Congress Applies "Living Constitution" Interpretation to Sotomayor's Race Comments

America is nation that values personal responsibility and old fashioned common sense. We respect the rule of law, as opposed to individual political preferences. We believe the law should be plain and have real, predictable consequences for the pursuit of justice.

So it is sad and ironic that many Senators have become apologists for Judge Sotomayor’s comments that a wise Latina would make “better decisions than a white male.” It’s widely argued that she really didn’t mean what she said. This is just like the (mainly) Democrat’s “Living, Breathing Document” abusive approach to interpreting the Constitution – which also instructs us that the Constitution doesn’t really mean what it says.

To ignore the plain implications of the words of the law or Sotomayor’s statements undermines our law and our values.

Sotomayor and her Democratic Party supporters have effectively admitted that what she repeatedly said was unbecoming a Supreme Court justice. They also know that their interpretation of her words that they are espousing is impossible to gather from the plain meaning of her language. Their retort is that she didn’t really mean it. No responsible parent (who is not a U.S. Senator) would accept such an excuse from their child, so why should we accept it from Sotomayor?

This retort is patently absurd and further exposes a prevalent evil in Washington. As an attorney, she is a master of language by trade. She should be held to a higher standard, especially in regards to her usage of language. It is to be assumed that every Supreme Court nominee meant precisely every word they have publicly said, including every implication that flows therefrom. To believe otherwise is offensive to her intelligence and competency as a lawyer. In other words, if they are right – if she is incapable of saying precisely what she means – then she is not competent to sit on the court.

This being said, I assume for the rest of this writing that she meant it. The question then becomes whether her feelings on this subject disqualify her from sitting on the Supreme Court or whether they merely represent a controversial ideology.

The answer is yes, she should be disqualified. However, she wont be. Congressional standards are really different than what they are purported to be. The fact is that everyone in Congress knows that Sotomayor is smart enough to know exactly what she was saying and they don’t really question whether she meant it. They are going to vote for her because they really don’t care what she said – just like too many in Congress really don’t care what the Constitution really means. Both parties, but Democrats especially, are perfectly willing to undermine the rule of law to achieve their agenda. Democrats will vote for her, because Sotomayor shares their agenda.

The “Living, Breathing Constitution” view is one that says the meaning of the words of the law change with time and that judges must decide what those changes are. Certainly some laws are intended to change with time, such as the second amendment right to bear arms. Here, there is a clearly articulable justification for an "evolving standard." This right protects an individual’s God-given inalienable right to self-defense (the part that never changes with time). But, it involves a particular technology; and since technologies change, so must this part of the law. If lasers someday become necessary for “the security of a free state,” then they may be protected for individual self-defense.

However, this philosophy is prone to great abuse. The abuse comes when such judicial changes clearly depart from the intended meaning of the words; i.e. when the part that must evolve with time is used to justify undermining the inalienable rights that never change. The plain meaning of the second amendment protects one’s right to defend oneself with adequate technology. To use the “Living Constitution” view to justify deprivation of this right is abuse.

Sotomayor and her ideological colleagues would have us believe that, like her comments, the Constitution does not really mean what it says. For example, the “interstate commerce clause” would include items solely within intrastate commerce (an abuse conservative Justice Scalia is guilty of as well). The “contracts clause” does not mean anything at all. The words “public use,” include “private use.” And we’re just getting warmed up. Both parties are equally guilty.

Another good application of this approach to the English language is to argue that Sotomayor’s words, “better decision than a white male, actually means “a wise Latina woman with the richness of her experiences would reach wise decisions” (at least this was leading Democrat Senator Patrick Leahy’s misquotation of the statement).

The United States Constitution is a document that limits the power of government by empowering individuals with inalienable rights. It calls for respect for personal responsibility and consequences for bad behavior – not special favors for minorities, majorities or Presidential nominees. Sotomayor is part of a bi-partisan team of activists who do not like this. Rather than seek broad consensus to change the Constitution in favor of their unconstitutional ideas, they seek to simply make its words meaningless through the dictatorial power of the judiciary.

Sotomayor demonstrated such abuse in the Ricci case. She issued a decision, knowing full well that her decision would be overturned. Although there was clearly something wrong with the test in question in the Ricci case, Sotomayor’s opinion was clearly an example of putting political ideology over the rule of law – as opposed to crafting a wise decision within the bounds of a law she doesn’t like.

Sotomayor spoke of the “wisdom” she apparently believes she has due to her race and sex. We learn of the value of wisdom from a Sunday School tale. In one of the most famous cases in human history, King Solomon of the Bible demonstrated great wisdom in a case involving a dispute over who was the mother of a child. His decision to cut the baby in half exposed the real mother. It gave her a chance to show her true love by begging for the child’s life.

In the Ricci case, Sotomayor showed that she doesn’t use wisdom, like Solomon, to think creatively within the bounds of principles of the law. In fact, despite years of opportunity, she lags far behind many other female jurists in producing substantial writings. Rather, she just ignores law that she doesn’t like, and justifies it with some notion that the law doesn’t mean what it says. In this case she ignored language in the Civil Rights Act of 1964 that explicitly makes it illegal to take adverse employment actions on the basis of an individual’s race; something the City explicitly admitted to doing.

However, Sotomayor’s apologists don’t like the idea of personal responsibility – so it is no surprise they don’t think Sotomayor should take responsibility for her comments. They don’t like the idea of consequences for bad behavior – so they don’t think Sotomayor should have to suffer for her statements. They don’t like the idea of judges being bound by the plain meaning of the words of the law – so it is no surprise that she will not be bound to the plain meaning of her own words.