The Difference In Philosophy Between The Democrats And Republicans In The Selection Of A Supreme Court Justice

The average American does not understand the strategy that is involved in the selection of a Supreme Court Justice. The way that these distinguished men and women are selected is diverse between the Republican and Democratic Parties.

The philosophy of the Democrats is to select men and women who believe that the United States Constitution is a “living document,” that must evolve with each generation to accommodate the social needs of each generation.

These Justices are selected based upon their agreement to this judicial philosophy. These candidates are known as “activist judges.” Democrats make use of this method in selecting Supreme Court Justices in order to enact laws that they would never be capable of achieving by the conventional process of laws passed by the legislative branch of Congress.

The philosophy of the Republicans is to select men and women who believe that the United States Constitution is a fixed document that can only be changed by an amendment. These judges are known as “originalist judges.” These jurists believe that the Constitution should be interpreted as it is written and as the framers intended.

The problem with the philosophy that the Constitution is a living document that can be changed, it that this was never the intent of the framers of the Constitution and their greatest fear was that this would take place in later generations.

The framers were visionaries who designed the Constitution to endure forever. Their goals were not to address the specific challenges that would face our nation during every generation, but to establish the foundational principles that would sustain and guide our nation into an uncertain future.

The framers of the Constitution could never have imagined that a woman would be allowed to murder her baby in the womb. The originators of the Constitution were adamant that same-sex relationships would erode and eventually destroy the fabric of American life.

There is no mention of a woman’s right to end her pregnancy in the Constitution. There is no mention of same-sex couples having the right to marry in the U.S. Constitution.

The Founding Fathers And Same-Sex Relationships

When the government of the United States was founded, homosexuality was considered a capital offense.[1] In all of the original thirteen colonies and later, all fifty of the United States, sodomy was punished by severe penalties with several states invoking a sentence of death, such as New York, Vermont, Connecticut, and South Carolina.[2] Thomas Jefferson authored a bill that called for dismemberment as the punishment for sodomy in the state of Virginia.[3]

Thomas Jefferson Dismemberment for Sodomy

The founders of our nation and the authors of our Constitution, recognized the threat of Same-sex relationships for American society. When these men constructed the laws of America, the foundation that was used for the Constitution came from Blackstone’s commentary on the Law. In Blackstone’s commentary, he details the acts of homosexuality as a “crime that is malignant, detestable, and against nature…”[4]

During the institution of laws for the state of Virginia, in 1610, the 9th law of the New Colony of America, stated:

“No man shall commit the horrible and detestable sins of sodomy”

The Founding Fathers would find it unbelievable that our government today, has granted the same rights of marriage and family to Same-sex couples, that are guaranteed to heterosexual couples.

These men understood that to accept homosexuality as a socially viable alternative and right of the people, would undermine and erode the entire moral foundation of our nation.

The methods by which homosexual activists have pressured lawmakers and government leaders; using the guise of equal rights as the basis for their arguments, has astonished those who have watched this take place.

The Framers Of The Constitution And Abortion

The argument used to secure a woman’s right to an abortion is that persons have a right to privacy and this includes the right to determine what a woman can do with her own body.

The United States Constitution makes no express right to privacy. The Bill of Rights describes the concern of James Madison and those of other framers for protecting specific parts of privacy, such as the privacy of religion (1st Amendment), the privacy of a persons home against government demands to house soldiers (the 3rd Amendment), the privacy of a person and his possessions against unreasonable searches (the 4th Amendment), and an individuals right against self-incrimination (the 5th Amendment’s), which also provides protection for the privacy of personal information.

It is the opinion of the originalist view of the Constitution that privacy is not expressly provided by the Bill of Rights.

Judge Robert Bork, argued that there is no right of privacy regarding abortion, in the Constitution.

Beginning is 1923, the Supreme Court began to broadly read the “liberty” guarantee of the Fourteenth Amendment as a guarantee to a broad right of privacy that has come to include decisions regarding the raising of children, procreation, marriage, and the termination of medical treatment.

The Burger Court protracted the right of privacy to include a woman’s right to abortion in Roe v Wade in 1972).

The Supreme Court stated in the 1977 in the case of Moore v. East Cleveland that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in the Nation’s history and tradition.”

In 2003, in Lawrence v Texas, the Supreme Court, determined that Texas violated the liberty of two gay men when it enforced a state law that prohibits homosexual sodomy. Justice Kennedy reaffirmed in broad terms the Constitution’s protection for privacy:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life….The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’

One question that the Court has wrestled with through its privacy decisions is how strong an interest individual states must demonstrate in order to overcome claims by individuals that they have invaded a protected liberty interest.

If the Trump presidency is successful in appointing Judge Brett Kavanaugh as a Supreme Court Justice, the Democrats and their abortion and same-sex constituents, fear that the court will find that decisions which gave a woman the right to abortion and gay persons the right to marry, were incorrectly decided.

Even if this does happen, it is highly unlikely that the entire law regarding these two decisions will be reversed. It is certain that the Supreme Court under a conservative and originalist interpretation of the Constitution, will send these matters back to the individual states to decide their fate.


[1] Robinson, B.A. (2003), “Criminalizing Same-Sex Behavior, Sodomy Laws” [On-line], URL:
[2] Barton, David (2002), pp. 306,482 Original Intent (Aledo, TX: Wallbuilders), 3rd edition.
[3] Thomas Jefferson Library of Congress, Bill authored in: 1781, Query 14; cf. 1903, 1:226-227.
[4] Blackstone’s Commentary on the Law, The Fourth, Chapter; “Of Offenses Against the Persons of Individuals.”

Categories: Gay Marriage and Same-Sex, Robert Clifton Robinson, The Founding Fathers, The Founding of America, The U.S. Constitution

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