RUTHIEISM

The objective of a covenant is continuity. – Prof. Zev Garber

The Constitution of the United States of America is the living will and testament of this great union that is our nation. Law, as life, is neither a static nor a staid reality. Law, like life, is a viable dynamic that is ever-changing (or should) in order to meet the needs of the present day. Yet the law itself is a constant backdrop against the innumerable variables and vicissitudes of changes that life and times are wont to bring. The law, while binding, and in this sense alone, immutable, is not immune to the ebb and flow of change or the tides of the times. Nor should it be expected to be. To place such expectations on the law is both unreasonable and unrealistic. After all, even universal or natural laws, for as binding and constant as they appear to be, are full of change.

In many ways, this very argument over law is a shared argument in Judaic circles amongst those who would argue that the law was given once and for all time and can never be changed. The people on this side of the argument are considered Orthodox and they parallel those parties in American law who represent those who employ judicial restraint. Yet, even within these Orthodox circles there is disagreement, which makes a great argument for my claim in itself. There, however, also exist those on the other side of the argument that claim that while the law is binding, it has no recourse except to undergo change in order to effectively respond to the needs of the people it was originally designed to serve. These people would be more conservative in approach literally, and also parallel the arbiters of judicial activism in our American legal system. The great paradox is that the law, like life, is both constant and full of change. The United States of America’s Constitution is a living and viable document, a constant that provides a framework for our American government to operate within. Yet within this framework, there is much room for interpretation, and the way that a law is interpreted today may differ from an interpretation that took place 50 years ago.

According to our text, original intent is synonymous with judicial restraint, which can be defined as a pure and literal application or interpretation of law. In fact, “Judicial restraint is the judicial philosophy whereby its adherents refuse to go beyond the text of the Constitution in interpreting its meaning.” At the other extreme is the area of judicial activism which simply means that “Courts should see beyond the text of the Constitution or a statute to consider broader societal implications for its decisions.” In other words, the latter approach is a “think-outside-the-box” approach.

The political view point or ideology that a justice maintains largely shapes their ability to adjudicate law. Supreme Court justices make decisions, which hopefully, ultimately safeguard the Constitution, but more broadly, stand to affect countless lives in a ripple-like effect in both the present time as well as for future generations. Some justices lean toward a more liberal bent and will be more progressive in stance as a result, daring to effect social and political change with their decisions. Other Justices, whose bent is more conservative in nature will stick to the moral view of judicial restraint and as a result render decisions that, are not wont to cause change. In short, the personal viewpoint of a Justice greatly affects their professional opinions.

An example of judicial activism can be noted in the infamous case: Roe vs. Wade. “Justice Harry Blackmun’s opinion in the matter was based on a Constitutional right to privacy not found in the words of the Constitution.” To offer a counter example in judicial restraint, our textbook’s authors describe the opinion of a Justice Felix Frankfurter who chose to “Advocate judicial deference to legislative bodies (rather than take a stand, albeit, however counter) in an effort to avoid the ‘political thicket’ or the court’s entanglement.”

It is my personal opinion that the effective adjudication of law is to blend or fuse evenly both the attributes of restraint and activism in order to perpetuate the will of the framers by adapting the covenant of the Constitution of our great nation, which will remain a constant as long as America lives on, to the ever-changing needs of the variables of time within a given era in society. Freedom of speech is a constant protection afforded by the First Amendment in the Bill of Rights. Defining the right to burn the American flag as falling within the scope of this Constitutional right is a variable that I am sure The Framers did not have in mind when writing the bill into law. Law, covenants and constitutions, while intentionally eternal, are not static. As a great philosopher named Heraclitus once so aptly stated, “The only constant is change.”

A special thanks to Dr. James Binney for thought-provoking questions and equally thought-prodding critique, which serves to keep me focused, and on track as well as challenges me to be clear and concise in my responses.

Quoted material in this essay not distinctly attributed in the body of the essay are the collective works of: Theodore J. Lowi, Benjamin Ginsberg and Kenneth A. Shepsle

American Government: Think - Power and Purpose

A cumbersome work with infinite amounts of information... I have learned loads.... many thanks... books have always been some of my greatest teachers...