Having followed the Ketanji Brown Jackson Supreme Court nominee hearings, I find it not only astounding that one of the most important lines of questioning was suspiciously absent when the Republican Leadership questioned Ketanji Brown Jackson, but it was also nowhere to be found in our popular media’s discussions on the topic. That question is, how does one legitimately determine when an act violates a provision of our federal Constitution, or its constitutionally delegated powers?
In 1968 at a lecture at Columbia University the notable U.S. Supreme Court Justice, Hugo L. Black, emphatically pointed out: “The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges’ views of fairness, reasonableness, or justice.”
So, how does one who is sincerely determined to be obedient to “this Constitution”, which every Supreme Court Justices takes an oath to do, determine when an act violates a provision of our federal Constitution, or goes beyond delegated constitutional limits? Is it not reasonable that every Supreme Court nominee ought to expound upon these questions and give their assurance to enforce what the people have willingly agreed to when adopting the Constitution, rather than what they believe it ought to mean?
Having been dedicated to answering these very questions for over forty years I must say, Thomas Jefferson was spot on when he addressed this very subject and wrote: “On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”–Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.
Indeed, those who reject abiding by the text of our Constitution, and the intentions and beliefs under which it was agreed to as documented from historical records [our Constitution’s framing and ratification debates which give context to its text], wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.
So, why is it that our Republican Party Leadership failed in its duty to pursue this line of questioning during the Ketanji Brown Jackson hearings, and was not even pursued, to the best of my knowledge, by our popular media? Keep in mind the wise observation of Chancellor James Kent, in his Commentaries on American Law:
"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void.”
Finally, and in the words of Justice Story, “If the Constitution was ratified under the belief, sedulously propagated on all sides that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?”
JWK
The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it. _____ HOME BLDG. & LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934)
