Constitutional Law
Oct. 12, 2005
People Should Govern Themselves
Letter to the Editor - In "What Country Needs More of Isn't Activist Judges But Activist Citizens" (Sept. 27 Daily Journal) author Adam Cohen discusses Supreme Court Justice Stephen Breyer's new book titled "Active Liberty: Interpreting Our Democratic Constitution."
Cohen argues that Breyer's book "stands on its own as a provocative and well-argued case for reading the Constitution in light of the Founders' greatest concern: giving the people the power to govern themselves." However, when one evaluates the article, Cohen does not support the right of the people to govern themselves.
In discussing cases that Cohen believes support the "active liberty" advocated by the book, Cohen refers to the U.S. Supreme Court's rulings on gay rights and the juvenile death penalty. The two cases that Cohen is referring to are Lawrence v. Texas and Roper v. Simmons, respectively.
In those two cases, the Supreme Court cited foreign law to in part justify its conclusions. How many Americans had the right to vote into office the foreign governmental officials who made those foreign laws? The right of the American people to govern themselves was bypassed in those decisions. Both cases struck down statutes enacted by elected state representatives.
Cohen argues that "[o]riginalists like Scalia see the Constitution as a set of rights and rules that were frozen in time when they were written." That comment is off point and intended to mislead the reader. Originalist judicial philosophy holds that the meaning of the provisions of the Constitution should be interpreted in light of the democratically ratified language of the original Constitution in its historical context, not based on the personal views of judges who happen to be on the bench at the time of the decision. Originalists believe that the American people, not unelected judges, should decide what their constitutional rights are.
Another statement that is misleading in Cohen's article is the comment that "Scalia has been one of the justices most willing to strike down congressional statutes, while Breyer has been the least willing." The reason for that is that Scalia believes that the federalism doctrine in the Constitution, including the 10th Amendment, has some meaning, whereas Breyer thinks it should be largely ignored.
Scalia is not opposed to democracy in voting against congressional statutes but instead is opposed to a federal government without any meaningful limitation on its powers. Scalia ordinarily would permit state legislatures to determine the laws democratically according to their local needs, whereas Breyer usually opts for a more powerful federal government.
Mark L. Sutton
Los Angeles
Letter To The Editor
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