Originally published by San Diego Rostra, Dec. 14, 2009
This week, on the radio, I read a comment from an atheist regarding my Op-Ed piece of December 4, 2009, for San Diego News Room. In arguing about what our constitution’s Establishment Clause meant, he reacted to my statements about the the original intent of our forefathers:
“As for your new article on the San Diego Newsroom web site, I must take issue with one of your statements. You made the following statement regarding the Constitution of the United States and our ‘forefathers’.
‘What the constitution meant to them is what the constitution means, period.’
Totally, hopelessly wrong. What the Constitution means is what the Supreme Court says it means, period. Reading the minds of the likes of Thomas Jefferson may be within your abilities, but I’d like to see proof.”
Oh really? How about the diaries written by the forefathers? How about their letters? Are they proof?
I hope you’re all paying serious attention to this. In my article, I mentioned that in the days of our forefathers religious shrines were all over public land. That doesn’t tell us anything about the minds of the forefathers? Neither do the diaries of the men? It’s impossible to know from the actual words of Jefferson and Adams how they felt? But the often arbitrary, often emotional interpretation of the Supreme Court tells us everything we need to know about Jefferson and Adams? The words of our forefathers and the actions of our forefathers do not explain their own words, but the 9 justices appointed by politicians with biases and litmus tests do explain their words?
To anyone who thinks the Supreme Court has a perfect, exclusively authoritative, unchecked understanding of our constitution, I have just three words for you: Dred Scott Decision, where the wise, insightful, legal scholars ruled that African slaves were property. Still care to point to that court as a supreme unquestioned power?
News flash: No where in the constitution does it say that the Supreme Court interprets the constitution. Nowhere. Don’t bother looking. You won’t find it. The purpose of the Supreme Court is not to interpret the constitution. The purpose of the Supreme Court is to enforce the constitution.
In all likelihood, many readers are raising their eyebrows about now, even fellow conservatives who sympathize with public reaction against judicial activism. Perhaps what I’m saying sounds too good to be true, or too bizarre to be true. Certainly this position is out of the mainstream at our present time in history. If you asked most Americans, they would say it is indeed the job of the Supreme Court to interpret our founding document. So would most lawyers and certainly a good many judges. Yet, some legal scholars would agree with me. Others might answer delicately, as law professor and talk show host, Hugh Hewitt did when I interviewed him a few years ago. Asked if the constitution never intended for the Supreme Court to interpret, he answered, “It can be so argued.” (The Bob Siegel Show 4-24-05)
Throughout history, majority opinion has often been wrong. Most people of the world accepted slavery for the greater balance of history (including, once again, the Supreme Court itself, but I won’t belabor that point). And so, perhaps we would be well served to temporarily ignore public opinion and instead examine the testimony of facts from the past.
The interpretation tradition began when Thomas Jefferson refused to install some justices John Adams had appointed before he left office. Since the judges were never inaugurated, Jefferson didn’t feel obligated to use them. His government was sued in a landmark case called Marbury vs. Madison, (1803). Because this unusual situation had never come up in such a high level, complicated scenario, litigation turned to the Supreme Court, which ordered Jefferson, via his Secretary of State, James Madison, to appear before them and explain himself. Jefferson ignored them. Marbury (one of the justices spurned by Jefferson) referred to the Judiciary Act of 1789 as a basis for the court being able to issue such commands. Ironically, the court, after first showing sympathy to Marbury, pronounced a contradictory ruling. It decided that the Judiciary Act was unconstitutional, because it gave the Supreme Court more power than the constitution intended. So even though the justices were sympathetic to Marbury, and insisted the law set up by congress was on his side, they ultimately ruled against him by deeming that same act of congress to be technically unconstitutional. Marbury, according to the high justices, should have started with a lower court rather than the ultimate court in the land and therefore, they could not issue the verdict that both they and he wanted. This decision was actually a political stroke of genius under the leadership of Chief Justice, John Marshall, who found a way to lecture and chastise his rival, Jefferson without giving the popular president an actual court order that he would certainly refuse to obey. In short, Marshal devised a clever strategy to save face by having his cake and eating it too. Nevertheless, in calling an act of congress unconstitutional for giving too much power to the court, this landmark ruling established a tradition about the Supreme Court telling us what the constitution intended. Gotta see the irony.
Now here’s the thing: Jefferson disagreed with the court’s new found powers, even though, in this particular instance, the ruling was personally convenient, as now, he did not have to appoint the justices. Jefferson feared that if this understanding of judicial power were accepted, it would be “placing us under the despotism of an oligarchy (Thomas Jefferson, to William C. Harvis, 1829 ME 15: 277)
Unfortunately 1803 spawned a custom that we never quite shook. It established what is commonly called “Case Law” and yes, law schools teach and generally accept Case Law. I am convinced this is based upon a mistake, grandfatherclaused into a tradition that has taken on a life of its own. Today we live in the debris of that fateful Marbury vs. Madison ruling. Not only the Supreme Court, but other courts along the ladder make decisions to overturn the will of the people or the laws of congress. The most recent example is one of the most chilling of all: A court just ruled that congress has no constitutional right to pull funds from ACORN. See? Despite voter fraud so bad they were registering Donald Duck, and despite sting operations which caught them helping prostitution slave markets set up tax shelters, some judges found inherent rights for ACORN buried so deep in our constitution, it takes years and years of sitting on a bench to find them.
I don’t mean any disrespect for the honorable profession of magistrates. The Supreme Court is our third branch of government with an important role to play. When unusual situations arise, it falls upon the courts to apply our constitution. I suspect that’s what many people mean anyway when they use the word “interpret.” But it is a false idea that judges can legislate from the bench with unchecked power over the other two branches of government, free to overturn laws at will. Such usurping of authority was the farthest thing from the minds of our forefathers. The constitution is a clearly written document. It had to be. The authors knew a whole country would be governed by it. They did not wish to confuse us. They did not write in riddles or parables. Neither is it poetry or symbolism. If we know how to read, we do not need anyone to tell us what it means. With all due homage to those who graduated law school, I have a message for everyone else: You do not have to be a lawyer to comprehend the constitution. Most people will challenge you for having such brass. But Thomas Jefferson will be on record agreeing with you. You’re not in bad company.
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