Letter to the editor: Chemerinsky wrong about 'value choices'

Dean Erwin Chemerinsky's recent column, "Judging requires value choices" (March 15, 2016), argues that U.S. Supreme Court justices may, indeed are required to, consider their own subjective values in interpreting the U.S. Constitution. He 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 8th Amendment is based on "evolving standards of decency." 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 8th Amendment, it was never intended to apply to the states. It is clear that the Founding Fathers intended the Bill of Rights, of which the 8th Amendment is but a part, to apply to the federal government only. It was only through Orwellian logic that the Bill of Rights was applied to the states, allowing the Supreme Court to micromanage the states - all without legitimate, constitutional authority.

Of course, Chemerinsky's reasoning runs afoul of good ol' Marbury v. Madison (1803) itself, wherein Chief Justice John 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."

I see nothing, nor does Chemerinsky point out any provision, authorizing the Supreme Court to refer to the subjective agenda of its then-members, as opposed to the text and history of 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 a statute, is to ascertain the legislative intent so as to effectuate the purpose of the law. The words of the statute are the point of origin giving the words their ordinary and usual meanings and construing the statute 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 and absurd results.

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 this authority? 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 the Supreme Court.

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 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.

Chemerinsky states that "virtually no right is absolute." Of course, this is contradicted by the actual text of the First 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 Supreme 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.

Chemerinsky goes on to fail to distinguish between rewriting and interpreting the Constitution. Some interpretation is of course necessary. However, rewriting the Constitution is neither necessary nor properly permitted. In Kelo v. New London (2005), for example, the Supreme Court adopted previous rewrites of the 5th Amendment's eminent domain clause, changing the word "use" to "purpose." In Obergefell v. Hodges (2015) the court redefined the word "liberty" in the 14th Amendment's 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, a rewrite not mentioned by Chemerinsky.

Again, Chemerinsky begs 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 put forth by the Supreme Court and adopted by the liberal academics to grant power to the ruling elite at the expense of the freedom of the people.

However, Chemerinsky is to be praised for admitting that the members of the Supreme Court are every bit as political as the members of the other two branches. It's time to stop treating them as though they were/are apolitical.

Many court watchers look forward to the next Republican president's appointing of several conservative justices, which will result in the Supreme Court's magically "evolving" into the era of original meanings once again.