In response to Matt Cappiello’s column “Alito Contructs Mediocrity” (Daily Nexus, Jan 24.), Mr. Cappiello makes numerous statements about the Constitution and the methodology for its interpretation, which ring fundamentally false. To begin, he notes that the “strict constructionist” approach wherein judges seek to interpret the words of the constitution in relation to their context within the document, and as relating to other portions of the document, rather than taking into account personal beliefs and contemporary debate over issues, is an unrealistic idea. Cappiello states the generally acceptable premise is that judges bring their own philosophy to the bench, irregardless of their principles. While this is true, the question must be raised: Does this mean not even an attempt at impartiality ought to be made?
Cappiello notes that the concept of “media bias” also fits into this debate. Very well, why not make an example? Few could argue that in some way a story will always be a little biased, but equally few could maintain that CNN and FOX couldn’t be a little more objective. Cappiello is arguing that because we can’t be totally impartial, we shouldn’t even try. This is a somewhat equivocating, highly suspect premise.
However, if subjectivity is truly so inescapable, how can one argue the constitution should even be a part of our government? If the law itself is subject to the whims of any interpreter, then how can it be identified as the same law our ancestors ratified? We are a common law society in that our laws come from the people and are available to the people. “Mystery laws” don’t fit in our society because they potentially allow the government to make up laws to fit its goals, which is fundamentally undemocratic. But if, as Cappiello suggests, the Constitution is too vague to have any one meaning, it can hardly fit the criteria necessary to make it a basis for our system. If no citizen can see the laws they are beholden to, because the final form of that law is actually the opinion of a judge, than the solution is not to interpret it at all, rather than use it as if it were concrete.
But this assumes that the semantics in the Constitution are too vague to have meaning. Surely, most people agree that there are variations within terminology, as Cappiello notes. But the vagueness in the Constitution is not universal. Cappiello states that the “necessary and proper” clause is certainly an amorphous allotment of power, but fails to realize that this very example is actually an example of the Constitution’s authors clarifying its absolute limits. Essentially, this line clarifies that the constitution lists what powers it does have, so as to prevent the creation of “unwritten” or “interpreted” powers later on in its lifespan.
In addition, it must be understood the practical ramifications of allowing judges to interpret the Constitution along their own personal beliefs. If we begin seeking the appointment of judges based on ideological left or right criteria, we are, in fact, treating the supreme court as a legislature, where the popular will of the people is represented; unless a constructivist candidate, whose allegiance is to the law, not his or her own opinions, is selected, the majority electorate’s politics, not the Constitution, will be represented by their party’s judicial pick. Yet the Constitution is in many ways a document designed to protect political minorities who lack the numbers to make their will law. Should civil rights suddenly become subject to the opinion of a set of political philosopher-kings, it is entirely possibly they might cease to protect people, if a majority of the population hostile to one or more of them is in power. The minority protection of the constitution would cease to be relevant in Cappiello’s world.
Besides just this, it is also worth noting that the stability of government is based on the popular consent of the governed; without this, a society can only survive by oppression of some form. If judges “interpret” laws to mean what they want, the legitimate means by which those laws became set, namely, the consent of those who ratified them, ceases to be, in fact, legitimate. If, as Cappiello argues, subjectivity and ambiguity are king in the judicial process, and the personal will of the justice must be the mitigating factor, constitutional decisions will no longer represent the upholding of democratically recognized principles, but the dictates of a twelve-person panel. Democracy would cease to have any true legitimacy. And that is why Alito, and his restrained judicial philosophy – though it remains to be seen if the man can hold to it – are so important to our way of life.
Paul Jones is a junior Political Science major with emphasis in International Relations.