"We the people are the rightful masters of both Congress & the courts, not to overthrow the Constitution, but overthrow the men who pervert the Constitution." - Abraham Lincoln
A lot of modern politicians love to talk about how the constitution should be a “living document” (which, to them, means it should be ignored). They argue that this is necessary to keep up with the times, because people today shouldn’t be locked into the opinions of people who lived centuries ago. They’re right about that last part: we shouldn’t be locked into old opinions, which is exactly why we’re allowed to amend the constitution. The process for updating the government’s powers to maximize legitimacy (which I described in detail in this post) is built directly into the US constitution. So what’s the problem?
Essentially, the problem is impatience. For many people, the amendment process simply isn’t fast enough to get them the powers they want, when they want them. The framers wisely felt that such amendments should only occur in response to lasting shifts in the public mindset (the sort necessary to clear the 2/3 and ¾ hurdles the constitution establishes), rather than in response to fickle fluctuations in popular opinion (the sort that clear only the 50% necessary in a pure democracy). Unfortunately for those who crave “progress” (however they define it), those lasting shifts require more time to develop. Powerful people don’t feel like waiting.
Unfortunately, the courts have tended to agree with those powerful people. For the better part of the past century, the judicial branch has assumed this broad interpretation of constitutional power. Again and again, the courts allow and affirm the government’s new power grabs without striking very many down. Even in the rare cases in which laws are struck down, the ruling usually draws a line far ahead of the line initially drawn by the constitution, legitimizing the power grabs permitted by prior courts. And each successive generation of lawyers and judges spend years in law school studying these decisions – far longer than they study the actual words the constitution contains.
So whenever somebody like myself argues for an originalist interpretation of the constitution, statists from both major parties are quick to cite “precedent”. For instance, if I argue that Law A is unconstitutional because it exercises powers not granted to the federal government, my debating partner often replies by showing me a court case in which the court justified a similar action. Therefore, I must be wrong.
My response is the same every time: so what?
Who cares what that court thought?
What if that court was wrong?
Why is showing old, dead people who disagreed with me evidence that I am wrong?
And more importantly, why should today’s judges be prevented from deviating from the opinions of yesterday’s judges?
This brings to light an enormous hypocrisy on the part of big-government supporters. When asked why they interpret the constitution as broadly as they do, they say because the framers lives 200 years ago, and old opinions may not apply today. But when that interpretation is challenged, they cite other old opinions to legitimize their stance!
So which is it? Should old opinions restrict what things we’re allowed to do today, or shouldn’t they? To me, the answer is no, they shouldn’t. I don’t believe in limited government simply because James Madison also believed it; I believe in it because I, independently, have come to the conclusion that it’s a pretty smart idea. There are also things the framers (and prior supreme court justices) believed in that I find appalling and evil, like slavery and the oppression of women. Thankfully, many of these things have already been amended, proving that the process eventually works. I’d support even more amendments to the constitution in the future. Each of these amendments would make our government different from the way the framers wanted and imagined it, I won’t let the fact that some old dead guys disagreed with me change my opinion.
The same goes for precedent. On a legal level, if a judge today thinks a judge who ruled yesterday was wrong, he should say so, and rule accordingly. If he disagrees with a judge who ruled ten years ago, he should say that too. And he should do the same for rulings 20 years old, or 30, or 50, or 200. Ideas don’t have an expiration date. Federal judges are not tasked with interpreting precedent; they’re tasked with interpreting the constitution. They should do so however they personally believe the constitution was meant to be interpreted.
The judiciary seems to be the only branch of government that is at all resistant to calling its predecessors wrong. The other two branches do it all the time. Bad laws are repealed. Bad executive orders are undone. Policies are changed, and sometimes changed back. So why do modern judges bend over backwards to avoid contradicting the opinion of the judges who came before them? Why is precedent viewed as a sacred, untouchable building block of thought, rather than as the subjective opinion it really is, while the constitution they’re actually bound to interpret is brushed aside? Haven’t the courts screwed up before? What about the Dred Scott decision, or Plessy vs. Ferguson? Perhaps if the courts hadn’t been so reverent of precedent, those decisions would have taken less time to be revoked.