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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