Interpretation vs. Rewriting — The Constitution and Absolute Rights

By Richard A.Nixon, Esq

There are those who argue that each Justice of the Supreme Court may, indeed is required to, consider their own subjective values in interpreting the U.S. Constitution.

The argument begins by suggesting that the Constitution was intentionally written in broad, open-ended language and that the Court has interpreted this to mean that the Constitution is based on “evolving standards.” Of course this begs the question, i.e., it assumes that which is to be proven. The issue is whether the Court is justified in ignoring the original meaning of the terms of the Constitution and instead considering its own subjective view of what their personal experience dictates the Constitution means.

As for the Bill of Rights, (the first 8/10 amendments) history reveals that it was never intended to apply to the states. It is clear beyond dispute that the Founding Fathers intended the Bill of Rights to apply to the federal government only. It was only by applying Orwellian logic to the 14th Amendment Due Process clause that the Bill of Rights was applied to the states, thus allowing the Supreme Court to micromanage the states…all without legitimate, Constitutional authority.

Of course this reasoning runs afoul of good ol’ Marbury v. Madison (1803) itself, a staple of the Left, wherein Chief Justice Marshall stated: “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written…”

There is no legitimate authority, constitutional or otherwise, for reference to the subjective agenda of its then-members, as opposed to the text and history of the Constitution, in interpreting the Constitution. This can, and apparently does, lead to whipsaw decisions, if based on the then-justices subjective experience with the result that over 300 million People will fall prey to the moods of the then-members of the Supreme Court.

It is commonplace and beyond dispute that the fundamental task of the judicial officer, in construing the law, is to ascertain the legislative intent so as to effectuate the purpose of the law. The words of the law are the point of origin giving the words their ordinary and usual meanings and construing the law in the context as a whole of which it is a part. If the language appears ambiguous, various aids of construction are utilized such as referring to the history of the statute, avoiding redundancies, surplusage, absurd results, etc….

There is no authority for the bald assertion that a judicial officer may substitute his or her life experience in place of established rules of construction. By what mechanism has the Supreme Court exempted itself from these rules of construction? In short, none exists. The concept of a living, breathing Constitution is a sui generis, highly successful act of legerdemain, to grant the Supreme Court  power the Constitution neither expressly, nor by necessary implication, grants it.

If the Supreme Court, or any judicial officer, is permitted to consider their own, subjective experience in construing the Constitution, it renders Article V of the Constitution redundant. If the Supreme Court can amend the Constitution at the stroke of a pen, the intentionally cumbersome process of amending the Constitution via Article V has been, and can be, written out of the Constitution.

The argument goes that “virtually no right is absolute”. Of course, this is contradicted by the actual text of the 1st Amendment, which states: “Congress shall make no law respecting an establishment of religion…” Unless one applies Orwellian logic again, this means what it says…Congress shall make no law, …it is not equivocal, it is not qualified, it is absolute.  To argue otherwise invokes intellectual dishonesty which the Court has utilized in misusing the 14th Amendment due process clause as a cover for authority to apply the Bill of Rights to the states.

Many fail to distinguish between rewriting and interpreting the Constitution. Some interpretation is of course necessary. However, rewriting is neither necessary nor properly permitted. In Kelo, for example, the Court adopted previous rewrites of the 5th Amendment, eminent domain clause, changing the word “use” to “purpose”.  In Obergefell the Court redefined the word “liberty” in the 14th Amendment due process clause, which heretofore had meant freedom from incarceration or confinement, to now mean freedom to force the states to redefine marriage to include People of the same sex. Again these are rewrites, not interpretations.

As for the 14th Amendment’s Equal Protection Clause…It was intended to grant equal protection of the states to the former slaves, whether male or female, nothing more.

There are those who beg the question by simply stating, as though proving, that the Constitution is, and always was, regarded as a living, breathing document. This is simply another doctrine of the Courtby the Court and for the Court, adopted by the liberal academics, media and Hollywood, to grant power to the ruling elite at the expense of the freedom of the People.  

Many on the Right look forward to the next Republican President’s appointing of several conservative justices which will result in the Court’s magically “evolving” into the era of original meanings once again.

America - An Illusion of Freedom



Richard A.Nixon, Esq. is author of America – An Illusion of Freedom

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