Real differences between presidential candidates George W. Bush and
Al Gore are sometimes hard to find. In their second debate, when asked
about any difference on Middle East policy, Mr. Bush responded "hard to
tell." While differences on some issues are merely in degree, the
difference in kind on perhaps the most important issue in the campaign
could not be more profound. The candidates' promise to appoint
radically different judges to the federal bench will have radically
different consequences for the country and the culture.
Mr. Bush says he will appoint "strict constructionists" who will
"interpret the law, not make it." Often called restrained judges, they
believe that the people, and not they, make statutes and that these laws
mean something. They refuse to "legislate from the bench" by changing
the meaning of the Constitution to achieve political results.
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Mr. Gore says he will appoint judges who believe that "our
Constitution is a living and breathing document ... to be interpreted in
the light of the constantly evolving experience of the American
people." Last fall on ABC's "This Week" program, Mr. Gore said that his
judges will "search for the deeper meaning of the Constitution (and)
breathe life into it." Often called activist judges, they believe the
law means what they say it means.
Simply put, a restrained judge allows the people to govern themselves
and define the culture; an activist judge does it for them. But since
it is impossible to defend the notion that judges, rather than the
people, should run the country, Mr. Gore uses a few gimmicks to confuse
the issue. First, he schmoozes it up with warm fuzzies about a
Constitution that lives, breathes, evolves, grows, adapts, morphs and
But do we really want the "supreme law of the land," the thing that
ultimately protects our rights against government power, to be a
changling, a shape-shifter, especially on the whim of unelected judges?
Doesn't that place our rights and freedoms in their hands instead of our
own? As the Declaration of Independence says, government gets its
powers from the people, not from itself. It is the Constitution, a
written blueprint established by "we the people," that outlines and
lists those powers. Allowing the government (the judiciary is, after
all, part of the government) instead of the people to define its own
power turns this entire system inside out. The Constitution can apply
to (in Mr. Gore's words) the "constantly evolving experience of the
American people," but the Constitution itself must not change unless the
people change it by amendment.
Mr. Gore also avoids the freedom-busting consequences of activist
judges by reminding his political supporters of the dainties those
activist judges have doled out. He hopes the ends will justify the
means. Judges who manipulate the Constitution, however, steal the
people's freedom whether the people like the results or not. Mussolini
was still a dictator even though he made the trains run on time.
Conservatives applauded the Supreme Court's recent decision striking
down a state law it said violated parents' constitutional right to raise
their kids as much as liberals had applauded the Court's decision
striking down a state law it said violated a woman's constitutional
right to an abortion. Both decisions were wrong; the Court made up both
rights because neither exists in the Constitution.
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Finally, Mr. Gore says America's founders intended that judges have
the power to make up the law. He would have us believe that the same
founders who deliberately excluded the judiciary from amending the
Constitution actually intended the opposite, that judges may literally
amend the Constitution at will without any sanction by the people.
The argument that America's founders intended judges to have this
much power is just as false as Mr. Gore's claims that he invented the
Internet, heard the "union label" song as an infant, co-sponsored the
McCain-Feingold campaign finance bill, discovered Love Canal, wrote the
laws establishing Superfund and the Earned Income Tax Credit, helped
launch the Strategic Oil Reserve, was shot at while in Vietnam, inspired
both "Love Story" and Hubert Humphrey's 1968 Democratic convention
speech, took a leak during discussions of the infamous Buddhist Temple
fund-raiser, or that his uncle was gassed in the Balkans and his sister
was the first Peace Corps volunteer. None of these are true, and
neither is the notion that America's founders intended an activist
The founders wanted exactly the opposite -- to be clear, concrete,
and consistent about defining and limiting government power. That's why
they wrote it down. Alexander Hamilton -- one of the most prominent
founders -- wrote that the only judicial task is "interpretation" which
is "ascertaining the meaning of a ... written document." This makes no
sense if judges can create new meaning, rather than ascertain the
existing meaning, in a statute or constitution. James Madison -- the
founder singled out as the "Father of the Constitution" -- said that
interpreting the Constitution means "resorting to the sense in which
(it) was accepted and ratified by the nation. In that sense alone it is
the legitimate Constitution." Judges create an illegitimate
Constitution when they make up new meaning for it.
Mr. Bush and Mr. Gore propose appointing radically different judges
and the very fundamentals of freedom are at stake. The choice is yours.