Myth Busting: the ‘Constitutional Expert’

by Geoff Broughton

Today, public opinion is on our side.  According to a Rasmussen Reports 59% of voters believe the States should be able to ‘opt out’ of Federal Programs it does not agree with.  Compared to 47% who agreed when asked about National Health care in December.  The number jumps to 63% when asked about opting out of Federally unfunded mandates.

That is a trend in which I predict will give rise to much more attention from the opposition.  In the few articles and blogs which have surfaced so far, those who are opposed to a truly federal System as laid out by the founding fathers in our constitution, have called upon ‘constitutional experts’ to put down such silly talk of State Sovereignty, and the notion that the Tenth Amendment has any real bearing on today’s political landscape. 

One op-ed that comes to mind was from the LA Times titled Constitutional objections to Obamacare don’t hold up, back in January.  Akhil Reed Amar begins his editorial by listing his credentials.

I’m no healthcare expert, but I have spent the last three decades studying the Constitution, and the current plan easily passes constitutional muster. 

Now I am not here to argue with Mr Amar, in fact Rob Natelson already took on each of his points here.  My goal is to debunk the term, ‘Constitutional expert’ and have a little fun with Mr Amar’s credentials.  Lets see, 3 decades is 30 years which breaks down to 10,957(365 days times 30 plus seven for leap years).  A quick google search and I got that the entire Constitution plus amendments including the signature page is 8,114, or 8060 with out the signatures.  Which means he could have spent one day on each word and still had 2,897 days to do other things, perhaps the Declaration of Independence which is 1,457 words long.  I can only imagine the excitement in day one where they did an indepth study on the word: “We”.

Of course, I am being silly, but so is the idea of a ‘Constitutional Expert’.  Even with the formal language and preamble’s, the document is not all that complicated.  What Mr Amar has no doubt studied for the last 30 years is a ‘case law’ look at Supreme Court decisions, and how those decisions have radically redefined what was originally written by our founders.

We know that our founders studied the works of Blackstone, John Locke, Montesquieu, and Cicero and very much believed in Natural Law.  The Declaration and Constitution are filled with Natural Law precepts like unalienable rights and separation of powers.  Up until the early 1900’s the prevailing theory in jurisprudence was something known as Legal Formalism

From Wikipedia Search of Legal Formalism:

Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts, suggesting that investing the judiciary with the power to say what the law shouldbe, rather than confining them to expositing what the law does say, violates the separation of powers.(emphasis added)

At this time, a theory called Legal Realism began to become popular, most often connected with Oliver Wendell Holmes.  But more important to our history is a man named Roscoe Pound who believed in something called Social Jurisprudence. 

From Wikipedia Search of Legal Realism:

Legal realists advance two general claims: 1) Law is indeterminate and judges, accordingly, must and do often draw on extralegal considerations to resolve the disputes before them. 2) The best answer to the question “What is (the) law?” is “Whatever judges or other relevant officials do“.(emphasis added)

Why is knowing who Roscoe Pound is so important ?

From Wikipedia Search of Roscoe Pound:

In 1910 Pound became professor of law at Harvard. He was dean from 1916 to 1936 during what was called Harvard Law School’s “golden age”. He helped shape a faculty and program of legal education equipped to implement his concept of sociological jurisprudence. A large number of the law school graduates were active in formulating policies of Franklin D. Roosevelt’s New Deal, and Pound supported many of its early measures. 

This is an important point.  Either the law is what it says, or it is what a judge or other official says it is.  These two ideas cannot be comingled can they?  Our method of selecting Supreme Court Justices makes predicting the outcome of any particular case difficult.

From a Wikipedia search of the Supreme Court:

There are a number of ways that commentators and Justices of the Supreme Court have defined the Court’s role, and its jurisprudential method:

Current Associate Justices Antonin Scalia and Clarence Thomas are originalists; originalism is a family of similar theories that hold that the Constitution has a fixed meaning from an authority contemporaneous with the ratification, and that it should be construed in light of that authority. Unless there is a historic and/or extremely pressing reason to interpret the Constitution differently, originalists vote as they think the Constitution as it was written in the late 18th Century would dictate.

Associate Justice Felix Frankfurter was a leading proponent of so-called judicial restraint, in that he believed that the Supreme Court should not make law (which, by invalidating or significantly altering the meaning of Congressional bills, Frankfurter felt they were), and so believers in this idea often vote not to grant cases the writ of certiorari. Associate Justice Stephen Breyergenerally advocates a quasi-purposivist approach, focusing on what the law was supposed to achieve rather than what it actually says, and measuring the possible outcomes of voting one way or another.

Other Justices have taken a more instrumentalist approach (see judicial activism), believing it is the role of the Supreme Court to reflect societal changes. They often see the Constitution as a living, changing and adaptable document; thus their ruling will be in stark contrast to originalists. Compare, for example, the differing opinions of Justices Scalia and Ruth Bader Ginsburg, who is a more instrumentalist justice.

Finally, there are some Justices who do not have a clear judicial philosophy, and so decide cases purely on each one’s individual merits.

So this is why any so called expert on one side of an argument can be countered with another and why I tend to reject it altogether.  Since your study of this system is bound to be prejudiced by your philosophy of law, since Constitutional law is really Case Law.

From a Wikipedia Search of Case Law:

Which is the reported decisions of selected appellate and other courts (called courts of first impression) which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis. These interpretations are distinguished from statutory law which are the statutes and codes enacted by legislative bodies; regulatory law which are regulations established by governmental agencies based on statutes; and in some states, common law which are the generally accepted laws carried to the United States from England.

Our opponents will often be from the judicial activism approach.  But there is not a mythical high priests understanding here, no matter what the experts say.  You either believe in the Constitution as written, or you believe in the Constitution as what your masters think it means today.  For me it is like choosing between Orwell’s 1984 vs or Jefferson’s writing of the Declaration of Independence in 1776. 

I want you to google 1942 Wickard v. Filburn. In a Wikipedia search on that case you find,

The Supreme Court, interpreting the United States Constitution‘s Commerce Clause (which permits the United States Congressto “regulate Commerce . . . among the several States”) decided that, because Filburn’s wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn’s production of more wheat than he was allotted was affecting interstate commerce, and so could be regulated by the federal government.

There is no way you can read the interstate commerce clause found in Article One Section 8 which reads,  “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”, and come to the conclusion reached by the Supreme Court in 1942.  For the Courts to decide the Federal Government could control the output of a private citizen on his own property for his own use is an abomination of the Constitution and the system of Liberty it is supposed to protect.  Conservapedia goes into much more detail if you want to read more.

If you agree with me that Natural Law should be what governs a free society, then the question you have to ask yourself is:  How long will you be satisfied asking the Federal Government to limit its own powers, before you accept that the answer that an inconsistent court or legislators like Pelosi or Conyers have made clear.

CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”

Pelosi: “Are you serious? Are you serious?”

John Conyers on Congress reading the Bills?

John Conyers: “I love these members, they get up and say, ‘Read the bill’.  What good is reading the bill if it’s a thousand pages and you don’t have two days and two lawyers to find out what it means after you read the bill?”

Quotes Supporting State Sovereignty:

Alexander Hamilton:

• “It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”
• “We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.”

 James Madison:

• “The local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.”
• “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
• “Hence, a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controlled by itself.”

 Justice Scalia:

• “This separation of the two spheres is one of the constitution’s structural protections of liberty. Just as the separation and independence of the coordinate branches of the federal government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”
• “…the Constitution’s conferral upon Congress of not all governmental powers, but only discreet, enumerated ones.” 
• “It is incontestable that the Constitution established a system of dual sovereignty”

Geoff Broughton [send him email] is the State Chapter Coordinator for the Colorado Tenth Amendment Center

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Tags: Case Law, Experts, Originalism