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Jefferson's Originalism

Over at Bench Memos Matthew Franck and Ed Whelan are having fun at the expense of Joseph Ellis's attack on originalism. (Follow the chain of links to get all the posts and the original piece).  Ellis highlights Jefferson's comment:

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did beyond amendment. . . . Let us follow no such examples, nor weakly believe that one generation is not as capable of taking care of itself, and of ordering its own affairs . . . Each generation is as independent of the one preceding, as that was of all which had gone before.

Ellis, however, makes no distinction between the idea that we ought not to be afraid to change the constiution and the question of how such change ought to be done.  Jefferson, who wrote in 1776, "Let mercy be the character of the lawgiver, but let the judge be a mere machine" did not think that the Court, the branch of government least accountable to the people was the proper branch to do it. 

If a statute, say New York's Rent Control statute, is clearly an anachronism (it dates from the "temporary emergency" of World War) II, is out of date, that does not mean that Courts may simply say it is no longer in effect since the emergency which led to the creation of the law is no longer with us.  On the contrary, the representatives of the people of New York are the only ones who may change the law.  So too with constitutional provisions.  If, as many Americans (though not a majority) think, the right to bear arms or the death penalty are out of date, it is the job of the people (via the amendment power in the former case) and the legislature (in the latter case. Or the people via amendment again) to change it.  Why liberals find that logic so strange is beyond me.

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