The June 22, 2010 Wall Street Journal has published Professor Tara Smith’s LTE responding to a June 14 OpEd, “David Souter’s Bad Constitutional History“.
Dr. Smith’s reply is entitled, “Justice Souter Is Seriously Mistaken“:
John O. McGinnis and Michael B. Rappaport’s “David Souter’s Bad Constitutional History” (op-ed, June 14) nicely exposes not only a flaw in Mr. Souter’s vision of good judging, but is a helpful reminder as we head into the hearings on Elena Kagan. By guarding the Constitution against violation, the court maintains the rule of law, but the rule of law is not the equivalent of the will of the people at any given time. However adept the justices may be at reading the political pulse of the populace, law is the framework within which a majority may rule. If we allow popular sentiment to make up the rules as we go along, the Constitution is moot.
While the U.S. is often characterized as a democracy, what protects us against tyranny is the fact that we are a constitutional democracy. The people may change their laws only through constitutionally sanctioned methods. Justices sworn to uphold the Constitution are the last people who should even contemplate shortcuts past it.
Thank you, Professor Smith!
(More on objective law in the Ayn Rand lexicon.)