Viewing the Constitution

2019| Week of September 9 | Radio Transcript #1324

“He’s an originalist.” “He’s a modernist.” “She’s a ‘living document’ proponent.”

Some, upon hearing those statements, might think they are referring to what people believe about the Bible.  Others will immediately recognize them as referring to how people view the US Constitution. And more specifically, these statements would especially refer to how judges view the constitution.

Next Tuesday, September 17, we will celebrate and recognize the 232nd anniversary of the formation of and signing of our foundational governing document, the Constitution.  How we as individuals and certainly how our judges view this document is important.

The Constitution actually made the judicial branch the weakest of the three branches. As a reminder, the legislative branch makes laws, the executive branch carries out or “executes” the laws, and the judicial branch interprets or applies the laws according to the constitution.

Given this role of the judicial branch it’s very important how a judge views the Constitution.  During spring elections in Wisconsin we frequently have a race for a seat on our state supreme court. Last year, Judge Brian Hagedorn defied all the naysayers and politicos and beat Judge Lisa Neubauer for a 10-year term on our high court. Now-Justice Hagedorn called himself an originalist.  Judge Neubauer didn’t apply any such term to herself, but court observers noted based on her political positions and general comments that she holds a “modernist” or a “living-document” position when it comes to interpreting the constitution.

Next spring, Justice Dan Kelly will be on our ballot as an incumbent justice on the State Supreme Court, seeking to hold his position.  Already at least two others have indicated they will be challenging Justice Kelly. One of the challengers, Ed Fallone, has run before and court observers consider him a “living-document” adherent, while describing Kelly, like Hagedorn, in terms of “originalist” or “strict constructionist.”

What do those terms mean when applied to the Constitution? An originalist and for the most part a strict constructionist believes the Constitution should be interpreted as the framers of the constitution originally intended it to be interpreted. They study such sources as the contemporary writings of the framers, newspaper articles from the time, the Federalist Papers, and notes from the Constitutional Convention itself.

Originalists consider the original intent to be the very best way of interpreting the Constitution. After all, the opinions of those who wrote and framed this document are, for the most part, well documented. If something is unclear in the Constitution, who better to explain it than those who wrote it?

Those judges who ascribe to the “living document” or “modernist” philosophy of constitutional interpretation believe the Constitution should be viewed in light of today. When it was written is immaterial. They consider what meaning the document would have it were written today and how modern times affect the actual words of the Constitution.  In their opinion, the Constitution is purposefully vague in areas and was intended to be flexible, even dynamic, meaning changing slowly over time as the morals and beliefs of the population shift, hence the “living document” idea.

Judges aren’t the only ones who need to decide how they view the constitution. We as citizens need to do so as well. Otherwise, it’s hard to elect judges who align with our beliefs and values.

What do you believe about how the Constitution should be interpreted? Have you read the constitution lately? Do you know what it says and what it’s about? It’s really not that long and not that hard to do. Finding it online is easy. As we prepare to recognize the anniversary of this longest-surviving constitution in the world, we need to know what it says, all seven articles and all twenty-six amendments. It’s hard to preserve something that you don’t know or understand.

Just as important as getting ourselves educated on the Constitution is educating the next generation.  Trust me, our government schools generally don’t teach the Constitution and if they do, it’s certainly not from a conservative perspective. Constitution Day is a great time to not just celebrate this one-of-a-kind document but to share the truth of our Constitution with those coming behind us.

This is Julaine Appling for Wisconsin Family Council, reminding you the Prophet Hosea said, “My people are destroyed for lack of knowledge.”

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