“Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.”
- US Constitution Art I sec 2
This was the original language of the Constitution before being modified by the 14th Amendment. Mr. Duffy wants to claim that the language of a contract doesn’t change over time, but I doubt he believes that the original language of the Constitution, clearly denying suffrage to slaves, should still be enforced. The thesis of Mr. Duffy’s article, while difficult to parse, seems to be that John McCain is a better choice for President because he won’t (or claims he won’t) appoint judges to the Supreme Court who are motivated by a political ideology, and that Barack Obama will. This argument fails not only because of its speculation, but also for a lack of reason. Bad Supreme Court decisions can be overturned by the Court, just as bad decisions by the Framers can be amended. The ability to fix errors is built into our entire system of government (even if the “fix” will cost $700 billion).
Two of the decisions that Mr. Duffy cites (Plessy v. Ferguson and Dred Scott) have since been turned into examples of how cultural norms and sentiments can be turned into law, despite any now obvious violations of the Constitution. However, there may be current decisions that seem perfectly logical and rational now, but in 25 years will be the new examples of judicial extremism. The third decision cited (Roe v. Wade) is not a gaffe simply because Mr. Duffy claims it to be. Despite their best efforts, radical pro-lifers cannot deny that there is some logic and reason behind allowing a woman to make a decision that affects her life and health, just as people have a right to choose among medical treatment options. Perhaps a course in jurisprudence would help Mr. Duffy realize that judges may be making their decision, for better or worse, based on political ideology even if they are appointed without regard for any “litmus test.”
Jeff Cartwright is a 3L and can be reached Jeffrey.Cartwright@valpo.edu
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