|Justices of the Supreme Court. Antonin Scalia is seated second from left|
How a politically conservative Justice like Scalia sees the Constitution versus how a liberal Justice like Ginsburg or Breyer sees it can help explain this phenomenon.
Liberals on the bench see the Constitution as a living breathing document that was never meant to be interpreted based on the conditions extant at the time it was written. They claim that what the framers of constitution had in mind was that it should be a relative document. One that would adjust with the spirit of the times. So that an amendment like the right to bear arms had a different meaning then than it does now. The framers never intended the second amendment to be rigidly applied if conditions changed. Which is the case today where handguns are so frequently used to commit crimes. That right is – after all - prefaced with the words, ‘A well regulated Militia, being necessary to the security of a free State…’
Conservatives are strict constructionists or ‘Originalists’ (as Scalia called them). They see the constitution to be followed as the framers originally intended. They see interpretation based on current circumstances as a virtual elimination of the founders intent. Once you start factoring modern sensibilities, you can turn the constitution on its head. For example the recent Obergfell decision by the court declaring same sex marriage protected by the equal protection clause - a right that surely was not extended to this circumstance by the framers the 14th Amendment.
It is this mindset that Orthodox Jews see when they evaluate who they support for the three branches of government. (Only two of which are directly in their hands. The members of the Supreme Court are in the hands of the President along with the advice and consent of the congress. But indirectly the voters do have a say in whom they elect that make those decisions.)
For Orthodox Jews the decisions that follow the conservative political perspective are usually the ones that fall in line with their religious perspective.
The liberal and conservative view of the constitution as being rigid or fluid is similar to the way Orthodox Jews and heterodox Jews see the Torah. For example the Torah is clear about the nature of homosexual sexual relationships being a serious violation of Halacha. Heterodoxy has gone to great lengths to re-interpret the Torah to practically praise that kind of relationship.
The views of the founding fathers were surely more attentive to traditional biblical values than are today’s liberals. So it is easy to understand why so many Orthodox Jews are politically conservative as well. This is true not only about Orthodox Jews but other faiths as well. At least those that see the fundamental dictates of the bible as something not to be tampered with.
How do I see it? Although I tend towards the more conservative perspective I am neither strict constructionist nor a liberal constructionist. I do not consider every word in the constitution inviolable the way I see the Torah. But I do believe that if we are going to have orderly society of any longevity we must have a set of guiding principles that with rare exception should not be reinterpreted because they don’t fit popular notions of acceptability.
Although I tend more conservative, on some issues I am more liberal. I am for example in favor of stricter gun control. I am also in favor of abortion rights. I am opposed to putting any restriction on abortion since there are instances where an abortion is permitted Halachcly. I do not want the government dictating when a Jewish woman may or may not have an abortion. I want Halacha to do that. To quote former President Bill Clinton, I think abortion should be safe, legal, and rare.
That said, I understand the opposition by some Orthodox advocacy groups like Agudah. They want to prevent abortion from becoming a means or birth control. While abortion is permitted under some circumstances it should not be treated as a mere medical procedure affecting only the woman it is performed upon.
The fetus is not given any value at all today except as possible body parts to be used by other patients. In my view it is immoral to see a fetus in this way. While Judaism does not see abortion as murder it does consider it sinful to destroy a potential human life. Abortion is only allowed under very specific circumstances mostly having to do with health of the mother. But because of that contingency we ought to support abortion rights despite the way it is so commonly used.
I am therefore somewhere between a strict constructionist and a liberal constructionist. (There it is again… my Centrist penchant for seeing things in grey tones rather than in black and white ones.)
I for one am going to miss Scalia. He was a brilliant jurist even according to his ideological opponent. I hope his replacement will have the same judicial philosophy. If the Supreme Court is going to err, I would prefer it erred on the side of strict construction. Because even in those rare cases where I might disagree with a particular decision, the majority of them will align with my views.
The courts remaining members of the Supreme Court are equally divided: 4 conservatives and 4 liberals. The President will no doubt nominate a liberal to fill the vacancy. But that nominee will no doubt be blocked by a Republican congress that will not confirm the nomination. That means the next President will ultimately make that decision. When voting for the next President, that ought to be foremost in everyone’s mind.