Shades of the Kentucky and Virgina Resolves — this critique of Supreme Court Nominee Samuel Alito is premised on a simple, radical, and, in my view, sound theory of the Constitution. The main drawback of this piece is that it’s a bit nitpicky re Alito’s comment that his job is to interpret the Constitution. Look, I agree with the author that neither the Court nor the federal government should have the final or sole authority to construe the Constitution, espeically vis-a-vis the States’ interpretation. It is true that the Constitution should be viewed as compact among States and the federal government as merely the agency created by this compact; and so only the parties to the compact–the States–should be able to construe its terms, not the very agent created by it. However, the compact does create a Supreme Court and two other branches that are supposed to be bound by the Constitution; and the Court’s job is necessarily one of interpretation. It is definitely preferably for a Supreme Court Justice to try to interpret the Constitution instead of reading into it what he wants; and of course when the Court hears any cases it is authorized to hear under the Constitution, it is unavoidable that the Justices do some construing or interpreting, if only to decide if they have jurisdiction in a given case.
And the piece also seems to pettifog over the definition of “rights”–when it harps on the fact that the Bill of Rights did not “create” any Constitutional rights, but rather only recognize that the federal power does not extend to breaching these pre-existing rights. Still, the article steers cleer of outright crankism and gets it right, and in my view this interpretation of the Constitution would lead to a vastly preferable outcome from a libertarian and Constitutional perspective.
1:32 pm on November 25, 2005