This week the Senate has begun to formally vet Supreme Court Nominee Neil Gorsuch. The proceedings reveal as much about the judge as the senators. Two diametrically opposed views of the US Constitution and the role of judges are on display.

Put simply, the law is what it says — or, it is what judges say it is. Either judges interpret the Constitution according to its original meaning, or they interpret the “living” law according to what they think fits with the times.

The originalist view respects democracy and the right of the people to amend the constitution when they want it changed. The “living law” view elevates the unelected judge to lawmaker.

Judge Gorsuch, a federal judge from Colorado, told the Senate committee:

“When I put on the robe, I am also reminded that under our Constitution, it is for this body, the people’s representatives, to make new laws. For the executive to ensure those laws are faithfully enforced. And for neutral and independent judges to apply the law in the people’s disputes. If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk.”

Keep in mind the Constitution, like any contract, protects both parties — but more so the weaker one. Historically, people have been vulnerable to the whims of their leaders who enjoy the power to makes laws and enforce them by the sword. The US Constitution limits the powers of the powerful by designating their responsibilities and prerogatives. It protects the rights of citizens to life, liberty, and property, and not just out physical property, but our not-so-physical property like conscience, religious practice, access to information (the press), speech, and due process.

We should be wary of any effort to change that power dynamic. If your employer said, “I’d like to make our employment contract a ‘living contract’,” who would be worse off?

But that’s exactly what Senators Dianne Feinstein (D-CA), Patrick Leahy (D-VT), and others want. In the Gorsuch hearing, Senator Feinstein opined, “This is personal, but I find this originalist judicial philosophy to be really troubling. I firmly believe the American Constitution is a living document intended to evolve as our country evolves.”

But who decides what the times require? The original meaning of the law can be deciphered by analyzing the text itself and the founder’s other writings like the Federalist Papers. Judges can agree on what the text means, even if they personally disagree with the law. Under “living constitution” jurisprudence, judges decide for themselves what the text should mean or what they think the people need it to say. Such opinion making is both arbitrary and unconstrained.

In the words of late Justice Antonin Scalia, whose seat Judge Gorsuch will take on the Court, “The only good Constitution is a dead Constitution. The problem with a living Constitution in a word is that somebody has to decide how it grows and when it is that new rights are – you know — come forth. And that’s an enormous responsibility in a democracy to place upon nine lawyers, or even 30 lawyers.”

In the end, we have a choice: will the rules be based on law, or based on the whims of men?

What are your thoughts?

Should judges be free to change the rules in the middle of the game, or should the rules be agreed upon beforehand? Share your thoughts on Facebook!

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