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

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given

The interest of the current administration in creating a federal national health care program, has provoked discussion of whether the federal government has sufficient power to do so. Often, the discussion is phrased as whether “the government” has sufficient power. Others have asked if the federal government has the power to compel individuals to purchase health insurance.

My article (“Limits to Regulation due to the Interaction of the Patent and Commerce Clause”, in CATO Journal, Vol. 20, No. 3, Winter 2001, pages 401 – 423), gives an insight into both questions, by answering this one: why does the so-called “patent clause” of the federal constitution, not use the word “patent”?

If the word “patent” meant what we currently mean by that term, then the clause could have simply stated the relevant power by saying the federal government can issue patents. Instead, the “patent clause” carefully states that the Congress has the power to issue exclusive rights for a limited time to authors or inventors. It does not use the word “patent” at all.

As reviewed in that article, this use of words tells us a great deal about the purposes and structure of the federal constitution. Citing principal legal scholars of the day, the article shows that at the time the federal constitution was written, the word “patent” actually had a much broader meaning. It referred to any government grant of an economic right, called in the article a “general patent power”. Of course if the federal government can grant such rights without limit, we would not need to ask if the federal government has such power over health care.

Yet we ask. On the other hand, when the US states have created health care programs, or otherwise regulated matters like health insurance, the existence of that power in a state has been little questioned. And note: this common understanding is consistent with the 10th Amendment to the federal constitution, that powers not enumerated to the federal Congress are reserved to the states respectively or to the people.

So looking carefully at the choice of words in the “patent clause” tells us a great deal on what the federal government cannot do. The only general patent power granted by the federal constitution to the federal Congress is the specifically described power to create what we today call patents. All other aspects of the general patent power were not given to the federal government, so if exercised at all could be done only by states.

For example, the states can, and normally do, protect the general welfare by requiring holders of driver licenses (issue of which is a proper exercise of a general patent power by a state government) to also buy accident insurance. The federal government however does not regulate drivers or issue of driver licenses within the jurisdiction of any state.

Given this careful allocation of general patent powers, principally to the states, what then is the role if any of the federal government in matters of commerce? Since the word “patent” when the federal constitution was written refers to allocation of economic rights, and those powers generally were reserved to states (or the people), then the commerce language of the federal constitution cannot be interpreted as a general allocation of such power to the federal government. Had that been the intent, the simple grant to Congress of a power to issue patents, without any other words, would have been sufficient.

Now, the federal commerce clause (Article I, Section 8 of the federal constitution) says that Congress has the power: “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” But we just saw that Congress has no power to regulate commerce among the several States by the use of an exclusive federal grant of markets, or indeed to allocate those markets, because to do so in that form would be to exercise a power (the “general patent power”) not granted. Since the Congress has no power to allocate economic rights (except what today we call patents), therefore, the commerce language must have some other meaning.

But that meaning also is not a mystery. A review of other powers of the federal government in relation to states, shows that the role of the federal government is to prevent overly restrictive use of powers by the states. Thus, in commerce among the several states, (“interstate commerce”) the role of the federal government was not to allocate rights, but to prevent the states from unduly closing commerce when they exercise their own powers to allocate rights.

This fact is consistent with the historical problem of the day, when states had often done exactly that, to the detriment of the general welfare of all. The “general welfare” words of the federal constitution in no sense changes this separation of powers. The federal government protects the general welfare by preventing excesses of exercise of power by the states.

The details of those arguments are laid out in the referenced article. The application to the health care debate seems straight forward: the states can require health insurance or not, as each may choose; the states could create state supported systems of health care for their citizens, if they choose. The federal government can do neither.

What the federal government might do is this: if in the exercise of their rights to regulate health insurance or provide it, the states create rules that obstruct commerce in health care, then the Congress can prevent such obstruction. It is not simply ironic that the one thing the Congress might be able to constitutionally do with regard to health care, to remove obstruction to competitive access, is not among those included in the proposed legislation.

Paul A. Ballonoff operates Ballonoff Network in Alexandria, VA.

Copyright © 2009, Paul A. Ballonoff

It was originally published in 2003 in the Nevada Law Journal.

Introduction:

“The most numerous objects of legislation belong to the States. Those of the National Legislature [are] but few.”
–Rufus King, at the Federal Constitutional Convention

In constitutional form, the federal government is one of enumerated powers, and all powers not enumerated are reserved exclusively to the states and the people. The federal government’s enumerated powers have been construed so broadly, however, that the modern student may be pardoned for asking if anything really has been reserved. Even forty years ago, Professor Lindsey Cowen could say “As things now stand, there may not be any powers which are ‘not delegated to the United States by the Constitution,’” and, of course, the federal government has grown a good deal since then. Over the past century, the power to regulate commerce has come to include the power to regulate agriculture, the power to tax has become the power to control inheritances, and the power to spend for the “general Welfare” has enabled the federal government to create programs to inculcate and educate, as well as for many other purposes.

The proffered legal basis for most of this expansion of federal power is the wording of the original Constitution. Subsequent amendment justifies relatively little of it. This fact, in turn, raises the oft-argued question of whether the powers granted the federal government in the original Constitution, especially as modified by the Ninth and Tenth Amendments, really encompass such subjects as agriculture, education, health care, and the like.

The drafters of the Constitution chose to enumerate the powers of the federal government but not, with a few procedural exceptions, the exclusive powers of states. However, that decision should not be understood as implying that exclusive state powers were narrow, but rather that they were vast. As the drafters explained, they had decided not to enumerate the states’ reserved powers for the same reasons they had decided not to include a bill of rights: first, the reserved powers were too extensive to enumerate; second, a discrete list would encourage the pretense that the federal government could act everywhere else.

On the other hand, if we did have an enumeration of exclusive reserved state powers, perhaps it would enable us to understand more precisely the scope of the granted powers. Such an enumeration also could shed light on basic principles of American federalism. For example, an enumeration might help us determine whether it is constitutionally true, as is sometimes claimed, that growing national economic interdependence justifies more expansive interpretation of federal powers. Put another way, an enumeration could help us determine whether the presence of externalities – spill-over effects – from one state to another creates a constitutionally defensible reason for further central control.

In point of fact, leading federalists left in the historical record some rather specific enumerations of the reserved powers of states. They offered these lists as part of the basis of the political bargain by which the Constitution was ratified. As such, these lists help us divine the actual meaning of such phrases as “general Welfare” and “Commerce . . . among the several States.”

Surprisingly, there has been almost no attention in the legal literature to the federalists’ enumeration of state powers for the benefit of the ratifying public. In this Article, I distill the essence of these enumerations for the modern reader. After doing so, I conclude that the listed items strongly suggest that a guiding principle of American federalism is a Coasean one: externalities and/or interdependence, without more, generally do not serve as constitutional justifications for further centralization.

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Professor Natelson teaches Constitutional Law, Legal History, Advanced Constitutional Law, Remedies, and a seminar on the First Amendment. He is a recognized national expert on the framing and adoption of the United States Constitution, and on several occasions he has been the first to uncover key background facts about the Constitution’s meaning. He has written for some of the nation’s most prestigious academic journals and publishers. Moreover, his work is frequently cited in top journals, such as Harvard Law Review, Yale Law Journal, Michigan Law Review, and Georgetown Law Journal. He also edits the web page, The Scholarship of the Original Understanding of the Constitution, and collected and edited the material that forms the Documentary History of the Ratification of the Montana Constitution.

Copyright, Robert Natelson, Nevada Law Journal

Rob Natelson, recognized national expert on the framing and adoption of the United States Constitution, and Professor of Constitutional Law, Legal History, and Advanced Constitutional Law at the University of Montana School of Law talks about how the Supreme Court allowed the Federal Government in the late 1930s to drastically change the way the US Constitution is interpreted, how the Court initially tried to hold a line against FDRs expansion of power but changed position even before the infamous court-packing scheme, how the Commerce and Taxing powers were almost turned upside down,  the Necessary and Proper clause and incidental powers, the false claim that the Supreme Court is conservative, how bad precedent leads to more bad court rulings, state elections as critical for Constitutional activists, and more.

Editor’s Note: Professor Natelson notes one error in the podcast:  He should have given Justice Breyer’s first name as “Stephen.”

Mentioned in this Show:

United States v Darby Lumber

Wickard v Filburn

The Heritage Guide to the Constitution

Rob’s Page at the University of Montana

Scholarship of the Original Understanding of the Constitution

More from Rob Natelson:

Is ObamaCare Constitutional?

Claiming Almost Everything is “Commerce”

The New King George

It’s the People’s Right!

Podcast: Understanding Federalism

Since the days of Ronald Reagan and Edmund Meese, the Republican Party’s position has been that judges should be bound by the people’s understanding of a particular constitutional provision at the time they ratified it.  This notion goes under the name “originalism.”

Recent events, including the Republican response to President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court, reveal that the party is a highly unreliable vehicle for this principle.

So, for example, the Republican Party decried the Supreme Court’s decision in Kelo v. City of New London (2005) that the Fifth Amendment did not bar New London, Connecticut, from seizing private property for a public purpose. According to the stock criticism, the Fifth Amendment left open the possibility of government seizure of private property only for public use, not for public purpose.

What this criticism omits, however, is that the Fifth Amendment, like the rest of the Bill of Rights, is a limitation solely on the Federal Government.  Since the government of New London is not the Federal Government, an originalist reading would hold the Fifth Amendment inapplicable.

Just try explaining this to a Republican audience. Not only do Republicans argue for application of the Fifth Amendment’s Takings Clause against state governments. They also vociferously insist that the Second Amendment is enforceable against the states.

In fact, Republican lawyers have recently found success in persuading some federal judges for the first time to treat the Second Amendment as enforceable against the states. It once was only the left-most Supreme Court advocates (for example, those who argued against prayer in public schools) who argued for the Incorporation Doctrine. Now, however, this is a “conservative” position and “conservative” public-interest lawyers take this position before the Supreme Court.

The Bill of Rights as an obstacle to federal infringement on state authority was only one element of the underlying principle of the U.S. Constitution. This is “federalism,” the notion that the states (meaning the sovereign people of each state) had delegated only particular powers to the Federal Government. In the Reagan era, with Edmund Meese as attorney general and Charles Cooper as assistant attorney general, this principle received an emphasis it had not since 1937.

Now, however, the Republicans take an energetic position on the wrong side of the question. So, for example, Sen. John Thune of South Dakota recently offered his Concealed Carry Amendment to a defense authorization bill.

Under this amendment, if someone had a right to carry a concealed weapon in his home state, he would be given federal authorization to carry it in states he might visit. What constitutional provision empowers Congress to force this policy upon the states? Don’t be silly.

Of course, the question of gun rights is not the only currently live one that excites core Republican voters. Therefore, it also is not the only one that prompts Republican office-holders to ignore the principle of federalism.

In 2006, the editors of National Review endorsed the notion of an amendment to the Constitution defining marriage. Why should the Federal Government impose a single definition on all the states, who have always had complete control over such questions? Because federal judges cannot be restrained, those editors reasoned, from legislating their own definition.  In other words, if you don’t trust one fox, put the whole fox family in charge of the chicken coop.

Alas, to argue for augmenting federal authority seems to be what the editors of National Review reflexively do. Who cares about the Tenth Amendment’s reservation of all undelegated powers to the states?

No wonder Democrats and pro-choicers generally say that the Republicans are hypocritical in invoking the principle of federalism against Roe v. Wade. What is a “principle,” they rightly wonder, that is only invoked when it cuts in the desired direction?

That is a good point.

It gains additional force from the fact that Republicans do not even invoke it consistently across all abortion disputes. In Gonzales v. Carhart (2007), the Supreme Court upheld a congressional ban on partial-birth abortion. In a concurring opinion in that case, Justices Antonin Scalia and Clarence Thomas noted that the Commerce Clause, as properly understood, did not give Congress power to enact such a ban.

However, they said, so long as the Court’s unfounded Commerce Clause precedents stood, Scalia and Thomas would join in extending them to this new area.

Principled originalism in action!

Republicans also generally join in opposing pro-black discrimination in government hiring, firing, promotions, contracting, and other such decisions (and cheered the recent Ricci decision). They do this on the ground that the Equal Protection Clause of the Fourteenth Amendment requires color-blindness on the part of government.

This is of course a morally appealing argument. But the issue is not whether the Republican policy positions are appealing; that is a legislative question. The question is whether the Republicans’ constitutional position has merit.

Here, as in the other areas described above, it does not. The Equal Protection Clause was not intended as a wide-ranging mandate for government equality, but to have much narrower application. The Supreme Court long recognized this fact. Conservatives do their reputation for intellectual honesty no favors by arguing for extension of unfounded precedents.

In short, then, Republicans generally do not stand for principled adherence to originalism, which once was called “the Constitution.” Across a range of questions, they mirror their Democratic opponents in advocating judicial legislation of their preferred legislative outcomes.

Kevin R. C. Gutzman, J.D., Ph.D., Associate Professor of History at Western Connecticut State University, is a New York Times best-selling author.  He’s written Virginia’s American Revolution: From Dominion to Republic, 1776–1840, The Politically Incorrect Guide to the Constitution, and as co-author with Thomas E. Woods, Jr., Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush.

Copyright 2009, Kevin R.C. Gutzman. Published with permission of Taki’s Magazine

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.