# Hot Blava

The national debate will always seep over into local politics and thus, events on the national stage will find their way into Hot Blava. We hope that Hot Blava will be an interesting mixture of national issues and issues that affect Utah, and particularly Utah County where we live. Mostly, it is great to write about issues you're thinking about as it solidifies your thinking... or exposes your own irrationality. You can decide which is which.

## Wednesday, December 14, 2005

### A "Living" Constitution

My ideas about the Supreme Court have been taking shape in the last year or so, courtesy of the increased media attention on vacancies and political events. I (not surprisingly) come down pretty close to an originalist point of view. I am uneasy with the idea that a judge (or panel of judges) gets to decide what is "moral" or "right" under the guise of a "living" Constitution. That is the job of elected representatives, not appointed judges with lifetime terms.
Justice Stephen Breyer has recently published a book titiled "Active Liberty", in which he defends the "living" Constitution philosophy. Rep. Tom Feeney has an excellent review of it on National Review Online. One of the quotes from Justice Breyer's book:

> Why should courts try to answer difficult federalism questions on the basis of logical deduction from text or precedent alone? Why not ask about the consequences of decision-making on the active liberty that federalism seeks to further?

Rep. Feeney then adds:

> Breyer confirmed this view in this exchange with George Stephanopoulos on ABC's This Week on October 3, 2005:

> > Stephanopoulos: Let me get you to respond to some of your critics, one of them is Rep. Tom Feeney, a member of the House Judiciary Committee. He says nobody but a subjective, biased judge can determine what "active liberty" means. And he calls your approach jurisprudential mysticism.

> > Breyer: Well, everyone can read this and come to any conclusion they want about it. That's fine. It's his view, not my view.

> > Stephanopoulos: How do you guard against the idea that it is subjective?

> > Breyer: That's a very good question. What I try to do in the book is to show that actually a system that refers back in the judge's mind, a framework to basic purposes and then looks at consequences in light of those purposes is more likely to lead to objective decision making, is less likely to lead to subjective decision making.

While the finer points of this argument may be lost on me (what is the difference between active liberty and inactive liberty), I cannot agree with a judge looking beyond law and precedent. That is not the judge's job! If there is a problem socially, morally, etc, than the correct course to fix it is through the legislature. Not the courts.

#### 5 Comments:

At 8:15 PM, December 15, 2005, Bradley said...

  I largely agree with what you've written, but I think we need to leave a little more room for judges than you have here. I think that things can get awfully murky in real life. Recent news stories about mandatory minimum sentences have shown the problems caused by not allowing judges enough discretion.

At 1:02 AM, December 17, 2005, Keryn said...

  That's a good point, Brad. The whole idea of mandatory minimum sentencing seems to tie the judges' hands on extenuating circumstances. I don't agree with them. Sentencing seems to be part of a normal judge's job--he is not interpreting the law here, he is making a judgement based on the situation. I guess my arguement comes in when the law is being interpreted based on somebody's (potentially) far-out ideas, rather than precedent and original intent.

At 11:35 PM, December 19, 2005, Charley Foster said...

  My own position has hardened lately. I don't care if the issue is Jesus coming to Earth and eradicating all human suffering. If it isn't in the constitution then talk to your legislator.

At 12:31 AM, December 20, 2005, Keryn said...

  I can't help but agree, Charley. I try not to have purely political opinions that are absolutist, but my opinion on this question is about as far over to one side as you can get.

At 11:26 AM, December 21, 2005, Charley Foster said...

  I like J. Thomas's dissent in Lawrence v. Texas: "[T]he law before us is uncommonly silly. If I were a member of the Texas Legislature, I would vote to repeal it....Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situtated as I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy."

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