(This 1997 article
(self-explanatory title) analyses
how and when the US Supreme Court
went 'extra-constitutional'. It argues
that the US Congress has the constitutional
powers to redress the problems and
that constitutional amendments, generally,
are not the way to go.)
Dr. Samuel Francis is a nationally
syndicated columnist and editor of
The Samuel Francis Letter.
Since at least the era of the Warren
Court in the 1950s, the abuses of
the American judicial system and the
corruption of constitutional government
by the courts have been major causes
of concern for American conservatives.
In the last few years, however, as
federal courts have repeatedly struck
down popularly and legally enacted
laws intended to protect American
liberties and have imposed their own
rulings as laws on communities that
never voted for them, more and more
Americans are expressing alarm. To
many, not only do the courts seem
to be out of control and intent on
establishing what legal scholars William
J. Quirk and R. Randall Bridwell call
"judicial dictatorship,"
but several court rulings seem to
strike at the very heart of American
republicanism, the concept of the
consent of the governed.
Thus, in 1994 voters in California
passed by a substantial margin the
ballot measure known as Proposition
187, which denied most public benefits
such as welfare to illegal aliens.
Within a year, a federal judge ruled
the law unconstitutional. Similarly,
in 1996 the voters of California passed
Proposition 209, a ballot measure
that effectively abolished affirmative
action programs and racial discrimination
by the state government. Again, a
federal judge ruled the new law unconstitutional
-- this time within three weeks.
In Colorado in 1992, voters passed
an amendment to the state constitution
that prohibited local jurisdictions
from adopting laws that forbade discrimination
on the basis of sexual orientation.
The purpose of the measure, known
as "Amendment 2," was to
deny special legal protection and
privileges to homosexuals and to protect
the rights of those who refuse to
do business with them -- such as landlords.
Federal courts, including the U.S.
Supreme Court in its 1996 decision
Romer v. Evans, ruled that Amendment
2 is unconstitutional.
The list, of course, could be extended
endlessly: the 1973 Supreme Court
ruling in Roe v. Wade, which legalized
abortion in all 50 states; the 1989
ruling in Texas v. Johnson, which
struck down laws in 48 states that
made burning the U.S. flag a crime;
rulings mandating forced busing, preventing
prayer in school, prohibiting public
display of religious symbols, ordering
local prison systems to release convicted
criminals, commanding traditionally
all-male schools like the Virginia
Military Institute and South Carolina's
Citadel to admit women as cadets,
and on and on. Although such "judicial
activism" is by no means new,
it has become particularly alarming
in recent years as the courts seem
to be intruding into areas where they
have never gone before and at the
very time when citizen activism has
achieved major political victories
through effective organizing within
the political system. Several of the
most controversial court rulings --
on Propositions 187 and 209 and Amendment
2, for example -- have targeted the
direct results of such activism by
citizens determined to resist the
encroachments of liberalism on their
freedom and safety. No sooner has
such conservative activism proved
to be successful in the political
arena than the courts, impervious
to public opinion and pressures, have
leaped into the breach to block it.
Although some Americans, alarmed and
frustrated by such judicial arrogance,
have begun to talk about civil disobedience
or even armed resistance to the courts,
that kind of response is both unwise
and unnecessary. What is necessary
to end the "judicial dictatorship"
is to restore in our courts, our elected
officials, our legal profession, and
among our citizens as a whole an understanding
of and commitment to the principles
of American federalism as the U.S.
Constitution enshrines it and as the
Framers of the Constitution intended
it. Judges are not the only ones who
have forgotten what the authentic
federalism of the Framers means, and
if many of our lawmakers -- including
many conservatives -- had not also
forgotten its meaning, the problem
of a court system out of control would
never have arisen.
Authentic federalism proceeds from
one of the fundamental principles
of the U.S. Constitution -- that the
states themselves are the basic units
of the federal union; that while the
states under the Constitution surrender
certain specified rights to the federal
government, they retain all the other
rights not explicitly surrendered,
as guaranteed in the Ninth and Tenth
Amendments to the Constitution; and
that Washington -- the federal government,
whether in its executive, legislative,
or judicial branches -- has no rights
or powers whatsoever except what the
states under the Constitution have
explicitly granted it.
Judicial revolution in the United
States -- the process by which the
federal courts and especially the
Supreme Court have appointed themselves
the virtual dictators to determine
which laws are valid and which laws
are not, without reference to the
wishes of voters or lawmakers or even
to the text of the Constitution --
consists precisely in overturning
the authentic federalism of the Constitution
and the states' rights it protects.
In virtually every area where the
courts have intruded, their rulings
have sought to strip the states and
local governments of their legitimate
rights and powers and to grant illegitimate
powers to the federal government.
And, perhaps the saddest truth of
all, the courts have been able to
get away with this vast usurpation
of power precisely because neither
our elected lawmakers nor the citizens
themselves have called them to account,
and we have not called them to account
because we have forgotten the true
nature of our Constitution and the
limits it places upon centralized
power.
Since approximately the 1920s, the
courts have made use of a variety
of pseudo-constitutional doctrines
and devices to override laws the judges
disliked. One such device is the misinterpretation
of the Constitution's Commerce Clause
-- clause 3 of Article I, Section
8 -- which empowers Congress "to
regulate Commerce with foreign nations,
among the several states, and with
the Indian tribes" -- to justify
federal regulation of virtually any
activity that might remotely affect
interstate commerce. While the original
intent of the Framers in adopting
this clause was mainly to prevent
the erection of internal trade barriers
between the states and at the same
time reserve the right of the national
legislature to restrict and regulate
trade with foreign nations, the courts
in the 20th century have used the
same language for purposes that never
occurred to anyone who supported the
language at the time of its adoption.
Although the Supreme Court in the
early 1930s adhered to a properly
narrow interpretation of the Commerce
Clause and thereby struck down several
of the Roosevelt Administration's
socialistic and centralizing laws
(such as the fascistic National Industrial
Recovery Act), Roosevelt himself proceeded
to threaten to pack the Supreme Court
if it did not show more deference
to his demands. FDR's threat apparently
had the intended effect, since the
Court soon began to broaden its view
of the Commerce Clause to uphold FDR's
New Deal policies. In a classic statement
affirming the new dogma, Supreme Court
Justice Harlan Fiske Stone announced
in a 1942 ruling, "The Commerce
power extends to those intrastate
activities which in a substantial
way interfere with or obstruct the
granted power." If the power
to regulate trade among the states
also includes the power to regulate
not only trade but also "activities"
within the states, then there is little
Congress cannot do to manage the internal
affairs of every state in the country.
Under this doctrine, the High Court
proceeded to uphold New Deal labor
regulations and new federal regulatory
powers that had long been held to
be beyond the legitimate scope of
federal authority.
In the 1960s, the same "commerce
power" was invoked by the courts
in upholding the 1964 Civil Rights
Act and its prohibition of racial
discrimination by private enterprise
in hotels, restaurants, and theaters.
Again, the uses that the court made
of the original constitutional language
had nothing to do with the intent
of the language or of those who originally
drafted and adopted it.
The concept of "original intent"
as the only legitimate means of interpreting
the Constitution (or any law) is crucial
to grasping the nature of the judicial
revolution. Original intent means
that in interpreting the meaning of
the Constitution or of any law we
should look to what those who drafted
and enacted the law intended the law
to mean. Indeed, the concept of original
intent is essential to the very concept
of the rule of law, because if we
depart from or ignore the intent of
the lawmakers, we have no reliable
guide to what the laws they passed
really do mean. Liberal judges and
justices regularly ignore original
intent because they want to use the
language of the Constitution and other
laws to drive their own agenda.
Last year, retired Supreme Court Justice
William J. Brennan, one of the architects
of this judicial revolution, published
an op-ed piece in the April 28th New
York Times acknowledging his own abandonment
of the original-intent principle.
"I approached my responsibility
of interpreting it [the Constitution]
as a 20th-century American,"
Brennan recalled, "for the genius
of the Constitution rests not in any
static meaning it may have had in
a world dead and gone but in its evolving
character."
But the whole point of a written constitution
lies precisely in its "static
meaning." That, indeed, is the
purpose of writing it down at all.
By fixing its meaning in writing,
the framers of constitutions try to
render it impossible for governments
to twist the meaning of the laws to
suit their own purposes. If we were
to adopt Brennan's view of the Constitution
as an "evolving" document,
then the whole concept of the rule
of law -- the rule of publicly known,
commonly understood standards permanently
encoded in the text of the statute
-- would become meaningless. The courts
could simply impose on the language
whatever meaning they wished, without
regard to the original meaning of
the language. But if the whole purpose
of writing a constitution down and
preserving records of the debates
over its adoption is to fix its meaning,
the whole purpose of justices like
Brennan in abandoning original intent
is to contrive sophistries by which
the fixed and clear meaning of the
constitutional text can be ignored
and their own preferences imposed
in the place of the law.
Abandoning the concept of original
intent and inventing clever but fallacious
rationales for other means of constitutional
interpretation have been essential
to the judicial revolution and the
immense damage it has inflicted on
constitutional government. As we have
seen, it was central to the re-interpretation
of the Commerce Clause to turn that
language into a charter for expanded
governmental power. But the misuse
of the Commerce Clause is only one
of several such devices by which the
courts have usurped power. Another,
even more important but perhaps even
less understood, usurpation consists
in what is known as the "Incorporation
Doctrine."
Under the Incorporation Doctrine,
the courts have purported that the
Bill of Rights in the Constitution
applies to the states as well as to
the federal government. Today, many
Americans seem to take this view,
and it is common to hear even well-informed
citizens and politicians talking loosely
about how certain state or local laws
or practices "violate the First
Amendment" or are "unconstitutional"
because they violate one of the other
Ten Amendments in the Bill of Rights.
But the truth is that it was not until
the 20th century that the idea of
imposing the Bill of Rights on the
states was even seriously discussed,
and it was not until after World War
II that the Supreme Court began systematically
extending its powers to strike down
state and local laws and dictate to
states and local jurisdictions what
they must and must not do.
The Constitution as originally drafted
and submitted to the states for ratification
in 1787 did not even contain a Bill
of Rights, and one of its principal
Framers, Alexander Hamilton, argued
that it should not have one. A bill
of rights, Hamilton argued in The
Federalist, #84, "would contain
various exceptions to powers which
are not granted; and, on this very
account, would afford a colorable
pretext to claim more than were granted."
Nevertheless, many of the Anti-Federalists
who feared the centralizing tendencies
of political power insisted that the
Constitution include a Bill of Rights
that would restrict federal power.
The 9th and 10th Amendments were obviously
included to alleviate the concern
that Hamilton as well as the Anti-Federalists
had raised.
But it was clearly understood at the
time that the Bill of Rights did not
apply to the states. James Madison,
one of the main architects of the
Constitution, believed that it should,
for, he wrote, "the State governments
are as liable to attack these invaluable
privileges as the General Government
is, and therefore ought to be cautiously
guarded against." He proposed
in the First Congress that the First
Amendment be extended to apply to
the states, but the Congress explicitly
rejected his proposal and supported
the view of Thomas Tucker of South
Carolina, who argued that it would
be "much better, I apprehend,
to leave the State Governments to
themselves." "As a result,"
writes historian Richard B. Morris,
"the Bill of Rights, as adopted,
contrary to Madison's intent, imposed
restrictions only upon the federal
government."
That was also the common understanding
of the Bill of Rights throughout the
19th century, and indeed it was so
established by Chief Justice John
Marshall in his 1833 Supreme Court
ruling in Barron v. Baltimore. In
that case a Baltimore wharf owner
had sued the city because, in the
course of a public works project undertaken
by the city, his privately owned harbor
had been silted up. After he lost
in the lower courts, he took his suit
to the Supreme Court, claiming that
the Fifth Amendment protected him
against the taking of his property
without just compensation. But Marshall
and his colleagues ruled against him,
with the Chief Justice holding, "Had
Congress engaged in the extraordinary
occupation of improving the Constitutions
of the several States by affording
the people additional protection for
the exercise of power by their own
governments in matters which concerned
themselves alone, they would have
declared this purpose in plain and
intelligible language."
Despite the efforts of some radicals
(and indeed some conservatives who
wanted federal protection of property
rights) throughout the 19th century,
Marshall's view prevailed as the majority
view on the court and throughout the
country. The Bill of Rights did not
apply to the states, and laws the
states enacted that seemed inconsistent
with the Bill of Rights were perfectly
valid as long as they were consistent
with the constitutions of their own
states. Of course, the court could
strike down state laws that did violate
the specific restrictions on the states
in the Constitution. Under this authentic
federalist system, the states retained
the rights and powers they had not
surrendered under the Constitution,
the federal government remained extremely
limited in its scope and powers, and
the states were able to make their
own arrangements in a wide variety
of public issues such as education,
criminal law and law enforcement,
labor law, business regulation, suffrage,
race relations, control of obscenity
and subversion, and the relationship
of church and state. The authority
of the states to govern themselves
in such areas is implicit in the language
of the Ninth and Tenth Amendments:
"The enumeration in the Constitution,
of certain rights, shall not be construed
to deny or disparage others retained
by the people," and "The
powers not delegated to the United
States by the Constitution, nor prohibited
by it to the States, are reserved
to the States respectively, or to
the people."
Problems began to arise in the early
20th century when justices schooled
in "Progressivist" political
theory sought to use constitutional
law to undermine federalism and centralize
power in the federal government. One
of the landmark cases that changed
the meaning of the Constitution and
initiated the subversion of federalism
was a 1925 case known as Gitlow v.
New York.
Benjamin Gitlow was a Communist Party
member who was convicted of violating
New York's Criminal Anarchy Law that
made it a criminal offense to advocate
the violent overthrow of the government.
Appealing to the Supreme Court, Gitlow
and his lawyer argued that the New
York law violated the First Amendment's
guarantee of freedom of expression
and that this First Amendment guarantee
was "incorporated" by the
14th Amendment's due process clause.
The Court, while upholding Gitlow's
conviction and the New York law, accepted
this argument, ruling that "freedom
of speech and of the press ... are
among the fundamental rights and 'liberties'
protected by the due process clause
of the Fourteenth Amendment."
It is from the Gitlow case that the
Incorporation Doctrine descends, and
through it the concept that the Bill
of Rights constitutes a restraint
not only on the federal government
but also on the states themselves.
The argument for the Incorporation
Doctrine relies on the 14th Amendment,
passed soon after the War Between
the States, and it claims that the
language of that amendment alters
the meaning of the Bill of Rights
as it had been understood previously
by the Framers and John Marshall.
Section 1 of the 14th Amendment contains
the language on which this doctrine
is based: "No State shall make
or enforce any law which shall abridge
the privileges or immunities of citizens
of the United States, nor shall any
State deprive any person of life,
liberty, or property, without due
process of law; nor deny to any person
within its jurisdiction the equal
protection of the laws." The
argument is that, as Justice Hugo
Black expressed it in the 1947 case
of Adamson v. California, "no
state could deprive its citizens of
the privileges and immunities of the
Bill of Rights" and therefore
that the 14th Amendment "incorporates"
the Bill of Rights into the Constitution
and applies it to the states. Black
expressed this doctrine in a dissenting
opinion, and although the Supreme
Court as a whole has never endorsed
Black's "total incorporation"
doctrine, it has, in fact, as the
Oxford Companion to the Supreme Court
of the United States expresses it,
"incorporated nearly all the
individual components of the Bill
of Rights under a doctrine called
'selective incorporation.' "
(Of course, the rights selectively
incorporated are those that correspond
to liberal prejudices. For example,
the court-created "right"
to abortion is incorporated; the constitutionally
protected right to keep and bear arms
is not.)
The de facto adoption of the Incorporation
Doctrine since the late 1940s has
been the foundation stone of judicial
liberalism ever since, underlying
the constitutional revolution over
which Earl Warren and his court presided
in the 1950s as well as the judicial
usurpations of more recent years.
As legal scholar Douglas Bradford
expressed it in the journal This World
in 1993:
This interpretative device, many writers
argue, allows the Supreme Court to
transform the Bill of Rights from
its original status, namely as a limitation
on federal authority, into a specification
of the constitutionally guaranteed
rights incident to national citizenship.
Upon this rock rests the authority
of the federal judiciary to oversee
busing, quotas, school district boundaries,
abortion, Miranda warnings, probable
cause for arrest, prison and asylum
standards, libel, pornography, subversive
speech, and the separation of church
and state. Incorporation has emerged
as the linchpin of judicial activism
in the twentieth century.
But how valid is the Incorporation
Doctrine and the argument that the
14th Amendment transforms the meaning
of the Bill of Rights from a restriction
on federal power into one on the states?
The answer is that that argument is
without merit. The Framers of the
14th Amendment had no intention of
initiating a revolution in constitutional
law or of bringing the states under
the constraints of the Bill of Rights.
The whole Incorporation Doctrine is
simply an invention of judges and
justices eager to impose their own
ideology, political beliefs, and personal
preferences on the nation as a whole,
and they have had to rely on the courts
to do so because the American people
have never supported or been willing
to enact the measures the courts have
sought to impose through their revolution.
Liberal legal scholar Charles Murphy
let this cat out of the bag when he
wrote in his glowing history of the
Warren Court that Warren "had
utilized the judiciary as a constructive
policy-making instrument in a wide
range of areas. Intent more upon social
ends than upon legal subtleties and
refinements, and candidly prepared
to say so, he had pushed the nation,
through his Court's legal rulings,
to take public actions that Congress
was unprepared to recommend and the
executive was incapable, unilaterally,
of effectively securing."
In other words, Warren was indifferent
to the real meaning of the Constitution
but simply wanted to use the Constitution
as a justification for his own "policy-making,"
and the policies he wanted to push
were those that could not be enacted
by Congress or the President because
there was no popular support for them.
Only by relying on the least democratic
and least responsive branch of the
federal government could Warren and
his colleagues and heirs hope to impose
their policy preferences on the country,
and only by distorting the meaning
of the Constitution and converting
it into an instrument for political
goals could they carry through their
revolution.
Probably the definitive refutation
of the argument for the Incorporation
Doctrine is found in the work of legal
scholar Raoul Berger of Berkeley and
Harvard University, whose lifelong
study of the enactment of the 14th
Amendment shows that most of those
who drafted and enacted the amendment
had no intention of using it to incorporate
the Bill of Rights against the states.
The framers of the 14th Amendment
certainly intended to protect the
"privileges and immunities"
of U.S. citizens from infringement
by the states, but the question is
whether the "privileges and immunities"
language of the amendment includes,
as Justice Black claimed it did, the
rights that the Bill of Rights protect.
In fact, the 39th Congress was mainly
concerned with establishing constitutional
authority for its Civil Rights Act
of 1866, which was meant to protect
the rights of recently emancipated
slaves in the South, and these rights,
specified in the Act, consisted explicitly
of the "right to make and enforce
contracts, to sue, be parties, and
give evidence, to inherit, purchase,
lease, sell, hold and convey real
and personal property, and to full
and equal benefit of all laws and
proceedings for the security of person
and property, and shall be subject
to like punishment." These rights
were held to be incident to the fundamental
rights of life, liberty, and property
without which the "fundamental
rights of citizenship" could
not be enjoyed. The emancipated slaves
were now citizens, and like all citizens
had to enjoy these fundamental rights
that enabled them to function in society
and sustain their freedom.
As Berger has shown, the "privileges
and immunities" clause of the
14th Amendment refers not to the Bill
of Rights but to the language of Article
IV, section 2 of the Constitution,
which declares, "The citizens
of each state shall be entitled to
all privileges and immunities of citizens
in the several states." The amendment
merely confirmed such entitlement
to citizens of the United States against
the states. The language of Article
IV could not refer to the protections
of the Bill of Rights because: a)
it was written well before the Bill
of Rights was even drafted; b) the
purpose of the language was to require,
as Berger writes, "states to
accord certain privileges to citizens
of a sister state," a purpose
"of entirely different provenance"
from that of the Bill of Rights, which
"was designed to protect certain
rights against the federal government";
c) the debates over the Bill of Rights
in the First Congress show no disposition
to relate the Bill of Rights to the
"privileges and immunities"
language of Article IV; and d) early
court decisions such as Corfield v.
Coryell (1823) explicitly specified
the "privileges and immunities"
to which the language of Article IV
referred (largely the same rights
later extended to the freedmen in
the 1866 Civil Rights Act) and explicitly
rejected the "all-inclusive"
interpretation of Justice Black. As
Berger writes in his authoritative
Government by Judiciary of the debates
over the adoption of the 14th Amendment
by the 39th Congress:
The constant reiteration that the
purpose of the Amendment was to constitutionalize
the Civil Rights Act, the frequent
tributes to State sovereignty, and
recognition of powers reserved to
the States by the Tenth Amendment,
in which [Rep. John] Bingham [of Ohio,
author of Section 1 of the 14th Amendment]
joined, unite to repel an inference
that the framers intended to interfere
with State conduct in its own affairs
otherwise than is described in the
Act.
Moreover, Berger quotes Hugo Black
himself, some years before his formulation
of the Incorporation Doctrine in Adamson
in 1947. Despite Black's efforts in
Adamson to argue that the framers
of the 14th Amendment intended to
incorporate the Bill of Rights, his
earlier statements contradicted that
argument. "The states,"
Black wrote in a 1938 Supreme Court
ruling, "did not adopt the [14th]
Amendment with knowledge of its sweeping
meaning under its present construction.
No section of the Amendment gave notice
to the people that, if adopted, it
would subject every state law ...
affecting [judicial processes] ...
to censorship of the United States
courts." In other words, the
inventor of the Incorporation Doctrine
himself acknowledged that the intent
of the framers of the 14th Amendment
did not include incorporation. Only
by abandoning the concept of original
intent could Justice Black expect
to sustain his own case for Incorporation.
Nevertheless, despite the absence
of any authority for accepting the
Incorporation Doctrine, the court
proceeded to apply it as it wished,
and having gotten away with applying
it in selected and limited cases early
in the century, it soon began to rely
on it for its revolutionary purposes.
The list of judicial invasions described
by Douglas Bradford suggests the scope
of the power that the Doctrine provided
to the court, and to this day the
court continues to rely on this totally
unfounded myth to justify its intrusions
into state and local affairs.
Aside from the concentration of federal
power and the centralization of judicial
power that reliance on the Incorporation
Doctrine has allowed, one result of
the 70-year crusade to bring the states
under the authority of the Bill of
Rights has been the involvement of
the federal courts, including the
Supreme Court, in micromanaging the
affairs of the states and localities
and thereby the increasing decline
of local self-government, local responsibility,
and the consent of the governed to
the arrangements that govern them.
Professors Quirk and Bridwell, in
their recent book Judicial Dictatorship,
discuss how communities are being
arbitrarily subjected to really dangerous
decisions by the courts. As of 1993,
they write, the courts controlled
"80 percent of all state prison
systems and about 33 percent of the
five hundred largest jails" in
the nation, and the Supreme Court
"routinely overrules the actions
of the local police, boards of education,
and the state laws under which they
act. The beneficiaries of the Court's
protection are criminals, atheists,
homosexuals, flag burners, Indians,
illegal entrants, including terrorists,
convicts, the mentally ill and pornographers."
Moreover, in determining how local
jurisdictions shall be governed, the
courts have long since abandoned the
practice of referring to the actual
constitutional text. Indeed, in the
case Griswold v. Connecticut (1965),
which discovered a hitherto unknown
"right to privacy" in the
Constitution that later blossomed
into the "right to an abortion"
in Roe v. Wade, Justice William O.
Brennan actually invented what he
called "penumbras" by which
specific guarantees of the Bill of
Rights imply other, unspecified rights
that the courts may invoke to strike
down state laws. In place of the constitutional
text, justices have invented other
tests by which to determine whether
a community is abiding by the Constitution.
One such test is the so-called "Lemon
Test," under which the Court
decides whether certain state laws
violate the "separation of church
and state" (a phrase not found
in the Constitution but which has
been erected into a fundamental constitutional
principle). The Lemon Test, deriving
from a 1971 case of Lemon v. Kurzman,
consists of three standards a given
law must meet if it is to be permitted:
a) the law must have a secular legislative
purpose; b) its principal or primary
effect must be neither to advance
nor inhibit religion; and c) it must
not foster an "excessive entanglement"
with religion. None of these standards
is to be found in the Constitution
either, nor is one of the corollaries
of the Lemon Test, the "Reindeer
Rule." This rule regulates what
kind of Christmas displays a local
government may put up. The display
must not have a religious purpose
because the Constitution as re-invented
by the justices does not permit government
sponsoring of religion, and one means
of determining whether a Christmas
display is religious or not is whether
it contains reindeer. Santa Claus,
his reindeer, his elves, Frosty the
Snowman, and similar secular images
of Christmas are permitted by the
U.S. Constitution. Madonna and Child,
"Silent Night, Holy Night,"
and (perish the thought) actual prayer
are verboten, unless surrounded by
secular Christmas paraphernalia.
The Lemon Test, the Reindeer Rule,
and similar devices invented by the
court have no foundation whatsoever
in the Constitution. Having abandoned
the concept of original intent, imported
their own opinions into interpreting
the words and language of the Constitution,
and fabricated the myth of the Incorporation
Doctrine, the courts have essentially
liberated themselves from the Constitution
as written and arrogated virtually
unlimited power to themselves. There
is today literally no telling as to
how the courts may rule on any given
subject, certainly not by examining
the text of the Constitution, the
records of its drafting and ratification,
or the rulings handed down by earlier
generations of jurists. Indeed, so
irrational and unpredictable have
the courts become in their decisions
that conservative journalist and constitutional
expert M. Stanton Evans concluded
in his 1994 book, The Theme Is Freedom,
"To all intents and purposes
... this arrangement [the constitutional
order established by the Framers]
is now defunct. In reality, we no
longer have a Constitution, or anything
that can be accurately depicted as
constitutional law."
Must we accept this autopsy report
on the Constitution, or is it possible
to restore the Constitution to its
vital function in our national life?
In fact, Americans have allowed the
Constitution to die by their own inattention
to judicial (as well as congressional
and presidential) usurpation. We can
restore the Constitution and the federalism
and states' rights it protects by
insisting that all branches of government
abide by the real meaning of the Constitution
and especially that the federal judges
and Supreme Court justices appointed
by the President and confirmed by
the Congress be magistrates who understand
and are committed to upholding its
real meaning.
Yet, despite the Republican majority
in both houses of Congress since 1994
and despite Republican control of
the White House for 12 years under
Ronald Reagan and George Bush, there
has been little serious effort to
restore the Constitution or bridle
the outrageous usurpations of the
judiciary. Today, all but two of the
nine Supreme Court justices were appointed
by Republican Presidents, but the
court continues to hand down decisions
that are just as alien to the Constitution
as anything Earl Warren or William
J. Brennan (both of them appointed
by Republican President Dwight Eisenhower)
ever attempted. Although Republican
presidential nominee Robert Dole last
year criticized President Clinton's
judicial appointments, it turned out
that Dole as Senate Majority Leader
had himself voted for 185 of the 187
judicial nominees President Clinton
had made in his first term. Neither
Dole nor other leading Republicans
raised much objection to either of
Mr. Clinton's two liberal Supreme
Court appointments, and some Republican
senators actually endorsed the nominees
before the Senate held confirmation
hearings. By contrast, when the Democrats
controlled Congress and Republicans
nominated justices like Robert Bork
and Clarence Thomas, the hearings
and confirmation process were savage
sessions of political opposition and
character assassination. Certainly
the Republicans should not engage
in such tactics to stop liberal judicial
appointments, but they could do far
more than they have done to challenge
the credentials and judicial philosophies
of the judges and justices the Democrats
have appointed.
Republicans and conservatives have
generally been far too timid in criticizing
liberal appointees, and they have
often allowed liberal judicial philosophy
to prevail simply because they either
don't understand what is wrong with
it or have come to believe that it
is irreversible. Thus, even Judge
Bork in his book The Tempting of America,
written after his bitter confirmation
battle in the Senate, concedes, "The
controversy over the legitimacy of
incorporation continues to this day,
although as a matter of judicial practice
the issue is settled." Of course
it is "settled" as long
as those who know the doctrine is
a myth refuse to "unsettle"
it. Only by challenging the Incorporation
Doctrine and similar myths publicly
and openly can conservatives hope
to expose their fallacies and restore
the real Constitution.
There is also a good deal of discussion
about correcting the excesses of the
courts through constitutional amendments
like the school prayer amendment,
the balanced budget amendment, term
limits amendments, the human life
amendment, and the flag amendment,
which would reverse the Court's 1989
ruling striking down state laws against
burning the American Flag. In some
cases, amending the Constitution may
be necessary, but in general it is
not a good idea. It is impossible
to amend the Constitution to correct
every bad decision the Supreme Court
hands down, and doing so would do
nothing to strike at the real root
of the problem, which lies in the
courts and the judges. As Gary Benoit
wrote last January in the pages of
THE NEW AMERICAN, "Such 'solutions'
are based on a premise that the U.S.
Constitution is the problem when in
fact the problem is a lack of adherence
to the Constitution."
Even if we could amend the Constitution
every time the courts make a bad decision,
the text of the Constitution would
become so cluttered that it would
no longer be the simple and easily
comprehensible document that has allowed
it to endure as long as it has. It
would soon come to resemble the long,
complicated, and largely useless constitutions
that many Latin American nations have
and would be a document that only
lawyers and experts could claim to
comprehend. Indeed, the courts' twisted
reading of the Constitution and their
fabrication of false interpretations
and standards have already moved us
too far in that direction.
By far the single most effective remedy
for judicial usurpation that the Congress
could adopt would be to limit the
appellate jurisdiction of the Supreme
Court. Article II, section 2 of the
Constitution states:
In all cases affecting ambassadors,
other public ministers and consuls,
and those in which a state shall be
party, the supreme court shall have
original jurisdiction. In all the
other cases before mentioned [in the
first part of the section], the supreme
court shall have appellate jurisdiction,
both as to law and fact, with such
exceptions, and under such regulations
as the Congress shall make.
Under this provision, the Congress
could simply enact a law or a series
of laws that withdrew from Supreme
Court jurisdiction any cases involving
such issues as abortion, school prayer,
law enforcement, pornography, subversion,
civil rights, or any other area in
which the Court has intruded. Conceivably,
the Congress could also simply enact
a law withdrawing from Supreme Court
jurisdiction any case involving claims
against the states based on the Bill
of Rights, thereby abolishing the
Incorporation Doctrine at a single
stroke. The court itself has endorsed
the legitimacy of limiting its appellate
jurisdiction in the 1868 case Ex Parte
McCardle.
Moreover, the Congress could also
simply abolish (or, at the very least,
limit the jurisdictions of) the lower
federal courts, which the Congress,
after all, created in the first place.
Article III, section 1 of the Constitution
states that "The judicial power
of the United States, shall be vested
in one supreme court, and in such
inferior courts as the Congress may
from time to time ordain and establish."
By abolishing or limiting such courts
Congress would remove the breeding
grounds in which many false judicial
doctrines are spawned, and even if
Congress chose not to abolish them
outright, it could still severely
discipline them by curtailing the
salaries of the judges, their clerical
and office support, and other perquisites
of office. Finally, the Congress could
impeach judges and justices whose
rulings showed that they have failed
to understand the meaning of the Constitution
or that they are really pushing their
own political agendas despite the
Constitution.
In short, the Congress, the Republican
Party, and American citizens in general
have not even begun to consider seriously
the many ways in which they could
halt the judicial revolution in its
tracks and begin restoring the Constitution
and its authentic federalism. If we
are serious about the alarm we increasingly
feel at the arrogance of judicial
usurpations, the loss of liberties,
and our commitment to constitutional
government, it is time we started.
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