SAN DIEGO, March 23, 2017 — Two emotionally charged discussions are going on in our country right now, both related to the constitutional separation of powers.
First is the ongoing Senate confirmation hearings for President Trump’s Supreme Court nominee, Neil McGill Gorsuch. Gorsuch has been serving as a federal appellate judge on the Tenth Circuit Court of Appeals.
Second is Trump’s second attempt to set up a temporary ban on admitting individuals from a handful of potential terrorist-harboring nations until proper vetting requirements can be put in place.
The obstruction of the President’s executive order and his nomination of Gorsuch as a Supreme Court justice both raise questions about the power and limitations of the judiciary; they bring into focus the founding fathers’ idea of “original intent.”
Senators Patrick Leahy, D-Vt., and Dianne Feinstein, D-Calif., have a problem with Gorsuch: He says he will rely on the Constitution and America’s established laws in his rulings.
In his opening remarks at the Gorsuch hearings, Leahy said,
“While it has gained some popularity within conservative circles, originalism, I believe, remains outside the mainstream of moderate constitutional jurisprudence.”
His view is shared by Feinstein :
“Judge Gorsuch has also stated that he believes judges should look to the original, public meaning of the Constitution when they decide what a provision of the Constitution means. This is personal, but I find this originalist, judicial philosophy to be really troubling … In essence, it means that judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789. However, to do so would not only ignore the intent of the framers … it severely limits the genius of what our Constitution upholds. I firmly believe the American Constitution is a living document, intended to evolve as our country evolves.”
Feinstein seems to say that relying on the Founders’ intent actually ignores their intent because they intended for times and the Constitution to change.
That’s a clever reclaiming of the phrase. It is also devoid of historical or legal validity. The Founders provided for changing times, but not at the cost of their original intentions.
The key constitutional provision for changing the intent of the Constitution is Article V, which says the Constitution can be amended after a two-thirds vote in both houses of Congress which is ratified by three-fourths of the states.
The phrase “living document” sounds sophisticated, but means that the Constitution, including the Bill of Rights, is fluid. The Constitution has no anchor and means just what five Supreme Court justices say it means. Justices who “legislate from the bench”—choosing the result they want and then interpreting the Constitution to give it to them—would make men like James Madison spin in their living, breathing graves.
Neither Leahy nor Feinstein is on record opposing a ruling from U.S. District Judge Derrick K. Watson against Trump’s latest executive vetting order or the judge’s stated concern that the order unfairly targets Muslims.
Although the countries listed in the executive order—Iran, Libya, Somalia, Sudan, Syria, and Yemen—are primarily Muslim, they are far from all the Muslim countries. They were included due to our inability to vet persons from these countries as well as the braggadocio from ISIS promising to send operatives into America disguised as fleeing refugees from these countries.
President Trump’s latest order does continue a 90-day ban on travelers, but it exempts visa holders and permanent residents. It also removes wording of preferential status toward one persecuted religious group over another and says,
“This order shall not apply to an individual who has been granted asylum, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture. Nothing in this order shall be construed to limit the ability of an individual to seek asylum, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States” (Section 12 e).”
The United States Constitution separates the powers of our three branches of government, giving the Congress, not the Judiciary, power to “establish a uniform Rule of Naturalization.” In 1952, Congress passed the Immigration and Nationality Act which granted considerable freedom and discretion to the President:
“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” (Section 212(f).
Neither the INA nor the actual wording of Trump’s executive order seemed to concern Judge Watson nearly as much as campaign statements from candidate Trump, who suggested that we temporarily halt Muslim immigration in general “until our country’s representatives can figure out what the hell is going on.”
Says Watson in part of his 43-page opinion,
“a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion.”
It’s time for a consistency check: To Senators Leahy and Feinstein and any others who reject the idea of courts ruling according to “original intent,” what suddenly makes Trump’s “original intent” more important than the original intent of the framers of the Constitution?
This is Bob Siegel, making the obvious, obvious.
Bob Siegel is a weekend radio talk show host on KCBQ and a columnist. Details of his show can be found at www.bobsiegel.net