On Every Question of Construction
A couple of items in the news lately have brought the judiciary back into the consciousness of the American public; the announced retirement of Supreme Court Justice John Paul Stevens, and the recent decision by federal judge Barbara Crabb in Wisconsin in which she ruled that the National Day of Prayer is a violation of the Establishment Clause of the U.S. Constitution. In the rulings of both justices we find an egregious disrespect for the plain meaning of the Constitution, and it is a failure of the American people to learn the Constitution that has allowed us to stray so far.
As a nation, we have reached a point where we bestow upon the courts an unjustified level of deference to their perceived wisdom. In fact, the Founding Fathers created the judiciary to be the weakest of the three branches, vested as they are with lifetime appointments.
Thomas Jefferson wrote (in a letter to William C. Jarvis, 1820) that “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so.” Yet today we have allowed the courts to be elevated to the level of an oligarchy, where we accept rulings that are clearly unaligned with the Constitution without so much as a whimper.
The courts have strayed far from a strict interpretation of the Constitution and now rely too heavily on stare decisis (the legal principle of abiding by precedent, even when that precedent is clearly incorrect), as well as personal ideology, which they justify with the concept of a “living” Constitution. In fact, Justice Ruth Bader Ginsberg famously stated in a 2005 speech that she had relied on United Nations charters and even the constitution of South Africa as basis for some of her legal rulings, as opposed to relying strictly on the U.S. Constitution.
By now we should see that the courts are susceptible to the same fallibility and corruptions as anyone else. That is evidenced in a number of rulings over the last half century, and the reasoning seems to get more convoluted with each passing year. It is incumbent upon the American people to once again restrain the courts by insisting that the legislature exercise its proper authority, removing certain cases from the scope of consideration by the courts, and impeaching justices that show a pattern of disregard for the clear intent of the Constitution.
A few examples of judicial malfeasance include the 2005 case of Kelo v. City of New London, in which retiring Justice Stevens wrote for the majority in overturning centuries of standing precedent pertaining to eminent domain in the Takings Clause of the 5th Amendment. This allowed government to take real property from one private entity to give to another private entity as long as it increased the tax base. In the 2005 case of Roper v. Simmons, a young man, just prior to his 18th birthday, kidnapped, bound and then threw a woman off a bridge, after bragging to his friends that he would get away with it because he was not an adult. The court ruled that those under 18 were not mature enough to understand the consequences of their actions and that “evolving standards of decency” forbade the young man’s execution, despite the fact that Simmons admitted the act was premeditated.
Other cases include the 2007 ruling that allowed the EPA to regulate CO2 as a harmful greenhouse gas (the same CO2 that makes up <1% of the atmosphere and which you generate every time you exhale), the 2006 Hamdan v. Rumsfeld (in which the court granted constitutional protections to terrorists who are not U.S. citizens and do not qualify for Geneva Conventions protections), and of course the case which every Supreme Court nominee must declare fealty to, Roe v. Wade (in which the Burger court discovered, under a broad interpretation of the 14th and 9th Amendments, a right to kill an unborn child which was justified by a “right to privacy” that had managed to elude the Founding Fathers and the subsequent legislatures and courts for almost two centuries; this has led to the extermination of 50 million children in the last four decades).
It is important to note that since the Supreme Court reviews only a small number of cases each year, the rulings of the appellate courts are of extreme importance. Appellate cases include the 2005 ruling by the 9th Circuit COA in Fields v. Palmdale School District in which the court declared that parents’ fundamental right to determine the upbringing of their children “does not extend beyond the threshold of the school door,” and that a public school has the right to provide its students with “whatever information it wishes to provide, sexual or otherwise.” This suit was brought by parents after the school district issued a 79-question questionnaire to 7-10 year olds, asking them whether they had thought about such things as having sex and suicide. If the Supreme Court does not review these cases then the rulings stand.
In the next few months a battle royale will be waged over President Obama’s nominee to succeed Justice Stevens. While deference should be given to any president’s nominees, we should not allow that deference to extend to the point of approving a justice that has shown clear contempt for the Constitution and a history of substituting personal ideology for sound legal reasoning. We should no longer accept the tortured logic and convoluted paths that have been taken to reach decisions in cases such as Kelo.
In an 1823 letter to William Johnson, Founding Father Thomas Jefferson wrote “On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
Those words bear no resemblance to what we see in any branch or level of government today. Today government ignores the Constitution and attempts to expand power as far as the people allow. It is time for a responsible citizenry to rein in the abuses of a government that has long ago forgotten that it serves the people, not the other way around. This assuredly includes the courts.