Info on Supreme Court website is controversial

By Thomas L. Jipping
web posted July 24, 2000

These days it's tougher than ever to know how your money is being used. You subsidize political causes and groups through contributions by companies with which you do business. The government uses your tax dollars to promote views through education, views with which you might strongly disagree.

Another example recently came to my attention and you should know about it. The Supreme Court now has its own Website, paid for with your tax dollars. The address is and I encourage you to check it out. There's information about the Court's schedule, when cases will be argued, how to be admitted to practice before the Court, the Court's rules about its jurisdiction or filing motions, that sort of thing.

But then there's a section called "The Court and Constitutional Interpretation" and here's where the controversy begins. The fifth paragraph reads like this: "The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court's considered judgment, conflict with the Constitution. This power of 'judicial review' has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a 'living Constitution' whose broad provisions are continually applied to complicated new situations." Four paragraphs later, it states that America's founders left the Constitution "open to future elaboration to meet changing conditions."

That's it. The taxpayers reading this have no clue that anything about these statements is controversial or that any other view even exists. It appears to be a fact, an immutable principle of the universe, as set in stone as the law of gravity. But think about it for a minute. Words are very important and should be chosen with great care. Does the Supreme Court really have the authority to invalidate legislation which "in the Court's considered judgment" conflict with the Constitution, or which actually conflict with the Constitution? Since the Court has reversed its own supposed interpretations of the Constitution more than 200 times, its so-called considered judgment is not always very good. Yes, it must use judgment in determining what the Constitution means and whether legislation conflicts, but if the Court has any power to strike down legislation at all, it is power to strike down legislation that actually conflicts with the actual Constitution. The difference is very important. This wording puts the spotlight on the Court, while it should put the spotlight on the Constitution.

The second problem is even worse. The notion of a "living Constitution" has long been highly controversial and, in fact, is a very recent development. This cliché has two possible meanings, one popular but very wrong and the other unpopular but absolutely right. The Constitution can live by its meaning constantly changing or live in its application of settled meaning to new circumstances. The popular view is that judges can continually change the Constitution's meaning. One day the First Amendment prohibits a narrow establishment of religion, the next it prohibits a broad endorsement of religion. One day the Constitution allows the states to ban abortion, the next the Constitution won't even allow states to ban partial birth abortion. America's founders fundamentally opposed this view and, in fact, this activist idea of a morphing, shape-shifting Constitution robs the document of the claim to be law at all.

On the other hand, the Constitution can live without being re-written, morphed, or manipulated. The Constitution remains what its framers produced, but judges can apply that solid, unchanging meaning to new and different circumstances. Judges can apply the Fourth Amendment's principles to wiretaps even though there were no phones or wires when the Fourth Amendment was written. This allows the Constitution itself to stay firm, to in fact be the law of the land, but to be relevant to each generation.

By using the phrase "living Constitution" and claiming that America's founders believed it was open to "future elaboration," the Court's Website appears to take the activist view, the wrong view, the view rejected by the founders and invented in just the last 50 years. There's no indication of any debate about it, no suggestion that this is a controversial view, no hint that anyone ever thought otherwise.

Thomas Jefferson said that forcing people to subsidize views they disagree with is tyrannical. That's what is happening here and I urge you to say something about it. You can write the Public Information Officer at the Supreme Court. The address is: Supreme Court of the United States, One First Street, NE, Washington, D.C. 20543.

Tom Jipping is the director of the Center for Law and Democracy at the Free Congress Foundation.

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