For the past two decades, those in favor of original intent/strict contructionism have been gaining some influence over those who favor a “living constitution” interpretation of the Constitution. This seems to correlate with the rise of conservative influence over America in the past two decades. In response to the liberal activism in what was called the Warren Court, conservatives started to voice what was called the conservative critique. Most visibly, this consisted of President Reagan’s attorney general, Edwin Meese was “unhappy with many of the Supreme Courts liberal decisions of the preceding decades, Meese argued that it was meddling with the affairs of the other federal branches and especially the state governments. (TDD 387).”
In response to Meese’s complaint on judicial activism, Supreme Court Justice William Brennan Jr., argued in defense of the judicial activism in what we think is the correct and most favorable interpretation on the Constitution. Brennan puts forth many arguments in favor of what some call a “Living Constitution” view of the Supreme Courts role in judicial review.
Brennan first criticizes what those who favor Original Intent call “the intention of the Framers” in relation to how judicial review should be carried out. Brennan attacks this doctrine by saying, “It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions…the Framers themselves did not agree about the application or meaning of particular constitutional provisions, and hide their differences in cloaks of generality (DEB 325).”
This asserts that because the Framers themselves didn’t agree, it would be impossible to judge what the Framers intent would be, as there is no pure consensus on certain constitutional provisions leaving the document incomplete and ambiguous.
To view the strict constructionist versus Living Constitution in the right context, one must see who the people are behind these terms. The people who promote a strict constructionist view are almost exclusively economic and social conservatives. This isn’t a coincidence as it is clear to see that many of the major Supreme Court cases of the past century have sided with a economically and socially liberal view.
This suggests that conservatives wouldn’t be against judicial activism if the courts ruled in their favor, for instance what if the Supreme Court all of the sudden ruled against legal abortion, banned gun laws, and got rid of welfare? If this happened the very same people who were once strict constructionist and anti-judicial activism would convert to a pro-judicial activist view, and vice versa with liberals. Which leads me to profess that I only prescribe to pro-judicial activism philosophy because they have made “liberal” decisions in the past.
Brennan of course gives other reasons for a Living Constitution other than the fact that the court has made liberal decisions. He argues that a Living Constitution serves as a check against unconstitutional and poor majoritarian rule by the legislature. Brennan reports that an “Unabashed enshrinement of majority would permit the imposition of a social caste system or wholesale confiscation of property so long as a majority of the authorized legislative body, fairly elected, approved (Brennan 326).”
This of course relies on the values and perhaps the consciences on the judges, who don’t have to play the partison politics games thanks to the lifetime term they can serve but still are put in their positions by elected officials. So if a corrupt and authoritarian elected legistlaative majority can get enough judges they approve of to Supreme Court seats, the legislative check disappears,