Judging Wisely: Perspective Beyond Presidential Policies

{by Taylor Eckel}

Since the candidates started kicking up dust on the presidential campaign trail, we’ve heard a lot about policy issues. We know where each candidate stands on important issues like healthcare, life, marriage, and the economy. But the discussion of theoretical issues has been absent. Don’t get me wrong- policy issues are important and a president’s policy decisions have broad effect on the nation. I tend to take things at face value, so I had never really thought about anything other than a candidate’s positions (and accompanying record) on matters of policy until recently.

In a Constitutional Law class, my professor broached the subject during a lecture on the theories of constitutional interpretation. He pointed out that appointing justices (especially Supreme Court Justices) is the single most important duty of a president, and a president usually appoints justices with constitutional ideology similar to his own. A Supreme Court justice’s time on the bench far outlasts any president’s time in the White House, and the precedents set by the Court influence society for generations.

Four of the justices currently on the bench are over 70 years old. It is highly probable that out next president will appoint a few justices to the Supreme Court during his term. Indeed, if all of the current septuagenarians die or retire during the next president’s term, it is possible that the next man in the oval office will appoint as many justices as George W. Bush and Barack Obama combined. Certainly this is no small issue.

So how do we figure out a candidate’s view of the Constitution and its interpretation? What about his view of judicial authority? If you look on any of the major conservative candidate’s websites you won’t exactly find a statement of their views on the Constitution.

There are multiple theories of Constitutional interpretation, but there are a few key issues that can clue you in to a candidate’s position. Familiarize yourself with the two major views of Constitutional interpretation and the two major views of judicial authority.

First, does the candidate view the constitution as an aspirational document, or as a social contract? 

A candidate’s view of the nature of the constitution informs how he interprets it. Does he believe it is a set of rules for maintaining political order, or as a general, somewhat shifting vision for political greatness?

Secondly, does the candidate advocate judicial review, or judicial activism?

Judicial review is analogous to an umpire who simply calls the balls and the strikes as he sees them- either something is constitutional or it isn’t. Judicial activism is commonly called “legislating from the bench.” While all judicial decisions influence public policy to some extent, judicial activism involves crafting policy-like qualifications to determine the constitutionality or legality of an issue.

It can be difficult to wade through the political rhetoric, so don’t be discouraged if it’s hard to tell where a candidate stands on these theoretical issues. Keep your ears open, and over the months leading to the primary you’ll be able to piece together the puzzle of information to form a better picture of each candidate.