Why We Need Constitutionalist Judges

Evangelicals tend to want judges and Supreme Court justices who might be described as “originalists,” “constitutionalists” or “strict constructionists.” In fact, one reason so many evangelical Christians voted for Donald Trump in the 2016 presidential election was because of his promise to appoint judges with this particular approach to law. But what is it about such judges that attracts evangelicals? And what does any of it have to do with the Christian faith and the Great Commission? Decision asked Rena Lindevaldsen, professor of law at Liberty University, to explain.

The Declaration of Independence proclaims that there are certain “self-evident” truths, including that “all men are created equal” and are “endowed by their Creator with certain unalienable rights.” The Declaration then lists three of those rights: “life, liberty and the pursuit of happiness.” 

Willing to risk their lives for the sake of freedom from a tyrannical government, the United States’ founders explained that the purpose of government was to secure these rights. The U.S. Constitution echoes these truths in its guarantee that government shall not deprive individuals of “life, liberty or property.” How courts interpret the words of the Constitution bears directly on the continued preservation of our God-given unalienable rights. 

The question generally boils down to whether courts should follow a strict constructionist or a living Constitution approach. A strict constructionist approach not only aligns with the founders’ vision for America, but it also is the best line of defense against an out-of-control government that strips its citizens of their freedoms. And two of those Constitutional freedoms—the rights of freedom of speech and free exercise of religion—directly relate to our ability to proclaim Biblical truth and our obligation to carry out the Great Commission, given in Matthew 28:18-20. 

Although we know God can move in nations where Christians are persecuted, we are blessed to live in a country where men and women have sacrificed their lives to protect our right to proclaim the Gospel so that all who believe in Him may truly have freedom. By limiting government to its enumerated powers, the strict constructionist approach protects the rights of everyone, regardless of who is in power, what your beliefs are or where you stand politically.

Some believe the strict constructionist approach inhibits freedom because it protects only those rights contemplated by the founders. As a result, many today gravitate toward the living Constitution approach. The name itself sounds appealing—living Constitution. After all, no one wants to be governed by a dead Constitution. 

Unfortunately, the living Constitution approach represents a judicial philosophy where judges actually change the meaning of words in the Constitution to reflect what they believe the law should be. Under this approach, the Supreme Court found a right of privacy in the Constitution despite the fact that the word privacy does not exist in the document. Similarly, the court has used the “liberty” guarantee to protect an ever-growing list of “rights” that unquestionably were not contemplated by the founders. Advocates of the living Constitution approach say that they should not have to wait for the legislature to take action, even though the Constitution delegated to the legislature, not to judges, the authority to make law. 

The strict constructionist approach, on the other hand, acknowledges that power resides in the people, except that which is expressly granted to government. Thus, if a right is not written in the Constitution, the judiciary lacks authority to “discover” such a right simply because it believes the law should be different. This does not mean we have a dead Constitution. Rather, Article V contains a built-in process to make changes via Constitutional amendments. Thus, our Constitution is alive and well; it’s just that some people would like for changes to be made more quickly and by the branch of government tasked with interpreting, not making, law. Even in the 1803 decision of Marbury v. Madison, where the Supreme Court explained for the first time that the courts have authority to say what the law is, the court did not say the Constitution gave the courts power to make new law.

The strict constructionist approach is what we expect in other areas of life. For example, we expect our landlords and lenders to follow the written terms of lease or loan documents. Otherwise, we could be evicted or our property foreclosed based upon the whims of the landlord or lender. 

Likewise, our understanding of Scripture must be based on what God’s Word actually says. We have no right to invent our own interpretation based on what we might wish it said.

The Constitution is no different. It is, in essence, a contract between Americans and their government. To permit courts to change the meaning of the words is to grant them the expansive power to change the bargained-for deal. Our founders understood the threat to our God-given liberties when any one branch of government accumulated too much power, so they intentionally divided up the powers.

They did this because they understood that mankind is inherently sinful. In Federalist 51, James Madison explained, “But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. … In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.” 

Thomas Jefferson warned we would find ourselves “under the despotism of an oligarchy” if we permitted the judiciary to slowly grab more power for itself by usurping the powers of the legislature. Unfortunately, that has been happening in the United States for decades. 

As history has repeatedly demonstrated, unchecked power leads to oppressive regimes that stifle, rather than promote, freedom. President Ronald Reagan warned that “Freedom is never more than one generation away from extinction.” One way to protect our freedom—including our freedom to live out our faith according to God’s Word and to proclaim the Gospel to others—is to rein in an unbridled judiciary that often acts more like the legislature.  ©2019 Rena Lindevaldsen

 

Rena Lindevaldsen is professor of law at Liberty University School of Law, in Lynchburg, Virginia.