The Constitution & Representative Government Confounded

In recent years it has been the argument of the Left that the Constitution is in places indefinite in its meaning and that the courts must therefore assign a meaning where a self-evident one is absent. Along these lines, legal professor Sonja West writes that "eventually the law runs out and it is the justices [of the Supreme Court] who are tasked with filling in the missing parts."

This statement is astounding first and foremost because it confutes the text, framework, and over-arching logic of the Constitution. Where the law "runs out," so to speak, there is an absence of law. To fill that void necessarily constitutes the creation of law, a power expressly provided to the legislative branch by the Constitution in a host of explicit realms and to the states in all others. Article II and the 10^th Amendment are quite clear on this.

The notion that the judiciary is to fill "in the missing parts" (create new law) is anathema to that framework, indeed it is a direct contradiction of it. As declared in the landmark case of Marbury v. Madison, the Constitution clearly iterates that it "is emphatically the province and duty of the judicial department to say what the law is" (emphasis added), not to create law. It is the express province of the legislative, states and people to make law and the province of the federal judiciary to say what that law is, not create new law in itself.

Beyond this Professor West's conception of the judiciary's role flies straight into the face of the very idea of representative government. The declaration that it is up to the courts to create new law where there is none simply isn't reconcilable with the idea of a form of government in which laws are made by representatives who are selected by the popular consent of the citizenry. The people create the laws they are governed by through their designated representatives. The United States of America is no longer a government of, by, and for the people if it is not the people themselves, but what Lincoln dubbed "that eminent tribunal" that is "tasked with filling in the missing parts." Such a foreign conception of government flouts the will of the people and transforms them from their own rulers into the subjects of a robed oligarchy.