide constitutional stability. States’ rights are intended to flourish except where federal rights are explicitly granted.

The Constitutional foundation is crumbling as officials deem it an obstacle for what they want. A living constitution means that the constitution means whatever the interpreter wants it to mean. Therefore, the Constitution is deemed as a necessary evil until it can be modified by the court to be a better document. This thinking is dangerous and a threat to our country.


2 thoughts on “The Supreme Divide

  1. IRONY:

    On another thread lizlemon posted . . . “Roy Moore is dangerous and apparently thinks he is above the law and capable of making up his own.”

    Actually, Anthony Kennedy “is dangerous and apparently thinks he is above the law and capable of making up his own.”

    Political correctness is destroying this country. Somebody has to have the guts to say that the king has no clothes!

    This has nothing to do with same sex marriage. It has everything to do with judges usurping power. You may like the same sex marriage case. What happens when the justices of the Supreme Court make up a new right, or take away an old right, that you do NOT agree with? Is it not better to actually have a rule of law instead of letting 9 unelected judges make up the law depending on how a majority of them feel at any particular time?

    Justice Kennedy’s opinion making up a fundament constitutional right to gay marriage has zero basis in the Constitution, the rules for interpreting the Constitution or any prior Supreme Court precedent — including his own opinion in Windsor. Kennedy plain and simple made up a new constitutional right.

    Why do you think Chief Justice John Roberts wrote a dissenting opinion saying that Kennedy’s majority opinion had “nothing to do with” the Constitution?

    Also, there is nothing in the Constitution that says the Supreme Court is the final arbiter of the Constitution. The Supreme Court first claimed authority to overturn Congressional statutes in Marbury v. Madison. The Supreme Court may be allowed by common consensus to overturn Congressional statutes that it determines violate the Constitution. There is no such consensus that the Supreme Court can change the Constitution. The Supreme Court only has legitimacy where it confines itself to reasonable interpretations of the Constitution. When the Court makes up law with zero foundation in the Constitution, the court no longer has any legitimacy.

    There is nothing in the Constitution that says there shall be 9 justices on the Supreme Court. There is nothing in the Constitution that says that 5 justices can change the Constitution. If you believe judges should be able to make up new constitutional rights, why shouldn’t it take 9 justices to do so? Congress determines how many justices are on the Supreme Court and it has varied from 5 to 10. Congress can pass a law as soon as there is a new president increasing the number of justices to 11 and the new court can reverse Kennedy’s pathetic decision.

    The justices of the Supreme Court swear an oath to abide by the Constitution. Why would they do that if the Constitution meant anything that 5 of them said it meant? The oath states: “I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

    Kennedy clearly violated his oath. He should be impeached. Kennedy is a domestic enemy of the Constitution. Any person of good faith that swore an oath to defend the Constitution (like Judge Moore) has a duty to resist Kennedy’s made-up law. Same goes for every Congressperson and every Senator. Same goes for the President. Same goes for every lawyer. Same goes for every police officer. Same goes for every member of the military. Same goes for every federal, state and local government official.

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