Tap-Dancing Around the Constitution

It is unfortunate when major media discuss constitutional issues yet exhibit zero understanding of why we have a Constitution and what it means. The latest example is the cover story in USA Today on 12 May, 2008, entitled “Reagan's influence lives on in U.S. courts.”

The general premise of the article is absolutely true. The influence of judges appointed by any President extends far beyond his term and often beyond his lifetime. However, the article gets lost in discussing why that’s so, and what it means.

In 1,572 words about the interpretation of the Constitution, the article never even uses the word “Constitution.” Nor does the reporter understand that the Constitution is, as its text says, “the supreme Law.” What federal judges do, in ruling on cases, is treated as merely politics by other means. In this article, judges are politicians who happen not to be elected, who serve for life, and who wear black robes. Other than that, they are as free-wheeling in their judgments as any politician in Congress, or state legislatures, city or county councils.

The article says that these judges on the 13 federal Courts of Appeal are the “first judges in more than a half-century to say that the Second Amendment protects and individual’s right to own guns.” This statement turns constitutional interpretation on its head. It is not the business of judges to rewrite what the Constitution says. It is their job to apply what the Constitution says.

Based on the briefs and the oral argument, it looks like the Supreme Court’s ruling in the Heller case, will decide that the 2nd Amendment does guarantee a personal right to own guns. That will not be because a majority of the Justices think it OUGHT to mean that. It will be because a majority of the Justices recognize that it DOES mean that.

Similar confusion of political decision-making with judicial decision-making appears throughout this article. There is no reason to pick on USA Today. Most major media make exactly the same error when discussing constitutional issues. Here are examples from the article:

It is not the business of judges to “take the lead in ruling against affirmative action.” It is the business of legislators to vote for, or against, any form of affirmative action. Judges only have the duty of saying whether what the legislators passed is in accord with the Constitution. The Constitution leads, not the judges.

The article describes the Reagan-appointees as “conservatives” because they have spoken before “the arch-conservative Federalist Society.” The Federalist Society is committed to the observance and enforcement of the Constitution as written by the thousands of men and women who took part in that process. Judges take an oath of office to preserve and enforce that same Constitution.

Wait a minute, you say. The Constitution was written and ratified by a bunch of elderly white guys wearing wigs and stockings, wasn’t it? Though elderly white men did most of the writing and ratifying, the last Amendment was ratified in 1992. Thousands of men and women then serving in state legislatures, were part of the process. Article V, the amendment process, states that once ratified, amendments are as much a part of the Constitution as what was originally written in 1787.

All the combinations of races, religions, and sexes present in modern legislatures ARE part of the “Founding Fathers.” This is not just a passing point. The Constitution belongs to “We the People,” as it proclaims. Taking the amendment process away from We the People, and handing it to five of the nine Supreme Court Justices is a frontal assault on “the consent of the governed,” the bedrock of American political theory.

Politicians must obtain the consent of the governed, because they face elections. Judges were deliberately freed from facing elections to give them independence to follow the law wherever it led. But if judges make political decisions instead of legal ones, they become dictators – serving for life with no cure for their errors.

This article’s assumption that judges are politicians, no more no less, shows here: “Their influence is a testament to Reagan's promise to set a new course for the nation's law — a promise reverberating in the presidential race today. His lawyers sought nominees who would not try to solve society's problems and who would reverse the trend of judicial involvement in school integration, prison problems and the environment.”

Creating laws to “solve problems” is a legislative function. Courts exist to enforce laws and constitutions. Apparently both this reporter and her editor slept through civics class when the “separation of powers” between the branches of government was discussed.

Of the process of appointing federal judges, the article says, “Reagan broke the prior White House pattern of accepting senators' preferences for appeals court seats and put in place a sophisticated screening of candidates run by Department of Justice and White House lawyers.” This is “senatorial courtesy,” in which a President is expected to follow the suggestions of the Senators from a state which is “entitled” to a particular judicial appointment. In case anyone missed the politics of the article, elsewhere it refers to Reagan’s “judicial juggernaut.”

The article does not note that up to ten judicial appointments are now tied up in the Senate because certain Senators insist that certain people be appointed, including the niece of a senior Democrat. “Senatorial courtesy” is only a tradition, not a constitutional requirement. In fact, hold-ups like this are instances of the Senate saying, “we won’t do our constitutional duty and vote on your judges, until you pay us judicial blackmail.”

Anyone reading, watching or listening to any media discussions about the Supreme Court, should note whether the reporter understands that courts are different from legislatures, that judges have different functions than legislators. Reports which treat judicial decisions as merely extensions of the political process totally misread the Constitution.

Judges who act legitimately are bound by their oaths of office to obey and enforce the Constitution. It should only change when the ultimate authority, We the People, choose to amend it, as in 1992. It is not for judges to amend the Constitution on their own hook. The mainstream media routinely miss that central point in their articles concerning the Constitution. This error in USA Today is, unfortunately, quite common.

About the Author: John Armor practiced law in the US Supreme Court for 33 years. John_Armor@aya.yale.edu He wrote this article at the behest of the American Civil Rights Union. www.theacru.org

I wrote this for a client. It will probably be published in a national newspaper or magazine, not known yet which one. Thought my colleagues on FreeRepublic would find this interesting. The MSM is chronic in its misunderstanding of why we have a Constitution. Sigh.

John / Billybob

Good article, Thanks for posting it.

As a footnote ( in this forum ) you should add Barack Hussein Obama’s recent thoughts on what qualifies a Federal judge for appointment in his opinion.

I forget the exact quote but it was wild liberal activist judge test BS.

This is a good summation of the contrast between those who believe that the Constitution needs to be interpreted and applied to the laws, contrasted with those who think we have a living breathing Constitution that needs to be re-interpreted.

Even some liberals think Roe vs. Wade was wrongly decided based on the law and the Constitution. The so-called right to privacy was given center stage in that case to give a woman a right to abortion on demand. Unfortunately laws can be made by judges if they get out of hand.

The next big battleground may be homosexual marriage, as judges invent a right to same sex marriage that is not found or implied in any law in any state.

“We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”— Barack Hussein Obama

As I've mentioned elsewhere, although perversions of the Constitution by Constitution-ignoring judges are a part of the problem, the main problem is actually the people. The main problem is the people because ignorance of the Constitution and how the government is supposed to work is epidemic. Widespread constitutional ignorance is evidenced by the following links.

http://tinyurl.com/npt6t
http://tinyurl.com/hehr8

The consequence of widespread constitutional ignorance is that the people are impotent to stop judges from walking all over their freedoms.

The bottom line is that the people need to reconnect with the intentions of the Founders as reflected by the Constitution and its history. The people then need to get in the faces of judges who aren't upholding their oaths to defend the Constitution, demanding that they either uphold their oaths to defend the Constitution or leave the bench.

Good article.

I read the USA piece and was astonished at the ignorance of the author regarding the judiciary and its duties and responsibilities.

And the bias:

Clinton did not choose prominent liberal academics to counter the conservative lightning rods on the federal bench.

Unbelievable.

Liberals hate the Constitution because it was written to forbid precisely what they want to do.

I don't expect it to just go away. I expect it to remain in place as it is, but to be totally ignored in practice. Look to the ancient Roman Republic for a historical analogue.

The process is already well underway.

From your first link, how does one “petition for redress of grievances”? I can bitch to my elected officials and they can ignore me. I can try to go to court but they have more of your and my money for lawyers than I have.

The Constitution requires, and a majority want the borders controlled for example. Yet they do nothing in DC and it seems we can't make them.

I don't know how effective this particular site is, but here's one approach to petitioning the government, concerning the border in fact.

Petitioning the federal government

The quote you posted from Obama was one of the items I had in mind when I sat down to write this column. I didn't use that quote, because the subject is much larger than just this election. And, I'm not too fond of McCain since he was part of the McCain-Feingold campaign finance "reform."

I was trying to make the same point as you, that constitutional ignorance by Presidents turns into unconstitutional decisions by the judges those Presidents appoint. I was just being subtle about it.

John / Billybob

That will not be because a majority of the Justices think it OUGHT to mean that. It will be because a majority of the Justices recognize that it DOES mean that.

This is correct, but might I point out that the current couple of generations, heck, some libs in previous generations, have been telling each other that there is no objective truth and what is true is only true for each individual.

This was probably the goal of post-modernist brainwashing - to make it easy to change the fundamental meaning of laws and moral codes.

Thanks

I forgot to mention, the most basic approach to “petitioning” the government is to get out and vote, in my opinion.

That doesn't work really well from a "Constitutional outcome" point of view all that often. Especially when guys like Kennedy, Kerry, Biden, Schumer etc carry so much clout in the Senate. A willfull lack of understanding of the concepts of "limited and enumerated" and "plain meaning" have held a majority in both houses since at least the Roosevelt administration.

If the people who vote for those folks want to inflict that on themselves, I don't care. But they elect them to the House and Senate where they ignore the Constitution in the name of "interstate commerce" and "general welfare" so that we now have a "tyranny of the majority" under which a majority (net tax recievers) may plunder the minority (net tax payers) and it is all "legal".

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.