Over at Jacks Blog – Random thoughts- Do they have meaning? there has been a debate going on in regards to comments made by Supreme Court Justice Antonin Scalia supporting a so called originalist position in interpreting the US Constitution. In recent comments to the media, Scalia defended his long-held belief in sticking to the plain text of the Constitution “as it was originally written and intended.”Though it is not relevant to the point I am making below Scalia also called his opponents “Idiots” something most Bloggers won’t even allow.
Some readers came out in support of this approach particularly XYBA who did state a legitimate point that some parties (not just governmental) “want to reinterpret what is already written in the light of expediency rather that as it was intended.”
Though it is not really my place to comment on US internal matters I responded with a long held position of my own. Before you read on please do not assume I am comparing the Bush administration to Hitler and Nazi Germany I AM NOT, as I mention I only use it as a worst case scenario when checks on power fail, or are removed. See My reply to Xyba below.
Xyba, If, as you say, “They want to reinterpret what is already written in the light of expediency rather that as it was intended,” and they are Judges of the court, then they have this right. As I mentioned Article III (of the constitution) gives The courts power of judicial review. Only an amendment to the constitution can take that away.
The Conservative party of Canada has the same beef with our judicial system for much the same reason.
In saying there is only one way to interpret the constitution then we limit judicial review if not creating the path to abolishing it.
In removing the concept of Judicial review from government then we lose another check on government.
What makes your system and ours successful is their ability to prevent abuse of power. If a party is to interpret the constitution in any manner they like, the tendency to interpret along party lines is too great, and centralizing power in one party historically had horrific results. Without a check on this, such as judicial review, you are one step closer to an oligarchy rather than a democracy.
This does not mean the document as written is being protected by the court, and therefore not a living document, on the contrary it begins the process leading to an amendment to address any misinterpretation by the court which the government, as elected by the people, sees as inconsistent with the constitution that being what currently constitutes the nation.
A check such as this works many ways and protects the people from abuse of power by any part of government, the courts or the congress or even the President.
The first thing Hitler did was to remove checks on his power with the enabling act he removed the constitutions authority over the Reich and placing power into the hands of his cabinet (one check removed) In January 1934 the Reichsrat, the upper house of the parliament, was abolished. (another check removed) In May 1933, the Nazis ordered the abolition of the independent labour unions(another check). During the spring of 1933, the Nazis moved to eliminate opposition political parties. In July, the Nazi Party became the only legal party.(yet another check)Following the death of President Hindenburg, Hitler abolished the office of president and assumed the president’s powers.(no more checks)
This is not meant as a comparison but to show the importance of a system that has checks on the abuse of power, as well as the danger of allowing these checks to be removed.