2016 Voter's Guide: How Should We Interpret the Constitution?

     Stephen Breyer and Antonin Scalia used to hold debates on college campuses regarding the Constitution.  Specifically, they wanted the students to understand their differing approaches to interpreting the constitution.  Scalia was an originalist.  He believed the Constitution needed to be understood in light of its original intent.  Breyer was a loose constructionist.  He believes that the Constitution is a living document to be used as a legal guide to the changing needs of society.
     As an originalist, Scalia believed that if the constitution addressed an issue and he didn't like it, it was too bad.  He was chained to the original meaning of the text.  Using due process as an example, he wrote:  "Whereas if you say due process of law is an invitation for intelligent judges and lawyers and law students to imagine what they consider to be due process and consult foreign judges, then, indeed, you do not know what you are saying when you swear to uphold and defend the Constitution of the United States."
     As a loose constructionist, Stephen Breyer believes the interpretation of the constitution should bend to fit the needs of an evolving society.  He consults American and foreign jurisprudence for help in deciding cases. While he admits that it would be wrong for a judge to substitute his own judgment for the Constitution or for the legislature,  he admits it can be a danger.  "The greater danger is the danger of the unelected judge as a decision-maker for the elected parliamentarian congress-- member of congress.  And I think there is no way, actually, to resolve that."
     In our republic, we have a danger of one branch or another overstepping its boundaries.  In this case, Breyer sees the error of a judicial decision carrying the force of law, yet believes it cannot be avoided.  How does that work?
      Before the Roe v. Wade decision, abortion was illegal in all 50 states.  When the court found a right to abortion in the right to privacy, the judgment of all federal and state legislatures was summarily dismissed.  The same was true in the case of Gay Marriage.  A court case opened the door to gay marriage without the approval of one official elected by the people.
     Advocacy groups have turned to the courts to progress their agenda.  It is easier to advance your cause through a court system with the hubris to trust their own judgment than to convince a legislature that must go home to face its electorate.
     Scalia was right.  We will miss his voice of reason on the court.  This fall, elect a president who understands the dangers inherent in loose construction of the constitution.