Cal Thomas: Back to the Constitution


MARY REICHARD, HOST: Today is Tuesday, July 3rd. Good morning! This is The World and Everything in It from member-supported WORLD Radio. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. 

CAL THOMAS, COMMENTATOR: The retirement of Justice Anthony Kennedy from the U.S. Supreme Court is about to bring a 60-year battle to a head. It’s almost impossible to overstate the significance.

EICHER: Commentary now from WORLD Radio’s Cal Thomas.

THOMAS: For decades the country has witnessed a fight between two sides: Constitutional Originalists and Constitutional Revisionists.

Originalists believe the Constitution speaks for itself.

Revisionists believe the Constitution says whatever the judges think it says, or even should say.

With the Kennedy retirement, it’s the Revisionists who have the most to lose, and it’s because until last week, the Revisionists had the clear upper hand.

Now they’re apoplectic. Revisionist politicians have dialed the rhetorical conflict to an eleven, which is pretty much where they’ve been since the Trump inauguration.

Revisionist Twitter has gone similarly bonkers. Journalist/author Molly Knight fired off this incendiary tweet: “How very cool of Justice Kennedy to pour kerosene on the current dumpster fire that is America. The Roe v Wade riots should provide fine entertainment for him in his retirement.”

Riots?

I mentioned a moment ago that the Originalist versus Revisionist debate has been playing out for 60 years now.

It goes back to the activist Warren Court, named after then Chief Justice Earl Warren. That court decided prayer and Bible reading in public schools was not what the Founders had in mind when writing the First Amendment.

That was just the start.

Progressives have used Revisionist federal judges to engineer society in ways it could not have done politically or legislatively.

Abraham Lincoln said it well when he noted: “We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”

The belief that government and the courts have become our masters has propelled conservative opposition to both legislating courts and big government.

The late Justice Antonin Scalia summed up the conservative, Originalist view of the Constitution when he said, “It means, today, not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”

Two former justices gave the liberal, Revisionist view of the Constitution. Oliver Wendell Holmes said: “The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.”

That’s a high-minded way of saying what the late Chief Justice Charles Evans Hughes said more bluntly, and I quote: “… the Constitution is what the judges say it is.”

President Trump and the Republican Senate have an opportunity to reverse decades of wrongful constitutional decision-making.

Reports are the president may make his decision as early as July 9th. Let the battle begin.

For WORLD Radio, I’m Cal Thomas.


(AP Photo/J. Scott Applewhite, File) In this June 1, 2017, file photo, the justices of the U.S. Supreme Court gather for an official group portrait to include new Associate Justice Neil Gorsuch, top row, far right at the Supreme Court Building in Washington. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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