Judges Ignore Real Constitution
by Donald Devine
Issue 110 - June 25, 2008

Even the very best judges fail to appreciate the real Constitution. It is not their fault. The document is simply ignored in law school. All they get of it is a sentence at a time followed by pages of judicial opinions about what that line really means. Lawyers rarely see the whole document. One lawbook mentioned that an outsider had read its proof copy and suggested printing the entire Constitution at the end, which it did, as if this were a radically novel idea.

The reason judges read other judges and lawyers opinions about the Constitution rather than the document itself is that judicial doctrine today holds that the Constitution is simply what judges say it is. That is what the “supremacy clause” says, right? At least that is what the judges think; so it must be so. Why bother taking the really radical step of reading it, right?

Just a few moments ago a judicial symposium covered by C-SPAN recorded a judge being asked at a conference what he would do in a specified legal circumstance concerning mandatory minimum sentences. He replied “I can do anything I want. I am a federal judge! [Laughter] I am only being a little dramatic. A federal judge has lifetime tenure and can do pretty much what he wants.” That is pretty heady stuff.

Even the most conservative jurists are captured by the idea that judges control the Constitution, for better or worse. There is none better than Robert Bork, the man who was so unfairly denied the Supreme Court because his views of the Constitution differed from the majority in the Senate, basically on one issue, abortion. In a recent major essay for The American Spectator, Bork was characteristically blunt. “The Federalists who favored the Constitution regarded its structural features as crucial.” But these proved a “false hope.” The adoption of the Bill of Rights and the 14th Amendment “ultimately led to a virtually omnipotent aristocracy” of judges who have “rewritten major features of the Constitution.”

In no area has this been more true than in the area of federalism. The original idea that the national government is limited in power by the Constitution is a fantasy.

The idea of confining Congress to the enumerated powers of Article I section 8 (an idea reinforced by the Tenth Amendment) is dead and cannot be revived. Contrary to some conservative fantasies, federalism was killed not by New Deal justices who perverted this aspect of the Constitution but by the American people and the realities of national politics. The public wants a large and largely unrestrained national government, one capable of giving them what they want…

The people demand strong national government and the judges will deliver eventually.
The idea that the states or even the institutional structure as a whole can affect this is simplistic. “Today, the vitality of federalism is reduced to the occasional limitation of some federal power that has absolutely no relation to an enumerated power. Such cases tend to be trivial.” Notice that it is “cases” that count. He says he is talking about the “decline of federalism as a judicially enforced doctrine.” What counts is not the structure but what the judges did pervert, the Bill of Rights, and how they enforce their preferences through it.

It is of great importance what federal courts decide to enforce or not in interpreting the Bill of Rights, of course, but is that all there is to the Constitution? Perhaps so from the judicial perspective. Political scientists see it differently. Judges assume their decisions are self executing. Actually, judges do not “enforce” anything. A president by the name of Andy Jackson sitting in one of the other structural institutions the Founders relied upon, put it simply: “The Supreme Court has made its decision, now let it enforce it.” The Supreme Court had ruled that large tracts of land must be returned to the Cherokee Nation--but the Cherokee never got their property back because the president would not enforce the court ruling against the majority population.

Unlike most jurists, Bork can think like a political scientist, indeed he quotes one, when he explains how the courts have taken power from the other branches through an alliance with what he calls the “intellectual class” to change the meaning of the Bill of Rights. But he does not consider that such political alliances can change and new ones can alter the balance of power—this seems a “utopian myth,” although he also says it is possible. But change can take place not only within the judicial branch—but also and more likely can come from the other branches, including the very structures he says are dead. The President can nominate new judges or selectively enforce their decisions or delay or ignore them. Congress can agree to new judges or refuse those holding earlier interpretations, or even pass laws that undermine decisions or void them. Even the weakened states can evade decisions or ignore them.

An old study by the Yale political scientist Robert Dahl should be required reading for every judge. He looked at major Supreme Court decisions over a long period of history and found that Congress –when it was very concerned about the subject matter--often “overrode” court decisions by passing laws that effectively nullified them. Even today, Congress, the president and the states have effectively overruled court decisions against race preferences for decades. As recently as the first Bush presidency, Congress directly overrode the Grove City decision. President George W. Bush has effectively delayed judicial review of the Guantanamo prisoner cases, which will not be settled until long after he leaves office. Even the states have effectively delayed Supreme Court decisions on separation of church and state--cases of religious iconology at Christmas or about prayers keep coming to the courts decades after the judges supposedly had settled the matter.

No, the Bill of Rights does not “have far more viable relevance to individual liberties than do the structural safeguards stressed by Madison.” The individual structures--Congress, president, states (and de facto local and private structures too) as well as courts--still are primary. Checks-and-balances live. Most important, there is no reason to think the present judicial supremacy will last forever. Things change. The Founders did not set precise power boundaries between these structures. It is like a bridge that uses flexibility rather than rigidity for strength. Under Abraham Lincoln, the president was supreme, virtually ignoring Supreme Court demands for habeas corpus the entire Civil War—but he was immediately followed by the weakest president, and the strongest (even effectively unicameral) Congress.

Today, Mr. Bork is correct, the court and national government are the most powerful. But that can change—perhaps as soon as the next election. For the court does follow the election returns—and so do the other structures. And the later can fight back as Jackson, Lincoln and Bush prove. The national government has had a long run since the New Deal. But after its seven generations, its entitlements now are ready to explode and the most likely solution will be to send most other domestic programs back to the state, local and private sectors. After all, the national government was sitting pretty smug in 1787; but the states met, created a new constitution and changed pretty much everything in a few months period.

The law, as important as it is, is not everything. Politics and the structures through which it operates are by far the more viably relevant means, especially for change. That is how the Founders created it and it still pretty much operates how Madison envisioned it—checking and balancing power but with no predetermined result. As strange as this cumbersome and flexible structure seems, it has lasted longer than all of the more legalistic alternatives.

Donald Devine, the editor of Conservative Battleline Online, was the director of the U.S. Office of Personnel Management from 1981 to 1985 and is the director of the Federalist Leadership Center at Bellevue University.