The American Spectator

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Bob Johnson br> Bedford, Texas /p>

While I am sympathetic to the views expressed by David Yerushalmi in his article about Judge Alito, I think he fundamentally misunderstands the nature of constitutional law. Mr. Yerushalmi argues that the touchstone in matters of constitutional interpretation is "certainty." While it is true that "certainty" is one of the values of an effective legal system, it is not the goal of constitutional law, properly understood. Rather, the goal of constitutional law is to give effect to the specific, concrete political commitments made by the American people in the Constitution, whatever they may be. (See my recent article on AmericanThinker.com from 1/9/06.) Anything else constitutes judicial legislation -- however reasonable and well-intentioned -- which is not a legitimate function of courts under our Constitution.

Thus, I am troubled by Mr. Yerushalmi's argument that a particular legal principle (the example he gives is the "one-man, one-vote" rule) can become "settled" constitutional law simply because the American people are "not divided" over it and because it is a "manifestly logical rule of constitutional government grounded in a people sufficiently cohensive to form a nation." With all due respect, I have no idea what this latter reason means. But "logical rules" are not necessarily part of the Constitution, however much we (or some judge) might wish them to be. And as for the first reason given, surely whether something is popular with the public does not make it part of the Constitution, until the American people appropriately amend the Constitution to include this new point of consensus (e.g., the right of women to vote).

p>Finally, I note that the Supreme Court voted 7-2 in favor of abortion rights in Roe v. Wade , not 5-4 as Mr. Yerushalmi states. While a minor point, I think it illustrates the overall sloppiness of Mr. Yerushalmi's explanation of constitutional law. br> -- Steven M. Warshawsky br> New York, New York /p> p> David Yerushalmi replies: br> Mr. Warshawsky seems to have misunderstood what "certainty" means in the context of constitutional law, at least as set out by my essay. "Certainty" as I have defined it at the outset "arises from fidelity to the meaning of words [in context this clearly means the words in the Constitution], logic [language can never be excised from logic or they can be abused in the way they have in practice], and above all in the

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