The judge is always caught in an intricate dance of power between opinion and the Constitution.
Recently, Bryan Caplan put up a Facebook post by “political scientist and game designer Chris McGlothlin” on the Star Trek episode Omega Glory. That is the one where Kirk goes to a planet and instructs the Yangs about their document, “The Constitution of the United States.” The Yangs – through centuries of decline – cannot even read the document properly and do not understand its meaning. Kirk corrects them. For many originalists, Omega Glory is a metaphorical tale of how the Supreme Court and the modern legal culture have misunderstood the Constitution.
McGlothlin doesn’t seem to like the episode, but to my mind his post makes one mistake after another. First, he writes that “we never see a copy of the Bill of Rights in the bundle of aged parchments Kirk leaves them. . . . Without the Amendments, those Kohms are goners.
I am not sure what this point is supposed to mean. The Bill of Rights is part of the Constitution, so what is the problem? Moreover, the Bill of Rights is important, but these amendments are hardly the only important ones. The original Bill applied only to the federal government. If one wants additional protections against the states, one has to look to the 14th Amendment. And one must look there (and elsewhere) for equality limitations. The unamended Constitution was a great start, but one of the best things about the Constitution is that it provided for amendments, which continued to improve the document.
Second, McGlothlin writes: “And since there’s no mention of judicial review in any of the documents they have, the Kohms had better hope this planet’s copycat nature includes a Arburymay v. Adisonmay (or whatever they’d call it) on the docket soon. Otherwise, we’re once again left with dead Kohms stacked up like cordwood.” Again, there is quite a bit wrong with this view. It is simply wrong to suggest that the original Constitution did not provide for judicial review. The Supremacy Clause specifically refers to judicial review of state laws and other provisions make clear that judicial review applies to federal law as well.
And while judicial review is fine, it is hardly the only check in the Constitution. Without impeachment or midterm elections or other provisions, the President might not even listen to the Supreme Court.