The Supreme Court Is Not Our Benevolent Dictator

The clear and inherent constraints of the Constitution would, if applied with intellectual honesty, put an end to the expansionist vision of the federal government that is essential to the Left’s program of statism.

The Left cannot abide applying the Constitution as it is written because this would upend its multipronged efforts to reshape American government and society at large.  There is, for example, nothing in the Constitution allowing for a federal mandate that all adults purchase health insurance.

The Founders gave their political successors an amendment process so they might alter the text as the latter deemed wise (with, of course, the consent of voters in the states), and even included an amendment of their own (the 10th) clarifying that what is not delegated to the federal government is the province of the states.  Why would they bother with these things if they believed the text should be open to continuous, ideological reinterpretation?

These are chilling notions to the liberal ideologues who wish to impose their omni-beneficence on us plebian unwashed.  Only a “living, breathing” Constitution affords the room to get around the text’s obvious constrictions.  Just so my meaning is sufficiently transparent:  A person breathes.  A document states.

There is another dimension to this narrative: a willingness by some on the Left to consign to the Supreme Court all power over constitutional interpretation.

“Anybody who knows anything about constitutional law knows it’s up to nine men or women [to determine] what the Constitution says,” said Rep. Steve Cohen (D.-Tenn.) in his attack on the reading of the charter’s text on the House floor.

This is a stunning assertion, in that it implies that every executive and legislative branch action, not to mention every action undertaken by every political and juridical body in the nation, rests upon five justices.

If Cohen is correct, nothing done by any other branch or level of government can be viewed as firm.  All remains tentative until five Supreme Court justices decide its validity.  And then only until another five decide whether their predecessors were correct.

This is not only horrible, anti-historical constitutional interpretation, it is tantamount to political chaos:  Why bother having a Congress or a President or a Department of Defense or even a traffic court if the Supreme Court will decide how it wishes to construe the Constitution in any given case?

Consider the wise words of Abraham Lincoln, given during his first inaugural.  Reflecting on the exact attitude toward the Constitution portrayed by Cohen, Mr. Lincoln noted that “if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

The Supreme Court is, or should be, what Chief Justice John Roberts rightly called “an umpire.”  As he said to the Senate Judiciary Committee during his confirmation hearing, “Judges and justices are servants of the law, not the other way around.  Judges are like umpires.  Umpires don’t make the rules, they apply them.”

This perfectly reasonable statement was enough to madden even the most stentorian liberal heart.  In a speech to the liberal American Constitution Society (whose stated purpose is to “articulate a progressive vision of our Constitution and laws”), Sen. Al Franken (D.- Minn.) intoned, “How ridiculous.  Judges are nothing like umpires.”

Thanks for clearing that up, senator.

The role of the U.S. Supreme Court is to take the text of the Constitution and apply it to important legal cases.  The justices learn from precedent but are not bound by it.  They gather wisdom from previous opinions but are not beholden to them.

Instead, they are bound—beholden—to the text as it was written.  Any ambivalent meaning can be understood by studying The Federalist Papers, the debates about the Constitution and the Bill of Rights in contemporaneous congresses and state ratifying conventions, and the dictionaries and common understanding of legal terms current in the 1770s and 1780s.

Through the amendment process, “We the People” can change what we don’t like or include things we wish to add.  But no entity or person—no President, no Congress, and no justice—has the right to reinterpret the text according to his or her own whim or personal conviction.

Such efforts amount to nascent and incremental tyranny, which debases the liberties the Supreme Court has been organized to protect.