Altering the
Constitution
October 19, 1999
I constantly
reread The Federalist Papers, and every time I do my
heart cracks a little. If only the Constitution worked the way Alexander
Hamilton and James Madison promised it would!
In Federalist No. 53, Madison noted as a
flaw in the British system that the British Constitution — the
almost sacred fundamental law — could be changed by a simple
legislative act of the Parliament. The Parliament therefore had the power
to abolish the liberties of the people at any moment.
Herein lay, according to Madison, the
superiority of our proposed Constitution. It was to be “a
Constitution established by the people and unalterable by the
government.” Today the federal government constantly alters the
Constitution, making it what Thomas Jefferson feared: “a blank
paper by construction [interpretation].”
Jefferson warned that the federal
government must never be allowed to be the sole and final judge of its
own powers, because it would construe those powers so broadly as to
destroy all limits on them. Yet we now take for granted that the U.S.
Supreme Court has the authority to decide what the Constitution means,
though no such authority is given to it in the Constitution itself.
Most Americans know little about the
Constitution, and much of what they know ain’t so. They
“know” there are three branches of government, that each
state has two U.S. senators, and that the Bill of Rights says something
about freedom of speech; and they are content to let the Supreme Court
fill in the blanks. And conservatives do little to correct this impression.
Altering the Constitution has become the
daily business of the federal government the document is supposed to
guide and limit. Both Congress and the judiciary assume, and exercise,
countless powers they aren’t entitled to.
The most spectacular and controversial
example of usurpation was the Court’s 1973 ruling that state
abortion laws are unconstitutional. This plainly amounted to a veto of the
will of the people in all 50 states.
The purpose of judicial review, as
Hamilton explains it (in Federalist No. 78), is to prevent the legislative
branch, meaning Congress, from violating the abiding will of the people as
expressed in the Constitution. Otherwise, every legislative act would
supersede the Constitution as “established by the people,”
just as in Britain.
But the 1973 abortion decision was just
the opposite of what Hamilton had in mind. It was a case of the judiciary
imposing its own will on the people. Such an arbitrary interpretation of
the Constitution (which of course says nothing about abortion) had never
occurred to anyone in his right mind. The “right” to abortion
was sheer fabrication.
Ah, but we are told that the Constitution
is a “living document,” which means something different in
every age. By implication, the government doesn’t alter the
Constitution; nobody alters it. It alters itself!
By this pitiful sophistry the Court denies
responsibility for its own impulsive alterations of the Constitution. It
can’t admit that it struck down abortion laws just because it
didn’t like them.
Opponents of the Constitution —
especially the pseudonymous (and still unidentified) “Brutus”
of New York — warned that this is exactly what the federal courts
would do, since the Constitution had placed them “above
control.” “Brutus” predicted that “the judges
will be interested to extend the powers of the courts, and to construe the
Constitution, as much as possible, in such a way as to favor it.”
Arbitrary judicial rulings would gradually “diminish and destroy
both the legislative and judicial authority of the states.”
Hamilton said this could never happen,
because the judiciary was too weak to impose its will — it was
“the least dangerous” of the three branches. Not to worry.
“Brutus” replied that
“to answer objections made to a power given to a government by
saying it will never be exercised, is really admitting that the power ought
not to be exercised, and therefore ought not to be granted.”
Well, the Court’s power
wasn’t really “granted” by the Constitution; it was
taken by usurpation. But today the Court is indeed “above
control.” So “Brutus” was right.
And “Brutus,” whoever he
was, was an honorable man.
Joseph Sobran
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