Creative Constitutional Interpretation as Justification for Rule by the Supreme Court

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Lino A. Graglia.

Contemporary constitutional scholarship presents the puzzling phenomenon of scholars endlessly writing and debating methods of constitutional interpretation as the central issue to be decided despite the apparent fact that the Constitution plays very little role in the Supreme Court’s so-called constitutional decisions. Constitutional law is the product of judicial review, the extraordinary power, suspect in a democracy, of unelected judges to overturn social policy choices made by elected legislators and other officials of government ostensibly on the ground that they are prohibited by the Constitution. The reality is that our very old and very brief Constitution, even as amended, does not and cannot provide answers to contemporary controversial social problems. It precludes very few policy choices. The Supreme Court’s rulings of unconstitutionality are, therefore, necessarily almost always the result of the policy preferences of a majority of the Justices and their willingness to substitute them for the preferences of legislators.1 The central issue of constitutional law, therefore, is not how the Court should interpret the Constitution, but whether the Court should be the most important institution of American government with the power to remove from the ordinary political process any policy issue it chooses and assign it for final decision to itself. In essence, it is whether decision making by majority vote of a committee of nine unelected officials effectively holding office for life and deciding for the nation as a whole from Washington, D.C., is an improvement of the system of representative self-government in a federalism with separation of powers created by the Constitution. The function of unusual alleged methods of constitutional interpretation is to obscure that issue.

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