On August 23, 1958, 46 Chief Justices from the Supreme Courts of the several states gathered together in Pasadena, California. The event drawing their presence was the Conference of Chief Justices, a regular forum for the highest judges in each state to meet and discuss important issues.

Their 1958 meeting, however, proved to be quite different from any of the other conferences. Ten chief justices had been previously assigned, as part of a committee, to produce a report and resolution to the entire conference for a vote. The subject: federalism.

36 chief justices ultimately voted in support of the resolution and report, which declared that the U.S. Supreme Court “has tended to adopt the role of policy maker without proper judicial restraint”. Eight voted against it, and two abstained.

The report spans several pages, as presented in the October 3, 1958 edition of the U.S. News and World Report (PDF), and until now, has nowhere been made available on the internet. Scanning the statement provides an interesting insight into the tenuous balance of federalism from half a century ago, and supports concern that things have not improved, now decades later.

It should be noted, first, that the chief justices, themselves products of the conventional legal system and general adherents to its philosophy, were not advocating federalism to the extent of more radical action, such as nullification. As one example, they state in their report:

Second, when we turn to the specific field of the effect of judicial decisions on federal-State relationships, we come at once to the question as to where power should lie to give the ultimate interpretation to the Constitution and to the laws made in pursuance thereof under the authority of the United States. By necessity and by almost universal common consent, these ultimate powers are regarded as being vested in the Supreme Court of the United States. Any other allocation of such power would seem to lead to chaos. (emphasis added)

Clearly, interposition and nullification were not even under consideration for these quasi-federalist chief justices. Nevertheless, they were quite concerned with an overreaching federal government whose accumulation of undelegated power seemingly knew no bounds. Here is the text of the resolution which received an overwhelmingly affirmative vote:

Resolved:

1. That this Conference approves the Report of the Committee on Federal-State Relationships as Affected by Judicial Decisions submitted at this meeting.
2. That, in the field of federal-State relationships, the division of powers between those granted to the National Government and those reserved to the State Governments should be tested solely by the provisions of the Constitution of the United States and the Amendments thereto.
3. That this Conference believes that our system of federalism, under which control of matters primarily of national concern is committed to our National Government and control of matters primarily of local concern is reserved to the several States, is sound and should be more diligently preserved.
4. That this Conference, while recognizing that the application of constitutional rules to changed conditions must be sufficiently flexible as to make such rules adaptable to altered conditions, believes that a fundamental purpose of having a written Constitution is to promote the certainty and stability of the provisions of law set forth in such a Constitution.
5. That this Conference hereby respectfully urges that the Supreme Court of the United States, in exercising the great powers confided to it for the determination of questions as to the allocation and extent of national and State powers, respectively, and as to the validity under the Federal Constitution of the exercise of powers reserved to the States, exercise one of the greatest of all judicial powers—the power of judicial self-restraint—by recognizing and giving effect to the difference between that which, on the one hand, the Constitution may prescribe or permit, and that which, on the other, a majority of the Supreme Court, as from time to time constituted, may deem desirable or undesirable, to the end that our system of federalism may continue to function with and through the preservation of local self-government.
6. That this Conference firmly believes that the subject with which the Committee on Federal-State Relationships as Affected by judicial Decisions has been concerned is of continuing importance, and that there should be committee appointed to deal with the subject in the ensuing year.

The proceeding report details several specific cases in which the balance of federalism had been pushed too far in favor of the federal government. Towards the end, the chief justices provide some compelling arguments as the foundation of their concerns:

It is strange, indeed, to reflect that, under a Constitution which provides for a system of checks and balances and of distribution of power between national and State governments, one branch of one government—the Supreme Court—should attain the immense and, in many respects, dominant power which it now wields. We believe that the great principle of distribution of powers among the various branches of government and between levels of government has vitality today and is the crucial base of our democracy.

We further believe that, in construing and applying the Constitution and laws made in pursuance thereof, this principle of the division of power based upon whether a matter is primarily of national or of local concern should not be lost sight of or ignored, especially in fields which bear upon the meaning of a constitutional or statutory provision, or the validity of State action presented for review. For, with due allowance for the changed conditions under which it may or must operate, the principle is as worthy of our consideration today as it was of the consideration of the great men who met in 1787 to establish our nation as a nation.

Further:

It has long been an American boast that we have a government of laws and not of men. We believe that any study of recent decisions of the Supreme Court will raise at least considerable doubt as to the validity of that boast. We find first that, in constitutional cases, unanimous decisions are comparative rarities and that multiple opinions, concurring or dissenting, are common occurrences.

We find next that divisions in result on a 5-to-4 basis are quite frequent. We find further that, on some occasions, a majority of the Court cannot be mustered in support of any one
opinion and that the result of a given case may come from the divergent views of justices who happen to unite on one outcome or the other of the case before the Court.

We further find that the Court does not accord finality to its own determinations of constitutional questions, or for that matter of others. We concede that a slavish adherence to stare decisis could at times have unfortunate consequences; but it seems strange that under a constitutional doctrine which requires all others to recognize the Supreme Court’s rulings on constitutional questions as binding adjudications of the meaning and application of the Constitution, the Court itself has so frequently overturned its own decisions thereon, after the lapse of periods varying from 1 year to 75, or even 95 years.

In this resolution and report we find chief justices from a majority of the states voicing concern about a dominating federal government—one to which they defer in all questions of supremacy and authority, despite brief references to the tenth amendment and domestic powers not delegated to the federal government. We find the justices “urging” the Supreme Court to exercise “judicial self-restraint” through “the power of persuasion”.

Outside of the formal resolution, one chief justice, M. T. Phelps of Arizona, vented his frustration thusly:

It is the design and purpose of the U.S. Supreme Court to usurp the policy-making powers of the nation…. By its own unconstitutional pronouncements, it would create an all-powerful, centralized government in Washington and subsequent destruction of every vestige of States Rights expressly and clearly reserved to the States under the Tenth Amendment of the Constitution.

I honestly view the Supreme Court with its present membership and predilection, a greater danger to our democratic form of government and the American way of life than all forces aligned against us outside our boundaries. (as quoted in Ernest L. Wilkinson, “The Changing Nature of American Government from a Constitutional Republic to a Welfare State”, Brigham Young University Devotional, April 21, 1966)

Half a century later, though, we enjoy more of the same—more theft of state sovereignty, more arrogation of powers nowhere delegated to the federal government, and more indifference in regards to the question of federalism and supposed “self-restraint”.

In short, asking “pretty please” to the thieves has proven almost entirely ineffective.

Nevertheless, the information here provided gives an interesting insight into the issue of federalism five decades ago, and shows how much of a failure the justices’ method of using “persuasion” has proven to be.

As with many other questions of political authority and sovereignty, rights must be asserted and claimed, not sought after through begging and allegedly persuasive pleas.

Connor Boyack [send him mail] is the state chapter coordinator for the Utah Tenth Amendment Center. He is a web developer, political economist, and budding philanthropist trying to change the world one byte at a time. He lives in Utah with his wife and son. Read his blog.

From Chuck Baldwin: Note: My son, Tim, writes today’s column. He is an attorney who received his Juris Doctor degree from Cumberland School of Law in Birmingham, Alabama. He is a former prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is author of a new book, published soon by Agrapha Publishing, entitled FREEDOM FOR A CHANGE

The arguments against the power of the states to arrest federal tyranny are as predictable as the sun coming up in the morning, and they are as philosophical in nature as the Declaration of Independence. One of the most commonly used arguments against such a State power is the United States Supreme Court (US S CT) dicta opinion in Marbury v. Madison in 1803, written by Chief Justice John Marshall. Before getting into the misunderstandings and misapplications of that infamous decision, we must first recognize the source and character of Marshall’s opinion. As Marshall himself admitted that the US is to be a country of “laws, not men,” we must establish that Marshall’s opinion does not equate to the “supreme law of the land” which the states and individuals are bound to obey. If our submission only requires that the US S CT speak, then we do not live as freemen, but as slaves.

Marshall was an ardent member of the Federalist Party (a pro-centralist party) and served as the Secretary of State in the pro-centralist administration of President John Adams, who appointed Marshall to the US S CT in 1801 at the “midnight” hour before Thomas Jefferson was sworn into office as President of the US. Marshall’s nationalist opinions were no secret either. Marshall believed that the US Constitution and Union were formed by the aggregate whole of the American people, and not by a compact of the states; that the Union formed “one nation, indivisible” and not a confederation of states; that State sovereignty as expressed in the Tenth Amendment equated more to a general idea than to any real applicable and relevant State power over the federal government; that the Constitution must be liberally interpreted for the sake of expanding federal powers at the expense of State sovereignty; and that the idea of State sovereignty was literally ridiculous. By the way, even most self-called conservatives today probably subscribe to these political beliefs, not even knowing the real historical facts behind such fallacious ideology.

Concerning Marshall’s philosophical belief relative to the formation of the USA, this historical fact must be admitted. It is crucially important for our discussion today in America. Historian and politically-motivated author, Edward Samuel Corwin, said of Marshall in his book, “John Marshall and the Constitution” (New Haven, CT, Yale Univ. Press, 1920), p. 34: “[Marshall's] attitude [to strengthen the national power and to curtail State legislative power] was determined not only by his sympathy for the sufferings of his former comrades in arms and by his veneration for his father and for Washington . . . but also by his military experience, which had RENDERED THE PRETENSIONS OF STATE SOVEREIGNTY RIDICULOUS IN HIS EYES.” (Emphasis added.) There is no question that Marshall had a pre-destined belief against State sovereignty in favor of national power. Corwin describes Marshall’s political belief regarding the US as a “nationalistic creed.”

So, is the nationalistic political persuasion of one man (appointed by a nationalistic President) and one court to form the basis of the true understanding of the nature and character of the USA? After all, Marshall admitted that the US is established by the rule of law, and not the rule of men. So, by Marshall’s own definition in Marbury v. Madison, a US S CT opinion does not establish law, but rather should reflect what the paramount law already is: “The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.” So, as the age-old question has gone: who determines whether or not the federal government has usurped power from the people of the states and from the State governments? The Marbury v. Madison believers are likely jumping up and down right now, raising their hands, saying, “Oh! Pick me! Pick me! I know! I know!” I can just see smirks on the faces of most ABA-law school graduates as they condemn anyone who would advocate another position to be true which is contrary to what Marshall presupposed to be true. Of course, their rationale goes as deep as a kiddy-pool and their thought process as far as an inner-city driveway.

Since 1803, the nationalists have pointed to Marshall’s declaration to conclusively say the states have no power over the opinion of the US S CT, for as Marshall states: “It is emphatically the province and duty of the judicial department to say what the law is.” From this, most American lawyers and law students come to the conclusion that there is no authority above and beyond the US S CT’s interpretation of the US Constitution. Whatever the US S CT rules becomes “settled law” and the states are completely bound–of course, unless the US S CT says something different later. I was taught this in law school and every other ABA-accredited law school in America teaches this. But a true legal study of Marbury v. Madison reveals that Marshall’s opinion (which was actually dicta) never addressed the issue of State sovereignty whatsoever. American historian, Forrest McDonald, reveals this fact in his book, “State’s Rights and the Union: Imperium in Imperio, 1776-1876.” McDonald states, “Marshall was careful not to claim that the Supreme Court was the SOLE or FINAL ARBITER of acts of Congress.” (Emphasis added.) Ibid., (Lawrence, KS, Univ. Press of Kansas, 2000), p. 56. This is, in fact, the case.

Perhaps most telling about Marshall’s silence on the issue of being the sole or final arbiter is the fact that just a few years prior to his decision, Thomas Jefferson and James Madison, through the Virginia and Kentucky Resolutions of 1798 and 1799, had advocated the State’s ability to actively nullify and resist unconstitutional actions from the federal government. Since Marshall’s opinion was mostly dicta anyway–meaning it had no relevance to the issue at hand–why not go ahead and state that the US S CT is the ONLY final arbiter of the US Constitution? But Marshall never did, and neither has any US S CT decision since Marbury v. Madison.

Thus, when someone suggests that the states possess the sovereign power to arrest federal encroachments outside of constitutionally enumerated powers, the nationalists emphatically argue their unsupported conclusion that the USA is one nation, indivisible, where the US S CT possesses the sole authority as the final arbiter on all matters politically relative to the US Constitution, and to suggest otherwise is treason!–even when the most authoritative sources have been so pointedly laid out to the contrary. Marshall’s opinions have not settled this matter, and the USA must come to grips with who we are, what we are and how we are.

What’s more, Marshall’s opinions of national expansion were conclusively derived from one main principle: that the USA is a nation formed by the whole people and not by individual states through a compact. This fact was admitted by Marshall-lover, Corwin, in 1920. Corwin clearly expresses this point as follows:

“The great principles which Marshall developed in his interpretation of the Constitution from the side of national power . . . were the following: ‘(1) THE CONSTITUTION IS AN ORDINANCE OF THE PEOPLE OF THE UNITED STATES, AND NOT A COMPACT OF THE STATES. (2) Consequently it is to be interpreted with a view to securing a beneficial use of the powers which it creates, not with the purpose of safeguarding the prerogatives of state sovereignty. (3) The Constitution was further designed . . . to be kept a commodious vehicle of the nation life . . . . (4) [The national government] is a sovereign government, both in its choice of the means by which to exercise its power and in its supremacy over all colliding or antagonistic powers. (5) The powers of Congress to regulate commerce is an exclusive power, so that the States may not intrude upon this field even though Congress has not acted. (6) The National Government and its instrumentalities are present within the States, not by the tolerance of the States, but by the supreme authority of the people of the United States.’ Of these several principles, THE FIRST IS OBVIOUSLY THE MOST IMPORTANT AND TO A GREAT EXTENT THE SOURCE OF THE OTHERS.” “John Marshall and the Constitution,” pp. 144-145. (Emphasis added.)

Corwin admits that all of Marshall’s opinions were based upon the presumption that the USA is a nation formed by the whole people as one body politic, and not by the individual, sovereign states via a compact. From this premise comes the vast expansion of federal power under the guise of constitutionality. Thus, if it were to be contrarily presumed that the USA is in fact a compact acceded to by the states, then the rules of interpretation that Marshall and subsequent US S CT justices used were wrong and require a different outcome. This fact cannot be overstated and is the source of all of the federal tyranny that many of you reading this article complain about. Thus, it behooves Americans to truly know WHAT IS THE TRUE NATURE AND CHARACTER OF OUR UNION: is it a National government formed by the whole people, or is it a compact among the states and acceded to by the states (otherwise known as a Confederacy)?

This article does not allow me to expound upon this subject in great depth, but it should be sufficient at this point at least to call into question Marshall’s presupposition regarding the nature and character of the USA by referring to some of the most authoritative sources on the subject during the formation of the US Constitution. Let us start with James Madison, who was one of the Federalist Paper authors and considered to be the Father of the US Constitution. In Federalist Paper 39, Madison examines the nature and character of the formation of the Union under the US Constitution. He admits that the US was formed by a federative (league of states) and NOT a national act. Madison proclaims:

“[T]he Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but . . . this assent and ratification is to be given by the people, NOT AS INDIVIDUALS COMPOSING ONE ENTIRE NATION, BUT AS COMPOSING THE DISTINCT AND INDEPENDENT STATES TO WHICH THEY RESPECTIVELY BELONG. It is to be the ASSENT AND RATIFICATION of the SEVERAL STATES . . . The act, therefore, establishing the Constitution, will NOT BE A NATIONAL, but a FEDERAL act.

“That it will be a federal and NOT A NATIONAL ACT . . . THE ACT OF THE PEOPLE, AS FORMING SO MANY INDEPENDENT STATES, NOT AS FORMING ONE AGGREGATE NATION, IS OBVIOUS from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS ASSENT OF THE SEVERAL STATES that are parties to it . . . [T]he new Constitution will . . . be a FEDERAL, and not a NATIONAL constitution.” (Emphasis added.)

Madison pens in the clearest of terms that the US Constitution is a compact assented to by the State sovereigns in their legal capacities as individual bodies politic, and NOT as one mass of people, forming one body politic. If this were not enough to at least raise a serious question as to what has been shoved down our throats for 150 years, consider that even Alexander Hamilton confirms that the US Constitution is a compact between the states, and NOT a national act of the whole people. He says in Federalist Paper 85:

“To its complete establishment throughout the Union, [the US Constitution] will therefore REQUIRE THE CONCURRENCE OF THIRTEEN STATES . . . [T]he necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the COMPACT . . . WE MAY SAFELY RELY ON THE DISPOSITION OF THE STATE LEGISLATURES TO ERECT BARRIERS AGAINST THE ENCROACHMENTS OF THE NATIONAL AUTHORITY.” (Emphasis added.)

Just in these two short excerpts from Founding Fathers, James Madison and Alexander Hamilton, we see that Marshall’s premise that the USA is a nation formed by the whole of the people and not by the compact of the states is seriously called into question, which, of course, calls into question all of the principles of constitutional interpretation and resulting conclusions which derive from that false premise.

An honest look at the presumption that only the US S CT has the power to interpret federal encroachments on State sovereignty will reveal that the states have more power than what has been admitted ever since Marshall took the position of chief justice of the US S CT. For as Marshall admits in Marbury v. Madison, “questions [that are] in their nature political . . . CAN NEVER BE MADE IN THIS COURT.” (Emphasis added.) By definition, issues of State sovereignty are in their nature political, just as a treaty between the USA and foreign countries regards the matter of political sovereignty. Therefore, when our states begin to assert their natural and sovereign right of self-defense against federal tyranny, each State will answer to their sovereign–the people–and NOT to the United States Supreme Court.

© 2009 Chuck Baldwin – All Rights Reserved

[How Progressives Rewrote the Constitution. By Richard A. Epstein. Cato Institute, 2006. xiii + 156 pages.]

“Lochner-era jurisprudence” elicits a mindless sneer from  most contemporary legal theorists. In Lochner v. New York (1905), the Supreme Court held unconstitutional a New York state law that limited bakers to a ten-hour workday, on the grounds that the law interfered with the bakers’ freedom of contract. In doing so, the law violated the clause of the Fourteenth Amendment that forbids any state from depriving anyone of life, liberty, or property, without due process of law. Critics of the decision allege that the Court’s application of “substantive due process” in this case and others like it was a legal outrage. The Court wrongly imposed its own view of economic matters, usurping popular sovereignty. As Oliver Wendell Holmes famously said in dissent, “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Further, critics of Lochner allege, the pre-New Deal Court acted in other highhanded ways to thwart the people’s will.

Richard Epstein has in How Progressives Rewrote the Constitution defied the current scholarly consensus. Contempt for Lochner-era jurisprudence stems from a carefully orchestrated campaign waged by the Progressives. This group of self-proclaimed scientific reformers contended that changed economic conditions made “freedom of contract” and other shibboleths of the laissez-faire era outdated. “The Progressives were the self-conscious social and legal reformers who occupied center stage in the period roughly from the onset of the 20th century through the election of Franklin Delano Roosevelt as president in 1932. . . . Progressives believed in the power of science and economics, employed by government, to lift up the economic and social position of the general population” (pp. 2–3).

But a problem confronted these scientific reformers. The Constitution, if interpreted strictly, seemed to bar their plans for a regulated, scientifically controlled economy. Two provisions of the Constitution, in particular, posed difficulties. The commerce clause did not give Congress any power to regulate interstate manufacturing; and as mentioned before, the due process clause of the 14th Amendment interfered with the Progressives’ plans for the states.

The Progressive legal reformers readily swept aside the “parchment barriers” imposed by the Constitution. The document, they said, must not be interpreted in a static, formal way. Rather than attempt to derive formal rules from the text, the Court should take account of sociological and economic studies of current conditions. Louis Brandeis, both as an attorney and as an Associate Justice of the Court, was the foremost exponent of the new approach. He maintained, e.g., that because many firms were large and “monopolistic,” old-style insistence on freedom of contract was unfair to workers.

Holmes brought to the fore another way of circumventing the Constitution. The Supreme Court should in almost all circumstances defer to the judgment of the legislature: the Court could set aside only legislation that lacked any rational basis.

Epstein will have none of this. Either the Constitution grants certain rights or it does not. If it does, the judiciary must interpret the law so that these rights are respected. If it fails to do so, then it abdicates its responsibility.

But here a question arises. Did the “Old Court” that Epstein defends against the Progressives in fact interpret the Constitution correctly? On the commerce clause, it unquestionably did. The commerce clause grants Congress no general control over the economy, the New Deal Court and its successors to the contrary notwithstanding.

On “substantive due process” the issue is less evident than Epstein thinks. He fails to confront the argument advanced by Raoul Berger in Government By Judiciary (Harvard University Press, 1977) that the 14th Amendment, as originally intended, did not impose the strict limits on state action that the Old Court read into it. In addition, he ought to have addressed whether the Amendment was legally ratified. Given his appropriate condemnation of Holmes’s refusal to challenge Congress, it would hardly be satisfactory for him to respond that the legal validity of the Amendment is a “political question” to be settled exclusively by Congress.

But on the ground he has chosen, Epstein is unquestionably right. The Progressives argued that new economic realities demanded state action. But their contention that labor was powerless before monopolistic businesses flies in the face of the facts: “Brandeis offered no empirical evidence about the deleterious effects of the inequality of bargaining power on the operation of the economic system, which includes an indictment of the Old Court attitude toward child labor, women in the workforce, and overall wage levels. . . . It takes little ingenuity to see that child labor was on the wane by 1918, the time that the Supreme Court explicitly held that Congress could not regulate the matter. During this same period, it is worth noting that for ‘lower skilled labor’ the hour figures showed a similar reduction” (pp. 5–6).

Progressives wanted to eviscerate the Constitution in the name of scientific reform; but their reforms were unneeded and harmful. After criticizing the attempt by some Progressives to claim that the Old Court had distorted an originally expansive reading of the Commerce Clause, Epstein appropriately remarks: “The textual and historical arguments, then, lay bare the claim that the Progressive reading of the Commerce Clause only returned us to the original Eden. So we are back to the question: why move heaven and Earth to invent an imaginary Eden so that Congress could insure the higher prices and restricted output characteristic of cartels?” (p. 72).

If freedom of contract must, in the Progressive view, be abandoned so that pseudo-scientific regulation of the economy may proceed unhindered, what about civil liberties? They too must bow before the superior wisdom of the legislature. Despite his famous dissent in Abrams v. United States (1919), in which he defended free speech, Holmes’s notion of judicial restraint paved the way for tyranny. He thought, e.g., that it was not unreasonable for a state to bar instruction in foreign languages. In the identical way the Progressives defended the need for “experiment” to solve economic regulation, Holmes declared: “I am unable to say that the Constitution of the United States prevents the experiment being tried” (p. 106). Holmes in Buck v. Bell (1927) not only condoned but enthusiastically approved another “experiment,” forced sterilization of the allegedly unfit. “Three generations of imbeciles are enough” (p. 107).

Epstein cites with devastating effect an article by Felix Frankfurter, a leading Progressive legal theorist. Frankfurter opposed state laws that restricted private schools. But the Supreme Court, he held, acted wrongly in overturning these laws. If the Court could act to protect civil liberties, how could it be stopped from impeding needed economic “experiments”? In an unsigned editorial in The New Republic (1927), Frankfurter said, “in words that must be quoted to be believed”: “In rejoicing over the Nebraska and Oregon cases [on freedom of education], we must not forget that a heavy price has to be paid for these occasional services to liberalism. The New York bakeshop case [Lochner], the validation of anti-trade union laws . . . are not wiped out by the Oregon decision. . . . For ourselves, we regard the cost of this power of the Supreme Court on the whole as greater than its gains” (pp. 106–07).

Evidently Frankfurter can be regarded as a precursor of F.A. Hayek’s The Road to Serfdom. Like Hayek, Frankfurter thought that judicial protection of civil liberties could not survive under economic planning. Unlike Hayek, he thought this was a reason to give up civil liberties. This is the upshot of the modern “scientific” doctrine that the Progressives used to combat the Old Court.

David Gordon covers new books in economics, politics, philosophy, and law for The Mises Review, the quarterly review of literature in the social sciences, published since 1995 by the Mises Institute. He is author of The Essential Rothbard, available in the Mises Store.

This review originally appeared in The Mises Review, Spring 2006.

[Courts and Congress: America's Unwritten Constitution. By William J. Quirk. Transaction Publishers, 2008. Xviii + 312 pages.]

Courts and Congress defends a revolutionary thesis. If asked, who has the final say in our government on the meaning of the Constitution, most people would say, the Supreme Court. The Court itself agrees: in the famous Planned Parenthood v. Casey (1992) decision, it declared that it could not consider reversing Roe v. Wade (1973), because the American people had come to look to the Court as their guide.

William Quirk, one of the most original Constitutional theorists of our time, challenges this view. No, he does not challenge judicial review, the power of the Court to find laws unconstitutional: this he finds solidly based. He criticizes the Court for abuses of interpretation; but so long as the Court sticks to the language of the document, all is well.

So far, you may ask, what is original about that? Do not many other critics of the Court attack its at-times-bizarre interpretive methods? Quirk’s originality rests in his taking literally, and emphasizing, a part of the Constitution that most writers ignore. According to Article III, Section 2, the jurisdiction of the Supreme Court lies almost totally up to Congress. The Court has original jurisdiction only in cases involving disputes among the states and in cases where foreign diplomats are a party. Its appellate jurisdiction is subject to whatever “rules and exceptions” Congress chooses to make. So far as lower federal courts are concerned, they stand completely at the mercy of Congress. If it wished to do so, Congress could abolish the lower federal courts altogether.

Thus, if Congress does not like the decision of the Court in Roe v Wade and its successor cases, it can take away the right of the Court to hear any cases on appeal that involve abortion. True enough, that would still leave the decision on the books, and it would presumably be binding on other courts; but in practice, it might be difficult to sustain it. If a court decided to allow restrictions on Roe contrary to the mandate of the Supreme Court, this ruling could not then be appealed to that court for reversal. Congress might, by getting rid of the federal courts completely, leave abortion entirely in the hands of the state courts. In like fashion, of course, for other controversial areas. Quirk points out that until 1875, the lower federal courts did not have the right to hear appeals from state court decisions about federal law. By using its Article III powers, Congress could radically reshape constitutional law.

One might at first think that Quirk has made a mistake. Is he not blowing out of proportion a passage that really deals only with setting up rules of procedure for the federal courts? History buffs will be aware of the famous case of ex parte McCardle (1868), in which the Reconstruction Congress withdrew the right of the Court to hear a case, while that very case was pending before the Court; but is not this use of Article III an aberration? Surely, like the famous Tenure of Office Act, this was an example of how extreme that Congress was, rather than a guide to sound constitutional practice.

To those inclined to think so, the ruling of the Court in McCardle will come as a surprise. It fully recognized the right of Congress to withdraw its jurisdiction. The Court said,

We are not at liberty to inquire into the motives of the legislature. We can only examine its powers under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words… It is quite clear, therefore, that this court cannot proceed to pass judgment in this case, for it no longer has jurisdiction of the appeal; and the judicial duty is not less fully performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer. (pp. 289–90)

It is Quirk’s great merit to show that Congress’s power to limit the federal courts is a recurring theme in American history. Quirk is a Jeffersonian; and he points out that Jefferson and his followers feared the potential for abuse in federal judicial power and acted to curb it. The Federalists had secured the appointment of a number of Federalist judges in the Judiciary Act of 1801.

The Republicans replied to the Judiciary Act of 1801 by repealing it in the Judiciary Act of 1802. The 1802 act repealed “federal question” jurisdiction. It stripped the new judges of their offices. (p. 178)

Congressional power under Article III is far from a theoretical question. Congress has in fact acted to limit the federal courts in several notable instances. By the early 1930s, a majority of Congress had come to think that the courts often acted in an improperly antilabor way by issuing injunctions that forbade unions to strike. Employers who claimed that unions were a threat to their property did not have to go through the long and involved process of a civil suit. Once an injunction against a union had been issued, the court could instead hold the union in contempt and inflict civil and criminal penalties. Accordingly, in the Norris-LaGuardia Act (continually misspelled in the book), Congress, exercising its Article III authority, took away the power of federal courts to issue injunctions in labor cases. An interesting question, not discussed in the book, is why Franklin Roosevelt did not resort to this tactic in his disputes with the Court.

Again, in the 1950s, there was a Congressional outcry against several Supreme Court decisions that were deemed unduly protective of the civil liberties of members of the Communist Party. Senator William Jenner introduced a bill to withdraw the appellate jurisdiction of the Court in such cases; and although the measure failed to pass, its constitutionality was not seriously challenged. Opponents, such as Senator Jacob Javits of New York, claimed rather that the bill was unwise. One eminent law professor, Arthur J. Freund, who opposed the Jenner Bill, responded in this way when asked whether it was constitutional to limit the Supreme Court’s jurisdiction: “You can’t challenge the constitutionality of a constitutional provision” (p. 234).

The famous Engel v. Vitale (1962) decision, which held recitation by a public school teacher of a prayer in class to be unconstitutional, and the failure of a proposed constitutional amendment to overturn it to gain sufficient votes, aroused Senator Jesse Helms in 1979 to propose a “stripper” bill, as this sort of legislation is called, but it also failed of passage. In a number of instances, though, Congress has in fact stripped the federal courts of jurisdiction, and several such laws remain on the books today.

In recent years, a number of scholars have maintained that the Article III power of Congress is limited and that it cannot, e.g., bring it about that a constitutionally protected right is withdrawn from judicial scrutiny. Supporters of this position can appeal to the weighty authority of Justice Story, who thought that Congress was required to extend the full “judicial power” mentioned in the Constitution to the federal courts. Quirk successfully shows, though, that there is an extremely strong case that Congress does have the power to strip the federal courts of jurisdiction.

If Congress has the power, should it use it? Would not doing so remove a necessary check on Congress? Quirk does not think so. In his view, again a Jeffersonian one, Congress is the dominant branch of the American government; unlike the courts, it is directly subject to the will of the people. If one objects that majority rule can deprive a minority of its rights, Quirk responds that rights are safer with the people than with unelected courts. Murray Rothbard, by the way, thought much the same, especially in his later years.

To the argument that stripper bills would introduce chaos into the judicial system, since without appeal to a highest court, there would be no guarantee of uniform rulings in different jurisdictions, Quirk again has an answer. Is not experimentation desirable? Why should we not have varying rules, suited to local conditions?

If Congress has such power over the Supreme Court, why is it reluctant to use it when the Court abuses the Constitution? Quirk locates the answer in what he terms The Happy Convention. The principal aim of most members of Congress is to secure reelection to office. In order to do this, Congress avoids controversial moral and cultural issues whenever possible. Far better to have the Supreme Court, an unelected body that voters cannot unseat, take the blame for unpopular decisions.

Similarly, the Constitution clearly gives Congress the sole power to declare war. But, wishing to avoid blame should a war go badly, Congress has abdicated its power to the president. It is better, Congress thinks, for him to take the blame for Vietnam or Iraq. By its own lights, the Congressional policy has been remarkably successful. Most incumbents are reelected. The cost, though, is a severe one. Our actual Constitution, one of congressional preeminence, has been replaced by the Happy Convention, in which the president and Supreme Court have supplanted Congress. No Jeffersonian can accept this.

David Gordon covers new books in economics, politics, philosophy, and law for The Mises Review, the quarterly review of literature in the social sciences, published since 1995 by the Mises Institute. He is author of The Essential Rothbard, available in the Mises Store.

This review originally appeared in The Mises Review, Fall 2008.

There are few topics that can divide people who are normally ideological bedfellows like the legal doctrine of the “incorporation” of the Bill of Rights against the states and the Second Amendment. This subject is rearing its head again with the upcoming appointment of a new Supreme Court justice as well as federal courts’ recent conflicting opinions in regards to the Second Amendment.

The Wall Street Journal reports that on June 2nd, “A federal appeals court in Chicago ruled … that the Second Amendment doesn’t bar state or local governments from regulating guns, adopting the same position that Judge Sonia Sotomayor, President Barack Obama’s nominee to the Supreme Court, did when faced with the same question earlier this year.”

This ruling contrasts with a recent ruling by “the U.S. Ninth Circuit Court of Appeals in San Francisco … that the Second Amendment is incorporated against the states and local governments” — in other words, states and local governments are bound by the Second Amendment. Which court is correct?

To understand the debate in this topic, it helps to briefly review constitutional history. When the Constitution was first proposed, opponents of the new document criticized it for lacking a bill of enumerated rights, which were common in virtually every state constitution of the time. In response to these complaints, proponents of the new Constitution agreed to add a series of amendments in the first Congress that would codify restrictions on the federal government to infringe certain fundamental rights. The resulting first 10 Amendments, collectively referred to as the “Bill of Rights,” were ratified on December 15, 1791.

It is important to note two little-known historical facts regarding the proposal and ratification of the Bill of Rights. Alexander Hamilton, himself a prominent advocate of a liberal reading of the necessary and proper clause as well as a loose construction of the Constitution, argued that a Bill of Rights would be dangerous because it would imply that without such an enumeration of rights, the new government might actually have the power to infringe on these rights and might even now open the door for the government to regulate in these areas. In Federalist # 84, Hamilton wrote:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? … I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.

Hamilton basically was saying that the national government lacked the power to do any of the things that the proposed Bill of Rights were prohibiting, and codifying these restrictions might lead some to argue that the national government could actually regulate in those areas, which he felt was completely unconstitutional.

In addition, James Madison, widely regarded as “The Father of the Constitution,” wanted to have the Bill of Rights restrictions to be held against the states but was rebuffed in this effort because of widely held reservations to further empower the new government over the states. The first Congress refused to even submit such a proposal to the states for ratification because it was so unpopular. As a matter of fact, numerous states had gun-control laws on the books at the time, as well as state-chartered religions. It was not that the citizens were necessarily opposed to state involvement in these matters but rather did not want any federal intrusion.

These two historical facts illustrate that, at the time of the ratification of the Bill of Rights, it was recognized by the Framers and Ratifiers that the national government had no authority to enforce the Bill of Rights against the states, and whatever authority it did have was clearly delineated in the text of the Constitution itself.

Therefore, the Bill of Rights did not give the national government any new powers but simply reiterated important restrictions upon it and not the states. This understanding is consistent with the position that not only does the Second Amendment protect an individual “right to bear arms” against federal action but also that the national government lack any power whatsoever to regulate within this area. Additionally, the states are free to regulate (or not regulate) in that area based on their own state constitutions.

The fact that the Bill of Rights did not apply against the states was not modified until after the ratification of the 14th Amendment and the judicial creation of the incorporation doctrine. The incorporation doctrine refers to the court selectively “incorporating” certain amendments in the Bill of Rights against state governments via a liberal reading of the 14th Amendment — completely contrary to the original understanding at the time of its ratification as explained by widely respected legal scholar Raoul Berger in Government by Judiciary: The Transformation of the Fourteenth Amendment.

As the late Congressman Larry McDonald explained, the rationale behind the incorporation doctrine “runs completely contrary to thoughts and purposes of the original framers…. Their intent was to limit the rights and powers of the federal government, not to help expand them.”

The courts liberal interpretation allowed the federal courts to widen their jurisdiction and judicially review numerous state laws. Some libertarians welcome this development in constitutional history as a great opportunity to spread freedom because it gives advocates of individual liberty “two bites at the freedom apple — one under his state constitution and one under the U.S. Constitution.” Sadly, the constitutional record of incorporation is not something many advocates of individual liberty can be proud of.

Constitutional historian Kevin R.C. Gutzman details the sordid history of the incorporation doctrine:

This is what the Incorporation Doctrine has given us: in place of reservation of these areas of law to state governments for regulation via legislative elections, we get seizure of control over them by unelected, unaccountable, politically connected lawyers (that is, federal judges) who purport to substitute “reason” for the (one infers) “unreasonable” regulations crafted by elected officials…. It was under the cover of the Incorporation Doctrine that federal courts recently invented a right of child rapists not to face the ultimate penalty for their crimes.  It was under the cover of the Incorporation Doctrine, indeed, that a Supreme Court majority for several years banned capital punishment altogether. It was under the cover of the Incorporation Doctrine that the Supreme Court eliminated state prohibitions of various types of pornography. The Incorporation Doctrine also underlies the Court-created ban on prayer, even on moments of silence, in public schools. The Incorporation Doctrine has allowed federal courts to invent rights to burn flags, ban invocations at high school graduations, and establish essentially a national code of “acceptable” punishments.

Furthermore, it was with the help of the incorporation doctrine that the “politically connected lawyers” on the court were able to invent “penumbras” giving rise to the infamous Roe v. Wade decision, and there were even discussions at the height of judicial activism to engrain a right to a minimum wage within constitutional law. Libertarians should be careful what they wish for because the “interpreters” on the court do not always see eye-to-eye with their vision of liberty.

Ironically, libertarian proponents of incorporation who usually are almost universally opposed to state power, let alone massively centralizing power in a super state, are in effect advocating the use of a larger, more powerful central government (via its court system) to force smaller governments to “be more free” without recognizing the fact that freedom means different things to different people. Such a contradictory line of thought is in direct conflict with the proud Jeffersonian decentralist tradition of those who founded our constitutional republic.

This leads us back to gun-rights activists who are currently expending numerous resources trying to get federal judges to incorporate the bill of rights against the states. Ironically, years of money spent trying to get federal judges to advance the cause of gun rights resulted in the disappointing Supreme Court decision in District of Columbia v. Heller where the “conservatives” on the court acknowledged that the Second Amendment protects an individual right “to bear arms” but that right is not “unlimited” and there is still room for reasonable restrictions on gun control.

As renowned constitutional attorney Edwin Vieira, Jr. wrote last fall in The New American, “Could Heller allow gun regulation to the point that the regulation could become a prohibition for all practical purposes? What effect will it have, if any, on existing or future gun laws in other jurisdictions throughout the country?”

The Heller decision was disheartening to gun rights advocates who believed that vast amounts of money spent on endless legal challenges would engrain an unlimited right to gun ownership in our constitutional law. Related efforts to incorporate the limited protections of Heller against the state will face similar frustration.

Those who put their faith in “politically connected lawyers” to uphold their rights and advance the cause of freedom will continue to be disappointed. Perhaps these activists will now realize that federal judges are not reliable friends of individual liberty and instead will focus their energy on a much more realistic goal of making Congress constitutional.

Patrick Krey works in finance and has an M.B.A., J.D. (law degree), an L.L.M. (masters of law) from the University of Buffalo, and is an Attorney admitted to practice in New York State. He is also a freelance writer – his work has been published online at JBS.org, PrisonPlanet.com, Antiwar.com and in The New American bi-weekly print magazine. He is also the host of the online radio show The Constitutional Coalition.

Supreme Court nominee Sonia Sotomayor’s comment at Duke Law School that the U.S. Court of Appeals “makes policy” has received a lot of attention, and deservedly so. Understanding what prompted her remark is key to understanding what has happened to our Constitution in the modern era.

Before the Twentieth Century, judges followed certain age-old traditions of judging. When considering a case controlled by a statute, judges tried to apply the precise words of the statute to the case before them. When the wording was unclear, judges either applied the pre-existing common law or sought to apply the intent of the lawmakers who passed the statute.

In rare cases where, due to drafting error or unforeseen circumstances, the words were flagrantly inconsistent with what the lawmakers intended, courts tried to follow the intent rather than the words.

When there was no controlling statute, judges resorted to common law. They first sought to deduce the solution to the present case from former cases. If that was not possible (as when the precedents were hopelessly contradictory or none was relevant), judges sought to apply the underlying principles of the Anglo-American common law.

This sometimes was referred to a “discovering the law.” Among those basic principles were that consensual agreements were to be enforced and non-consensual loss on innocent parties was to be avoided.

Early in the Twentieth Century, a group of leading lawyers rejected the traditional way of doing things. Figures such as Supreme Court Justice Oliver Wendell Holmes, Jr. and Judge Jerome Frank argued that, whatever judges pretended they were doing, they really were making law, so they might as well use their law-making opportunities to shape good social policy.

This group called themselves Legal Realists, and they denigrated traditional jurists by labeling them “legal formalists.”

In the intervening years, Legal Realism and its variants and offshoots have become Legal Orthodoxy – at least in the nation’s law schools. Legal realism also has become widespread on the bench (although my 1992 study of real estate cases found that it was not yet dominant in that area of the law).

Judge Sotomayor is clearly a legal realist, as shown by her Duke Law School comment and, elsewhere, by her approving references to Jerome Frank. Indeed, given the prevalence of Legal Realism among the liberal jurisprudential elite, it would be surprising if she were not of this persuasion.

In a constitutional case, a judge should apply the Founders’ policies, not his or her own. Obviously, though, a philosophy that encourages a judge to make policy in other cases may encourage the judge to make policy in constitutional cases, also.

Several members of the current Supreme Court are clearly of the Realist persuasion – see, for example, Justice Stephen Breyer’s dissent in the recent D.C. gun case. Justice Souter also is a Realist who dismisses arguments he doesn’t like by branding them as “categorical formalism.”

Souter’s replacement by Judge Sotomayor would not be a big change on that score. But it would be a missed opportunity to render our government more faithful to its constitutional roots.

Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history.  He is currently seeking a publisher for his latest book, The Original Constitution.

If one wants a nearly thorough education about the U.S. Constitution, it would be wise to examine the following: the notes from the Constitutional Convention, the public editorials written both for and against the proposed Constitution that followed, the state ratification debates, and the actual document itself.

These all give one an almost comprehensive knowledge of the U.S. Constitution, although, as any law student will explain, modern constitutional law consists solely of Supreme Court cases mostly from the last 50-100 years. So why should someone bother wasting time on the above-mentioned items when they’re no longer relevant to our federal system of governance?

Constitutional Interpretation

Of all the confusion and numerous misconceptions surrounding the Constitution, none is more prevalent than the notion that the Supreme Court is the ultimate arbiter of the Constitution. Referring to the Supreme Court as the ultimate arbiter means that they get the final say on what the Constitution means and, in addition, can reinterpret it on a whim. This couldn’t be further from what the original Framers and ratifiers of the Constitution had in mind. One of the first cases read by students of constitutional law is Marbury v. Madison. Without delving into all the details surrounding Marbury, students are taught that the court opinion by Chief Justice John Marshall establishes the Supreme Court as the final arbiter of the Constitution. This role, as it is commonly taught, means the Supreme Court can say what is and what is not constitutional, even going so far as to create new legal doctrines independent of the founding period.

Constitutional scholar William J. Watkins disagrees that this is what Marbury actually said: “Today, Marbury is cited for the proposition that the Supreme Court is the final arbiter of the Constitution. This interpretation divorces Marbury from its historical roots and grossly overstates the holding of that case.” Watkins distinguishes between true judicial review as envisioned by the Founders and what we now have. He refers to the latter as judicial supremacy; some other fierce critics have referred to it as judicial dictatorship. He makes a strong argument that judicial supremacy harkens back to the pre-Revolutionary status of the unchecked British Parliament, which the Founders rebelled against: “Unlike judicial review, judicial supremacy is … a regression to an older theory of sovereignty that existed prior to the American Revolution. Judicial supremacy places the Supreme Court in the position of Parliament. Having the final word in constitutional interpretation, the court can make or unmake any law as it sees fit. Other than a very difficult amendment process, the people can do nothing to control it. Judicial supremacy actually poses a greater danger to the people than a system of parliamentary sovereignty. At least members of the House of Commons are subject to popular elections. The Supreme Court is not subject to this check nor are most of the courts of last resort on the state level.”

Watkins’ assertion of true judicial review squares with an originalist approach to the Constitution. In The Federalist, No. 78, Alexander Hamilton vowed to the ratifiers that the judiciary is “is beyond comparison the weakest of the three departments of power.” What is the proper role of the judiciary? Hamilton explained that its ability was limited to only preventing the Congress from overstepping their limits by legislating in an area outside of their constitutional authorization.

This understanding of judicial review is buttressed by the prominent law professor of the late 19th century, James Bradley Thayer. “We are much too apt to think of the judicial power of disregarding the acts of the other departments as our only protection against oppression and ruin. But it is remarkable how small a part this played in any of the debates. The chief protections were a wide suffrage, short terms of office, a double legislative chamber, and the so-called executive veto. There was, in general, the greatest unwillingness to give the judiciary any share in the law-making power.”

Even Chief Justice John Marshall himself, the man credited with establishing expansive judicial review, understood the judiciary’s limitations on actually creating new legal doctrines. Present Supreme Court Justice Antonin Scalia recalls that Marshall expressed that the “principles of the Constitution are deemed fundamental and permanent and, except for formal amendments, unchangeable.”

Marshall personally declared, “The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law.”

Following Unconstitutional Precedent

So how did the Supreme Court broaden its jurisdiction and, in effect, re-write the Constitution? The answer to that question lies in the concept of stare decisis (Latin for “to stand by the things decided”), which is the legal doctrine of precedent. Black’s Law Dictionary defines it as when it is “necessary for a court to follow earlier judicial decisions when the same points arise again in litigation.” Once the concept of judicial review was established, it led to a series of cases where the court began to rely on earlier cases as sources for decisions instead of the Constitution itself. In his book We Hold These Truths, the late Congressman (and former chairman of the John Birch Society) Larry McDonald summed up the history of how the Supreme Court moved further and further away from the Constitution: “From the first cases they heard, Justices of the Supreme Court have said too much in their majority decisions and dissenting opinions. They seem to pride themselves on their literary style. Instead of stating their decision in the case at hand and citing authorities used, they tend to philosophize and explain, and thus fill the record with language, which later justices expound and expand.”

McDonald distinguished between earlier court cases where the justices, although verbose, still referred to original sources of the founding period, and later cases where justices started referring only to decisions of prior courts. Some of these cases involved justices re-defining terms or words in the Constitution beyond their original meanings and lessening the restrictions on government power. “By making careless definitions and by implying meanings instead of stating them expressly, previous courts had planted seeds for subsequent court perversions of the Constitution.” In addition, justices began using brand new sources to justify their holdings. “Instead [of the Constitution], they cited and expatiated on outside commentaries about social conditions, economics and politics.”

Law Professor Richard A. Epstein, author of How Progressives Rewrote the Constitution, had some harsh criticism for the path the court used to break free from the chains of the Constitution. “They saw in constitutional interpretation the opportunity to rewrite a Constitution that showed at every turn the influence of John Locke and James Madison into a different Constitution, which reflected the wisdom of the leading intellectual reformers of their own time.”

Originalism

Defining the Constitution based on the original understanding, meaning, and intent is referred to as originalism, and supporters of this are referred to as originalists, or as they are more popularly known, constitutionalists. Constitutionalism is extremely important because it provides insight into the Constitution’s true purpose regardless of an individual’s personal preference. The Constitution means what it meant at the time of ratification and the same holds true with regard to the amendments at the time of their adoption. This objective method removes the subjective ability of activists to insert their political beliefs in place of the Constitution.

The originalist method of constitutional interpretation was commonplace in America for much of the early history of our Republic. Supreme Court Justice Joseph Story described this method when he said, “The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and intentions of the parties.” Thomas Jefferson, writing to his friend James Madison, clarified the simple process: “Construe the Constitution according to the plain and ordinary meaning of its language, to the common intendment of the time and those who framed it.”

Madison, widely regarded as the “Father of the Constitution,” echoed these sentiments: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”

This method of originalist analysis of the Constitution is the same as that used by lawyers in the founding generation. University of Montana Law Professor Robert G. Natelson elucidates the steps in this analysis. The constitutional researcher “seeks and applies the ratifiers’ subjective understanding of the constitutional language, to the extent that subjective understanding is recoverable. If it is not recoverable, then one applies the original public meaning of the words. Note that the subjective understanding sought is that of the ratifiers rather than the drafters, for it was the ratifiers who transformed the Constitution from a proposal into basic law.”

Non-originalism Is Judicial Activism

On the other side of the debate, there are numerous proponents of “a living, breathing” Constitution who assert that the document must “change” with the times. This approach allows the researcher or interpreter, perhaps more accurately referred to as a “re-writer,” to go literally beyond the Constitution to decide cases and create new law. Prominent legal scholar John Hart Ely advocated strongly for this approach. He felt “that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document.”

The technique of judges drastically re-interpreting the Constitution without regard to its founding period has come to be known as “judicial activism.” This approach is widely taught in law schools and promoted by the establishment elite as an enlightened improvement from the old “horse and buggy” approach of constitutionalists.

Conservative legal scholar and one-time Supreme Court nominee Robert Bork has his own theory on why this approach is popular among the establishment elite: “An elite moral or political view may never be able to win an election or command the votes of a majority of a legislature, but it may nonetheless influence judges and gain the force of law in that way. That is the reason judicial activism is extremely popular with certain elites and why they encourage judges to think it the highest aspect of their calling… The judge is free to reflect the ‘better’ opinion [that is, the judge’s opinion] because he need not stand for reelection and because he can deflect the majority’s anger by claiming merely to have been enforcing the Constitution. Constitutional jurisprudence is mysterious terrain for most people, who have more pressing things to think about. And a very handy fact that is for revisionists.”

In addition to Bork’s reasoning, judicial activism is also a great way for the federal government to expand its power in spite of constitutional limitations without having to follow the formal amendment process as described in Article V. The political elites in charge of our government can ignore Article V and simply have political appointees rewrite the Constitution by judicial fiat while telling the electorate the government’s actions are constitutional.

A well-known believer of this approach is President Barack Obama. In a 2001 interview with a local radio station, Obama faulted the Supreme Court headed by Earl Warren, one of the most radically liberal Chief Justices ever, for not going far enough in reinterpreting the U.S. Constitution. Obama complained the activist Warren Court “didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it’s been interpreted, and the Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the federal government can’t do to you, but doesn’t say what the federal government or state government must do on your behalf.” Based on the president’s statements, it would appear that Obama’s ideal Supreme Court justice would be one willing to look past the Constitution in order to create the law the president desires.

Such a position conflicts with the entire reason for having a written Constitution. If the document can simply be modified at will, then why even record it in the first place? Constitutional scholar Raoul Berger stirred quite a controversy when he challenged the liberal status quo at the height of judicial activism with his academic research into the Constitution: “The issue is who may revise the Constitution — the people by amendment or the judges, who are unelected, unaccountable and virtually irremovable… Against this, the activists argue that over the years words change their meanings. But that does not authorize us to saddle the Founders with our meanings… Their defense of the Justices’ substitution of their own meaning for that of the Founders displaces the choices made by the people in the conventions that ratified the Constitution, and it violates the basic principle of government by consent of the governed.”

Indeed, the entire notion of an unwritten Constitution, which could easily change based on the desires of the political elite, was exactly what the framers had sought to get away from. They believed that part of the reason the British constitution was a failure was because it was unwritten. For this and other reasons, they desperately wanted to permanently fix the terms by which the people were to be governed. If the government can just reinterpret the fundamental law of the land as they see fit, then what limits are there on that government? The result is a completely unrestrained government that is dangerous to the liberty of the citizenry. The Founders had learned this painful lesson all too well under the tyranny of King George III.

The Future of Constitutionalism

The Constitution is the rule book by which our national government should play. Once that very same government starts making the rules up as they go along, we run the risk of descending into the same type of tyranny that our patriotic Revolutionary Founding Fathers rebelled against. It is human nature to be tempted to “read” one’s personal feelings into the Constitution. Doing this allows someone to declare anything they like as constitutional and anything they dislike as unconstitutional. That approach of substituting one’s personal beliefs for the supreme law of the land is in direct conflict with our nation’s founding. It’s bad enough when individuals do it in the course of their personal lives, but absolutely unforgivable when our public officials do it in their representative capacity.

So what should be done? Can we formulate an effective strategy to restore constitutional governance? Boston University Law Professor Gary S. Lawson definitely thinks so. His feelings are that it will take time and a lot of work if enough Americans work together, but that it’s definitely obtainable:

Any strategy must be long-term, and it requires three critical elements… The first element is to de-legitimize precedent. As long as precedent is considered a conversation-stopper, all is lost, because there are strong precedents for unraveling each and every feature of the Constitution that stands in the way of the administrative state… The second element is to continue developing the case for the correct meaning of the Constitution… The third element is the most critical of all.… There just are not a great many people who care very much about the Constitution. Politicians, in turn, will not care about the Constitution until and unless enough people care about it to make a difference. Right now, the Constitution has no constituency. It needs one large enough to compete in the political marketplace with other interest groups.

If our country is to ever return to its limited-government roots, it will be because the people demand that public officials strictly adhere to their oath to abide by the Constitution. Concerned citizens need not come up with new ways to accomplish this, though. Our Founders left us a very clear and lucid way to restrain the central government: the U.S. Constitution. Lawson’s approach wisely cuts across the political spectrum to join disparate groups with a shared aim. Traditional conservatives, libertarians, and anti-globalists of all types can unite in the common goal of returning the federal government to its original constitutional role.

Patrick Krey works in finance and has an M.B.A., J.D. (law degree), an L.L.M. (masters of law) from the University of Buffalo, and is an Attorney admitted to practice in New York State. He is also a freelance writer – his work has been published online at JBS.org, PrisonPlanet.com, Antiwar.com and in The New American bi-weekly print magazine. He is also the host of the online radio show The Constitutional Coalition.