“There
is not a syllable in the plan [the Constitution] which directly empowers the
national courts to construe the laws according to the spirit of the
Constitution.” Alexander Hamilton, Federalist 81
During
the Constitutional Convention and state ratification conventions, the judiciary
was the least discussed branch of the national government. From a design
perspective, almost all of the debate and alarm seemed to have been focused on
the executive and the legislature. The simplest explanation is that the
judiciary was familiar and non-controversial. Hamilton wrote in Federalist 78, “[T]he judiciary, from the
nature of its functions, will always be the least dangerous to the political
rights of the Constitution; because it will be least in a capacity to annoy or
injure them.”
Every delegate knew what a judge did and understood their
role in the government, and their only concern was insuring their independence.
A few anticipated that judges might legislate from the bench, but most of the
delegates were more concerned about politicians putting undue pressure on judges.
The Framers solution to this threat was to give justices life tenure.
For
nearly one hundred and fifty years, the Supreme Court restricted itself to
evaluating laws based on what today would be called an originalist perspective.
The Commerce, General Welfare, and Necessary and Proper clauses and Bill of
Rights were interpreted on a generally narrow basis. The court took the
enumerated powers seriously, showed deference to state authority, and restricted
interference with contracts.
During
these first years, the court generally did not go out of its way to discover new rights,
but enforced rights specifically called out in the Constitution—with
one tragic exception. After 1868, the Supreme Court permitted racial segregation
to deny rights to Americans that were unequivocally full citizens as declared by
the 14th and 15th Amendments. This shameful behavior by the court
was a serious example of the Supreme Court kowtowing to public opinion
and political pressure. The country should have taken greater notice because the
court’s turning of a blind eye toward this violation of the Constitution was a
harbinger of things to come.
Something
Went Awry
The
Supreme Court abandoned self-control during Franklin Roosevelt’s terms in
office. In a 1935 letter to a Congressional committee chairman, Roosevelt
wrote, “I hope your committee will not permit doubts as to the
constitutionality, however reasonable, to block the suggested legislation.” At
first, the court resisted the constitutionally expansive programs of the New
Deal, but later became collaborators with Roosevelt by acquiescing to his
desire to ignore Constitutional limits.
An
Ideal World
In an
ideal world, a justice would hold up a law against the Constitution, and rule
if it is in compliance or not, with a simple up or down vote. This ruling
should be based on the clear wording of the Constitution, with perhaps a look
at the debates and ratification process to discover the intent of a document
meant to bind the government to strict rules of behavior. Another consideration
might be precedents set by prior courts, but these rulings should be secondary
to the Constitution—after all, both conservatives and liberals
can point to dreadful decisions by the Supreme Court.
Unfortunately,
the United States does not live in this ideal world. Today, judges revise laws
by using inventive interpretations of the Constitution. (In his later years, Rexford
Tugwell, a Roosevelt advisor, called it “tortured interpretation.”)
Unsanctioned revisions have expanded Federal authority over people, states, corporations,
and organizations.
Madison Was Wrong
Most
of the delegates to the Constitutional Convention saw the judiciary as a great
check against the abuse of power by the national government. In a speech proposing
the Bill of Rights to the House of Representatives, Madison said, “If they [rights]
are incorporated into the Constitution, independent tribunals of justice will
consider themselves in a peculiar manner the guardians of those rights; they
will be an impenetrable bulwark against every assumption of power in the
legislative or executive; they will be naturally led to resist every
encroachment upon rights expressly stipulated for in the Constitution by the
declaration of rights.”
Madison
was wrong. The Supreme Court has been an accomplice, not an impenetrable bulwark against assumptions
of power by the legislature or the executive. Neither has the court resisted
“every encroachment upon rights expressly stipulated for in the Constitution.”
Instead, the court has denied stipulated rights, and went out of its way to
protect unstipulated rights. Liberty depends on the rule of law, not the whim of a tribunal.
Getting Back to Basics
Restoring
the Constitution won’t be easy … or quick. For one thing, the selection of a
Supreme Court Justice has become a highly charged emotional event. It’s
instructive that political movements spend an inordinate amount of resources
influencing Supreme Court nominations, and hyperventilate when fighting a
nomination they don’t like. Everyone knows that these are enormously
powerful individuals—with life tenure. Everyone also pretends
their candidates are impassive judges that measure every decision by the law. If
that were so, no one would care who sat on the bench.
The
only way to repair our Constitution is with justices that have a deep-seated
loyalty to the founding principles. Since presidents typically appoint based on
political leanings, it will be up to the Senate to advise the president on acceptable candidates, and then consent only to candidates that can show a life’s work of being faithful to the
Constitution. If Constitutional integrity is going to be restored, the weight
of the task will be on the Senate.
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