10 Principles of a Constitutional Judge

While the Constitution prevents governmentally imposed “religious tests”[1] nothing prevents citizens and groups from preferring Christians as our rulers. After all, the first Chief Justice of the U.S. Supreme Court, John Jay, said: "Providence has given to our people the choice of their ruler, and it is the duty, as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers.”[2] In my own experience of evaluating hundreds of judicial nominees and then observing their performance on the bench, I conclude that the greatest predicter of their faithful and constitutional performance on the bench is their “worldview” or “Christian faith.” For example, we had concerns about Justice Neil Gorsuch’s worldview, especially on the subject of sexual truth; those views drove his opinion in Bostock far more than his stated constitutional judicial philosophy and record.

[1] The Constitution provides that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” U.S. Const. art. VI, cl. 3.

[2] John Jay, October 12, 1816. The Correspondence and Public Papers of John Jay, Henry P. Johnston, ed. (NY: Burt Franklin, 1970), Vol. IV, p. 393, October 12, 1816.

Candidates must have the conviction that we are endowed by our Creator – not by government – with our basic rights, as recognized in the Declaration of Independence. Government is responsible for “securing” those rights and has no authority to alienate them.

The Declaration of Independence states:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness – That to secure these rights, Governments are instituted among Men ….”[1]

(Emphasis added.) There are three key points in this section of the declaration that judges must understand. First, our rights do not come from human governments, but come from God. Second, our rights are embedded into humankind from the time of creation in the same way that the law of gravity is embedded into the created word from the time of creation. Third, the job of government is to “secure” the rights people already possess, and in order to “secure” these rights, government must seek to understand God, creation, and the nature of the human rights God embedded into his created beings.

The Declaration is primarily not a theological statement but rather a governmental statement. However, given the nature of the universe, the Declaration recognizes that government cannot function outside of its existence within an order created by God. In other words, the governmental realm is housed within the larger, all-encompassing created realm. In the same way, in order for the constitutionalist judge to function in the fullness of their role, they must recognize: (1) God, (2) that human rights are granted and embedded within the created order since the time of creation, and (3) that the limited role of government is not to create rights, but rather to merely “secure” those rights that God has already endowed in all people.

[1] The Declaration of Independence, U.S. (1776).

Article III states the Judicial Role is fundamentally to decide a winner and a loser in a “case or controversy,” and never to exercise legislative power or to create policy.

Article III of the Constitution is dedicated to the Judiciary, and it outlines the parameters of judicial power. The role of the judiciary is to decide cases and controversies: “The judicial Power shall extend to all Cases … [and] Controversies ….”[1] The means that when two people in the United States have a dispute that cannot be resolved, they do not resort to a gun fight in the street, but rather they file a lawsuit and take their dispute to be resolved by a governmental court.

As courts decide cases and controversies they are limited by the law and the facts. They must: (1) determine the facts, i.e., what happened between the parties, (2) determine what laws apply to the situation, and (3) the court must apply the law to the facts of the case, and let it yield a result, i.e., a winner and a loser in a lawsuit.

A common problem occurs when courts fail to apply the law given them by the legislative branch, and instead legislate from the bench in accord with their own values and worldview. However, courts have no power to legislate, since Art I, Sec. 1 provides that “All legislative power herein granted shall be vested in a Congress.”[2] All legislative power is vested in Congress and, therefore, none is vested in the courts. Judges are required to simply recognize the law and apply it to decide cases, but they may not make law. Judges have no power to legislate from the bench.

[1] U.S. Const. art. III, § 2.

[2] U.S. Const. art. I, § 1.

In Deciding Cases, Court Should Apply the Original Textual Meaning of Laws and Constitutional Provisions.

There are two opposing camps of judicial philosophy: judicial originalists/textualists versus judicial activists. We reject the “judicial activist” philosophy because it usurps legislative power and would turn our “constitutional republic” into a “judicial oligarchy” in which the rules for our nation are made by as few as five unelected judges. Judicial activists seek to use the judiciary as a “work around” to implement new “laws” that the legislative branch is either unable or unwilling to enact.

The “judicial originalist/textualists” camp can be composed of at least four different schools that use slightly different approaches to determining the meaning of the laws at issue. An acceptable constitutional judge can subscribe to any of these schools, or a combination thereof, because all seek to apply the original, textual meaning of the laws.[1]

First, there are those who believe the original meaning of the Constitution is dictated by the original intent of its Framers (those who wrote and voted for the laws).^[2] The basic philosophy behind this approach is that those who make the law get to decide what it means if there is any ambiguity.

Second, there are those who believe the original meaning of the Constitution is dictated by the original understanding of its ratifiers.^[3] The basic philosophy behind this approach appears to be the belief that the States preceded the federal government, and ratified the Constitution; therefore, the understanding of the States should govern.

Third, there are those who believe that the original meaning of the Constitution is dictated by the original public meaning, which seeks to determine what a reasonable person would have understood the Constitution to mean at the time of its adoption.^[4] The basic theory here is that the Constitution was meant to be read and understood by ordinary people, and therefore their understanding should control its meaning.

Fourth, there is perhaps another school of thought, which one former Justice Thomas clerk has referred to as general original meaning.^[5] This view, which former Justice Thomas Clerk Greg Maggs says fits the approach of his former boss, disfavors being handcuffed to one of those three approaches and instead “looks for a general meaning shown in common by all relevant sources.”^[6] The benefit of this fourth approach is that is can draw from the strengths of the former three schools, while avoiding each schools’ vulnerabilities.[7]

An acceptable constitutional judge can subscribe to any of the schools, or a combination thereof, within the “judicial originalist/textualists” camp.

[1] Credit is given to Matthew Clark for both the inspiration for and the language used to describe the various acceptable schools within the originalism camp. Matthew Clark, Thoughts on Originalism, Dec. 22, 2021, unpublished.

[2] Gregory E. Maggs, Which Original Meaning of the Constitution Matters to Justice Thomas? 4 N.Y.U. J. L. & Liberty 494, 496 (2009).

[3] Id. at 497.

[4] Maggs, supra note 1, at 498.

[5] Maggs, supra note 1, at 495.

[6] Id.

[7] For example, one vulnerability of the “original intent” is it can be exploited by legislators who may place disingenuous comments in the legislative history of statutes. These comments may be inconsistent with the intent and meaning of the statute but may later be used by executive agencies and/or federal courts to alter or change the meaning of the statute under the “original intent” theory.

The Role of Courts to Decide Cases, and Court Need Only "Interpret" when the Text is Ambiguous.

Article III empowers judges to “decide cases.” At times, the role of “deciding cases” includes the task of “interpretation” but not always. Consider, for example, that this document is written in English; if the reader understands English, then interpretation is not necessary. The same is true in our courts. The law is written in English and, therefore, does not normally require interpretation.

On occasion, when the text of the law is ambiguous or reference to history is required to understanding the original meaning, interpretation can be a task within the judicial role of “deciding cases.” However, even then, “interpretation” is not the role of the court, but rather a task that is sometimes necessary to perform the role of “deciding cases.” The false notion that “judging” is synonymous with “interpretation” devalues the text of the law and dangerously overvalues the role of the judge to “interpret” the law. This can open the door to judicial usurpation of legislative power whereby courts purport to change the meaning of the law under the guise of interpretation.

Marshall’s Opinion in Marbury v. Madison is Primarily Correct but has been twisted: Judicial Review is Proper But does not empower judges to rewrite laws.

It is important to understand that judicial activism is not synonymous with “judicial review” as articulated by Chief Justice Marshall in his famous Marbury v. Madison[1] The concept of “judicial review” describes the legitimate and oath bound duty of judges to apply laws under a hierarchical system whereby ordinary statutes, or Acts of Congress, are subservient to constitutional provisions.  Practically, this means that if a judge honestly concludes that a certain federal statute runs expressly contrary to a constitutional provision, then that judge should apply the higher law, i.e., the Constitution even if that means that the lower law, i.e., the federal statute, is not applied.  Honest and articulate judicial review is not problematic; in fact, it is constitutionally proper.

Therefore, judicial activism cannot be simply equated to the situation that occurs when a court declares an Act of Congress unconstitutional. This is not a “per se” abuse of judicial power. It would only rise to the level of an abuse of judicial power, if in its exercise it amounted to legislating from the bench.  For example, if in striking down an Act of Congress, a judge relied upon something other than the text of the Constitution, then that judicial ruling would amount to “legislating from the bench” more popularly referred to as “judicial activism.”

[1] Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).  In Marbury, Chief Justice Marshall explained that “[T]he particular phraseology [of our Constitution] confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.”  Under this rationale, Marshall argued that judges had an oath bound duty to not apply laws that they understood to be inconsistent with the Constitution.

The Constitution is the supreme law of the land. Court opinions are binding on the parties in a case, but they are not the supreme law of the land. Courts – like Congress – can be wrong.

To understand the proper judicial role, it is necessary to review the judicial oath and the supremacy clause.  The judicial oath is provided in Article VI of the Constitution and requires that:  “all … judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution ….”[1] Judges are not on par with the Constitution but are subservient to it.

Judicial subservience to the law is also seen in Article VI of the Constitution, which identifies the supreme law of the land as the Constitution. The “supremacy clause” provides that: “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”[2] In other words, in the United States of America, the highest authority is not the President, nor Congressmen, nor Justices of the Supreme Court, but rather the document called the Constitution, and all laws made in pursuance thereof. This is why we say that we are a nation of laws and not of men.

In conclusion, the job of judges is to decide cases, not to legislate.  In deciding cases, judges must first recognize that they are oath bound to support the Constitution as written and treat it – and it alone – as the supreme law of the land.

[1] U.S. Const. art. VI, cl. 3.

[2] U.S. Const. art. VI, cl. 2.

The doctrine of stare decisis provides that the role of precedent is to guide and provide stability through the courts, not to codify opinions as legislation. It is universally agreed that stare decisis is not an inexorable command, especially on matters of constitutional law, when prior court decisions are clearly erroneous. A judge is oath-bound to follow the law, especially when it conflicts with precedent or prior opinions of other judges that are known as clearly in conflict with the law.[1]

[1] The term “case law” can be confusing because Article I, Section 1 of the Constitution makes clear that judges do not make “law.” Judges write “opinions” that explain how legislation dictates a result. Judges can aid understanding of their role by describing their decisions as “opinions of the court,” “case decisions,” or “court decisions,” rather than the misunderstood term of “case law.”

Judging should be neither activist nor passivist but focused on providing justice to the parties in the case. Judges should not seek procedural and technical escapes to deciding cases but should diligently provide justice to the parties. Judicial passivism can be as dangerous to the cause of justice as judicial activism.

Judges should have a demonstrable record of courage in order to bring the court back into constitutional alignment in the face of immense pressure.