Popularist Constitutionalism. What a crock.

Let me begin with a few notions, as I define them. Just so we’re all on the same page:

Naturalism: In regards to law, Naturalist theorist believe that law springs from, or ought spring from, naturally endowed human rights that are factual in content along with the ontological contention that right and wrong exist.

Positivism: In regards to law, Positivist theorists believe that law ought spring from social constructs as moral values are deontological in nature (do not exist out of the context of human determination) and, hence, non-cognitive, non-factual.

Popular Constitutionalism: Interpretation of the U.S. Constitution ought be the burden of the populist whereby voting is the means by which constitutional rights are determined. This squares with the positivist contention that rights are no more than social constructs, hence a democratic approach to determining those rights ought prevail.

Judicial Constitutionalism: Interpretation of the U.S. Constitution ought be the burden of the judiciary. This can, and has traditionally been seen, through a positivist lens as well, whereby judges are the best trained to “recognize” both constitutional and non-constitutional acts as defined through the coupling of their constitutional knowledge and their grasp of the current socio-political environment.

SURPRISE! I know, I know, you thought that Supreme Court judges, in particular, are supposed to hold true to the constitution, employing as little interpretation as necessary to make judgments that jive with the constitution as written and intended by our founding father. Bwahahahaha. NOT!

And that part isn’t so problematic for me. Because, and I know you’ll hate this about me once you know, I am a naturalist. I am a cognitivist in regards to morals. Ontologically, I believe that good and bad exist, regardless of our take on it. I believe that moral statements are either true or false even when we are mistaken about their truth value , so there. I said it. And I’m better for coming out of the closet.

Now to the crockness. Because I believe that moral statements have a truth value, like scientific statements (i.e., either it’s true or false that the sky as blue = either it’s true or false that that act was good), I also believe that we should leave it to the professionals to determine that which most closely approximates the truth. Just as I wouldn’t so much want to leave it to a vote of the populous to determine whether x cancer treatment is most beneficial, I would not wish to leave it to the populous to determine whether x act was right or constitutional. Duh!

Good lord, I barely have the time to decide what to make for dinner (Bubber has green beans, cheese and chicken every night, poor kid). What kind of madness would it be for me to determine whether it’s constitutional (and right) for Schivo to let his wife die? I clearly have an opinion on it, but I certainly don’t think I’m smart enough to vote on it! And, more honestly, I don’t want those freaks that were outside wanting to give her a sip of water to be able to vote on it.

So this is why it’s such a huge deal, confirming judges. Because we must trust them to root out the truth regarding rightness and wrongness and constitutionality and do all that in the context of an ever-evolving epistemic world. Like science, we learn things every day that mold and change our ideas about reality and what we know, the same is the case with morality and law. We get closer to the truth when we learn how to better treat each other, value each other and empower each other through acknowledging our individual natural rights. Lets leave it to the professionals. But only after they prove they're right for the job.