The Constitution and Judicial Prudence

By Pete Albert III. on January 22, 2019 in Law
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The role of any justice or judge is to accept the words of the Constitution as they are, not to rewrite the text of the Constitution according to personal judicial standards of law. An adjudicator is obligated to preside over a controversy weigh its merit, then render a decision based on the text of the constitution. Extra-constitutional believe and opinion is an “effervescence of the imagination” that do not belong in the realm of judicial interpretation. The personal political opinions of a judge act as a sword cutting through the text of the constitution, severing the original meaning of the text from the document. Such opinions are typically rendered to placate changes that transpire within modern America. Both justices and Judges must practice self-restraint so they do not become pioneers of public policy. Accordingly, because they are given a rostrum to apply their constitutional interpretations of the law, it is necessary they obtained years proverbial apprenticeship before they earn the status of “justice” or “judge”. To go beyond the text of the constitution is to place the “Supreme Law of the Land” at the foothills of the Tarpeian Rock; for all words have a “limited range of meaning” and honest men know that literary boundaries must exist to secure the sanctity of the Constitution. In the sense, the text of the Constitution sets the destiny for its own interpretation.

The judiciary is an independent branch of our United States Government. Justices take an Oath to uphold the Constitution; therefore they are bound to support it and obligated to abide by its text. The Constitution is not, and will never be, what justices or judges say it is. Adjudicators often have a habit of making the world a tributary for their thoughts; such fanciful speculations can be limited by appointing judges to a course that maintain a rule of law. The arena of Constitutional interpretation requires consummate prudence and strict adherence to the letter of the law. While legislators are subject to the cupidity of the many, judges are gladiators of the law and should guide their interpretations of the law according to the Constitution excerpts and statutory texts. Therefore, judges who confirm the law according to their believes, remove themselves from the powers, scribes to them by law and enter into the stadium of popular legislation.

The following analogy may be used to convey this fundamental principal of law and demonstrates why it is so important in preserving our individual liberties and the separation of powers system.

Judges must tend forever on the border where the shade and the sunlight from behind the tree free of liberty meet. The limit of a judge’s Constitutional power is the point where the shade and the sun meet. To defy those limits is to move beyond the text of the Constitution. While judges may perceive of the sun, they know that it is an eternal sun, neither rising nor setting, always positioned behind the tree of liberty. Judicially limiting their power. Accordingly, judges must enter the sun; that world is reserved for popular playfulness. When one removes thyself from the shadow and steps into the light, they renounce their judicial identity and conform to our legislative role. A judge with a strong “Constitutional faith” would not surpass their legal prerogative. When judges attempt to rewrite the Constitutions using their own political or personal beliefs we can commit their decisions to the flames because they are full of “sophistry and illusions”. In the United States, Constitutional Law does not trump the Constitution. Judicial opinions temporarily bind, they do not bind ad in fine turn. Judges merely interpret the Constitution; they do not make Constitutional laws. Although the Constitution is the “Supreme Law of the Land”, judicial decisions do not enjoy Constitutional status. Constitutional law binds the parties in good standing, cases that are similar, and the executive branch to enforce the law. The Constitution is superior to any judicially mandated law. If courts interpreted laws as having Constitutional status, such courts would restrain their ability “over rule” themselves.

As a rule of law, the design of the Constitution is such that all laws must be measured against it. Thus, a “government by the judiciary” must never exist within our framework of government.

The Constitution and Judicial Prudence
Justice, Legal System, Weight Scale.

America has a permanent Constitution whose word our often rendered fleeting by the mandates of judges wishing to make law rather than interpret it. This manner of imprudence – judicial activism – is hemlock to liberty and a devilish sense of law. When interpreting the Constitution, some judges desire to follow the capricious mutterings of the mob and ascend their popular clamor to the level of authoritative legal doctrine. Judges swayed by popular whim give political effect to the law. This type of activism is the product of judicial expediency and it occurs when courts become enthusiastic about rewriting the law and declare “what the law should be”. Vitality within the judiciary is not an advantage, undermining the fabric of the Constitution is no virtue. According to judicial activists, we should adopt the Constitution to each age. This philosophy debases the rule of law as the fundamental center of our free civilization. Any Constitutional structure that allows for the periodic misrepresentations of its words certainly leads to piecemeal encroachments of public liberty. The Constitution should not be reduced to a series of judicial pronouncements that may, in the future, reveal themselves as fettered and nightmarish excerpts of transient wisdom.

Alternatively, judges that hold steadfast to the Constitution and cultivate a legal faith for its text, preserve the design structure of our republic. These judges perceived as literalist or textualist, maintain that the Constitution specifically provides for a remedy if a social or political change is deemed necessary. Article V of the United States Constitution provides for proposed amendments to take place. This article diminishes the necessity for judicial activism.

Literalist also maintains that the court is not omnipotent because their powers are limited to interpreting the law. Furthermore, a policy is for the elected branches of government that represent the will of the people. Judicial Interpretation must proceed with our rigid discipline towards the Constitution to ensure liberty for our citizens. To literalist, “each word in the Constitution is a command”. The written United States Constitution is a unique addition to the history of political institutions. Justice Hugo Black best explains a similar position in his book, a Constitutional faith:

I cannot close without saying a few words to express my deep respect and boundless admiration and love for our Constitution and the men who drafted it… My experiences with and for our government have filled my heart with gratitude and devotion to the Constitution which made my public life possible. That Constitution is my legal bible; its plan of our government is my plan and its destiny is my destiny. I cherish every word of it, from the first to the last, and I personally deplore even the slightest deviation from its least important commands. I have thoroughly enjoyed my small part in trying to preserve our Constitution with the earnest desire that it may lead the fondest hope of its creator, which was to keep this nation strong and great throughout countless ages.

Judicial prudence is the art of focusing on the text of the Constitution. The role of the judges is limited to reviewing and explaining the word of the Constitution, not to reconstruct the document at every societal fluctuation. Prudence is sound judgment for the role of law. Our forefathers knew that “parchment barriers” act as insufficient guards against the encroaching nature of political power. Judges may provide an additional guard for public liberty by respecting the word of the United States Constitution. In this sense judicial temperament is paramount to the limited role that courts play within our Constitutional system.

In Conclusion, the following analogy may clarify why it is necessary for both courts and citizens to sustain the idea of permanent United States Constitution.

Our forefathers have built us a ship, they have set us how to see with a faith that we shall hold to their tradition by honoring the Constitution with a “religious reverence”. Trying times have tested and weathered our ship but we remain dedicated to our course. We have always set mast for new wind and we have always triumphed without making our Constitution a mere disposal ground for our patience. Periodically we may be tempted, finding ourselves at sea with no stars insight, but it is our duty to follow the vision of the sun in the same way that our forefathers would have done. By adhering to the rule of law as a basic principal of navigation, there is no limit to our freedom and there is no port too distant for our perception.


Pete Albert III

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