Being Right

Perhaps the worst thing an aspiring lawyer learns in law school is the idea that the law is “what the judge says it to be.” It’s cynical, yes, but arguably (in the present day) likely even true. Such is justified under “The Living Constitution” theory, beloved of many a “progressive” law faculty. But such is wrong. It violates the Constitution and — worse — is inherently undemocratic.

While the Constitution has indeed “majestic generalities,” as Justice Oliver Wendell Holmes would describe it, allowing the judiciary a certain degree of flexibility, such is fundamentally distant from the religion propagated in law schools today that is the “living constitution.”

Former US Supreme Court Chief Justice William Rehnquist illustrates its present incarnation, a constantly evolving constitution where “non-elected members of the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so. These same judges, responsible to no constituency whatever, are nonetheless acclaimed as ‘the voice and conscience of contemporary society.’”

The catalyst for the living constitution’s early heyday can be pinpointed (appropriately enough) to contraceptives. In Griswold and Eisenstadt, despite the complete absence of the words “contraceptives” and “privacy” in the US Constitution, liberal justices declared what is not there there by simply conjuring the most annoying phrase in constitutional jurisprudence: “penumbras formed by emanations.”

This (as narrated by Mark Pulliam in Law and Liberty) led the US Supreme Court to make its most atrocious decision ever (next to Dred Scott) and that is the giving of “recognition of abortion rights in Roe v. Wade (1973) — striking down state laws nationwide.” This “emboldened liberal law professors to articulate ever more result-oriented theories, urging judges to impose their desired policy objectives, from busing students to achieve racial balance to race-based affirmative action to abolishing the death penalty, and much else.”

This outrage led future justices Antonin Scalia, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh to advance a school of constitutional interpretation known as “originalism.”

But the “original originalist” was the great legal scholar Robert Bork, who (as described by Pulliam): “believed that judges should instead play a limited role: to enforce the Constitution as written. This approach [is] often expressed as ‘judges should interpret the law, not make it’.”

Now this, Pulliam points out, “shouldn’t be controversial, but it directly challenged the dominance of the legal professoriat and the liberal interest groups that benefited from judicial activism.” Such is true in the US and such is true in the Philippines.

Bizarrely, law students are likely to think that textualism and originalism are not applied in the Philippines, the “living constitution” being the end all and be all of many of today’s legal academia.

Which is weird because the Supreme Court has not actually been silent regarding textualism and originalism: “The words used in the Constitution must be given their ordinary meaning except where technical terms are employed. As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to obtain that it should ever be present in the people’s consciousness, its language as much as possible should be understood in the sense they have a common use.”

Furthermore, if “the plain meaning of the word is not found to be clear, resort to other aids is available.” But “while it is permissible to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear.” Hence, “the proper interpretation, therefore, depends more on how it was understood by the people adopting it.” (Justice Antonio Nachura, Outline Reviewer in Political Law; citing Francisco, GR 160261; and Civil Liberties Union, 194 SCRA 317).

Why the insistence on reading the Constitution as written? Because the Constitution contains our best defense against tyranny.

And again, contrary to what many learn in law school, the people’s best protection against tyranny is not the Bill of Rights but rather our constitutional structure of separate and equal branches: “A bill of rights has value only if the other part of the constitution — the part that really ‘constitutes’ the organs of government — establishes a structure that is likely to preserve, against the ineradicable human lust for power, the liberties that the bill of rights expresses. If the people value those liberties, the proper constitutional structure will likely result in their preservation even in the absence of a bill of rights; and where that structure does not exist, the mere recitation of the liberties will certainly not preserve them.” (Scalia).

A “living constitution” upends this crucial structure, allowing activist judges to impose their will beyond the Constitution and effectively establishing a “judicial oligarchy.”

For democracy’s sake, this is something the Filipino people should clearly not stand for.


Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

Twitter @jemygatdula