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Illegal Use of the Constitution

Updated: Nov 6, 2020

Every Tuesday during the NFL season, the league office releases the referee assignments for that week. There were always a handful of referees that we, as coaches, dreaded to see assigned to our games. They are the refs who love to inject themselves into the game. Whether its inconsistently or selectively calling penalties throughout the game, or making a game deciding call late in the fourth quarter to maximize their TV exposure and influence the outcome, they are imposing their will on the game. Some refs are will also fall into the trap of “make-up” calls, purposely making a bad call as retribution for a previously missed call, allowing the past injustices to influence future decisions.

The refs and the umpires are supposed to call balls and strikes, and not use their power to influence a pre-determined outcome. The best referees are the ones we barely notice, who call the game fairly in accordance to the written rules of the game without injecting their own interpretations. They are dispassionate arbiters of the game for they understand that the game is not about them. The game is about the players and the play on the field.

Kentucky Attorney General Daniel Cameron has faced heavy criticism for his handling of the Breanna Taylor grand jury. He was vilified for the outcome, and his “blackness” was questioned. On CNN, a black former LAPD officer called him “skinfolk, not kinfolk.” As if there is only one way to be black, that all black people should think and act alike. His decision was not criticized based on the evidence or the law, but on his skin color.

The killing of Breanna Taylor was a tragic event, and it is heart breaking that there is not more justice for her in this case. But AG Cameron and the Grand Jury made their decision based on the laws, the evidence, the eye witness testimony, and the ballistics report. The one indictment did not feel like justice or fair compensation for Ms. Taylor’s life. It felt totally insufficient, and most people were left feeling empty.

Breanna Taylor’s mother said AG Cameron “had the power to do the right thing. He had the power to start the healing process.” But that was not his job. His decision was not based in emotion, or a desire for revenge, or even a call for social justice. It was grounded in the law, and he allowed the evidence and the facts to lead him to his decision.

Critics wanted Daniel Cameron to inject his personal feelings into the case and charge the police officers with murder even though the evidence did not warrant that charge. That would have placated the emotions of the mob, but it would have been contrary to the law and the evidence. That would not have been justice. It would have been revenge. Trying to manufacture justice this way only serves to create more injustice and more victims.

Many of the same people who wanted Daniel Cameron to inject his personal feelings into the Breanna Taylor case are concerned with the nomination of Amy Coney-Barrett to the Supreme Court. They fear that she will impose her personal Catholic beliefs on her decisions as a Supreme Court Justice? They do not want Amy Coney-Barrett to do what they criticized Daniel Cameron for not doing.

But like Daniel Cameron, Amy Coney-Barrett believes in textualism. She is not an activist Justice. Textualist Justices do not allow their personal beliefs to influence their decisions. They only look at the text of the law and the Constitution to lead them to their rulings. Activist judges, on the other hand, believe that they can bring their personal beliefs to their rulings because the Constitution is a “living” or “evolving” document, and it is their job to help that evolution of the Constitution through their decisions and judicial precedents.

Textualists believe that our rights in the Constitution are “inalienable” and “bestowed by the creator”. Activist believe that our rights come from man and government, and that is why they are so willing to disregard the text of the Constitution, and “evolve” it based on their personal beliefs. They act as the creator bestowing or denying rights based on their will.

But there are only two ways to bring the Constitution to “life”; through the Amendment process or through a Constitutional Convention. The word “amend” means to “make minor changes in (a text) in order to make it fairer, more accurate, or more up-to-date.” The amendment process is the way we evolve or modernize the Constitution, not by justices imposing their individual beliefs. Activist want to skip that process and use five like-minded Justices to rewrite the Constitution and achieve legislative goals that the politicians are unable to pass.

Senator Chuck Schumer sees Amy Coney-Barrett’s nomination as replacing “Justice Ginsburg with someone who will tear down everything she built.” What did Justice Ginsburg build? This is the difference between the two ideologies. Justice Ginsburg’s job was not to build anything. Her job was to determine the constitutionality of a law or an action based on the text of the Constitution. That’s it.

Many of the critics of Amy Coney-Barrett are concerned that she will do in her rulings what they praised Justice Ginsburg of doing, imposing her beliefs. That is why they are so concerned with her Catholicism. But unlike activists, textualists do not bring their personal beliefs into their decisions. To Amy Coney-Barrett’s critics, her conformation will return the court to textualism, but that will feel like activism to them because it will undo many of the activist decisions imposed on the Constitution over the last forty years.

The most glaring example of judicial activism is the Roe v Wade decision. No where does the Constitution address abortion. Textualists believe that where the Constitution chose to be silent, the court must remain silent. The framers and ratifiers of our Constitution knew what abortion was. There were laws on the books during Colonial times concerning abortion. The framers chose not to include abortion as a protected right nor as a prohibited act. They chose to leave it to the state legislatures. That is scary to many in Washington because suddenly the state and local elections would become almost as important as the national elections thus taking power away from Washington and returning it to the states.

If Amy Coney-Barrett and the other textualist vote to overturn Roe v Wade, they will come to their decision based solely on the fact that there is no text in the Constitution which guarantees the right to an abortion. It is a mischaracterization to claim they are acting as activist justices by imposing their personal beliefs, when they would simply be applying the original intent of the framers.

But if she and the other four textualist judges on the court go beyond the original words of the Constitution to inject their personal beliefs and create a ban on abortion, they would be acting like activist judges, and their overturning of Roe v Wade would be seen as an act of activism not textualism.

Isn’t changing people’s hearts and minds more important than changing the laws? Wouldn’t it be better that abortion remain legal, and the American people see it as the abhorrent practice that it is and thus choose never to have one, then making it illegal, but the American people see it’s okay, and they choose to have back alley abortions or self-abortions? Wouldn’t more babies and women’s lives be saved by changing hearts and minds, and not changing the laws. A free country with moral citizenry is better than an immoral citizenry ruled by a heavy-handed government.

In the end, this is about power. The Constitution was written to put limits on the power of the ruling class. But allowing the justices of the Supreme Court the ability to read their personal beliefs into the text of the Constitution beyond the original intent is bestowing power on the judicial branch far beyond the original intent of the court. This is what Democrats wanted when they had the majority in the court and this is what they fear from Amy Coney-Barrett confirmation. Do we want an activist Supreme Court Justice imposing her will on our laws? Do we want activist Attorney Generals imposing their personal feelings on legal rulings? Or do we want Justices and Attorney Generals to follow the text of the law and the Constitution to make their rulings based on the evidence?

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Judd Garrett is a former NFL player, coach and executive. He is a frequent contributer to the website Real Clear Politics, and has recently published his first novel, No Wind

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