Was the Constitution a good idea?

THE ANNIVERSARY OF OUR achievement of political independence 208 years ago is an occasion not only for celebration but, more important, for examination of the current condition of our independence. That the ideals of personal liberty, individualism, and self-government with which we began as a nation have been allowed to deteriorate may be illustrated by a relatively minor recent incident that would once have been unthinkable in this country. A few months ago a low-level unelected and unremovable official of the national government--the federal district judge in east Texas--ordered that residents of two 52-unit housing developments in clarksville, Texas, be evicted from their homes, which some of them had occupied for more than twenty years, because of their race. The clarksville Housing Authority was ordered to assign them to new quarters so that each of the developments would have a racial balance 50 per cent black and 50 per cent white, give or take 5 per cent. There ws of course much unhappiness and complaint from all or nearly all of the people involved, but in the United States of America in the year 1984 the order was carried out; the people were indeed removed from their homes, though not all of them would go where the judge had ordered them assigned.

Now, it is true that these people were poor and that the housing developments were government-subsidized projects--the citizens of Clarksville who could fully pay for their housing, it is reassuring to note, were not required to move and can continue to live in "racially imbalanced" areas, just as those who can pay for private schools can escape court-ordered racial busing--but even so, was there not a time in America when such a government edict would have occasioned protest? What outrages did the British perpetrate or threaten that provided better grounds for revolt? We have apparently become so accustomed to the control of our lives by federal judges that we have lost all sense of indignation and all heart for resistance. But if all we did was trade King George III for the federal district judge in east Texas, I doubt it was worth a revolution.

Political liberty requires that government be according to law and with the consent of the governed, not according to the whim of an irresponsible government offical. LAw is most likely to be good, or at least tolerable, the theory is, if made by those who must live under it. But where was the law--and who were the people that gave it their consent--that required the eviction of those families from their homes in Clarksville because of their race? Well, the law, the judge told us, was the grandest law of all, the United States Constitution, and surely you do not propose to utter a word against the Constitution. We will not regain our political freedom, my thesis is, unless we fully understand and are prepared to insist that what the judge told us in this case--and what the judges tell us in almost every case in which they invoke the Constitution--is simply not so.

Few people, it seems, have ever actually read the Constitution or have a clear idea of its structure and provisions. This is not surprising, because the Constitution is neighter very entertaining nor very informative. Some knowledge of the Constitution has nonetheless become essential in order to understand clearly what it does not contain--in order to understand that it does not, for example, in any way limit the power of the states to restrict the availability of abortion or pornography or to permit prayer in the public schools.

Considering the remarkable things our judges have found in it, one could easily imagine that the Constitution is a very long and complex document, perhaps like the Bible or the Talmud or at least the tax code. It may be somewhat surprising, therefore, to be reminded that it is actually very short--easily printed, with all amendments, in a thin booklet of fewer than twenty pages--and apparently quite simple and straightforward. The Constitution was, after all, the result of the very practical and mundane purpose of granting the central government the power to ensure a national common market by removing barriers to interstate commerce.

The original Constitution, adopted in 1789 to replace the Articles of Confederation, is only about ten pages long and consists of seven articles or major sections. The first article, by far the longest, provides for the national legislature, the Congress. It consists mostly of provisions regarding methods of election and operating procedures, some of which are obsolete, having been changed by amendment. Although strengthening the national legislature, the Constitution was careful to leave general policymaking authority--the "General welfare" or "police" power--with the individual states. The national government was limited to specified powers, primarily the powers to tax, regulate foreign and interstate commerce, and provide for the common defense. The possession of wide-ranging and undefined powers by the national judiciary is, of course, totally inconsistent with this basic constitutional scheme.

Article II of the Constitution, on the Presidency, consists largely of a description of the complicated method of selection, much of which is also obsolete. The very short third article, on the judiciary, creates a federal Supreme Court and grants Congress authority to create other federal courts. It explicitly provides for congressional control of the Supreme Court's appellate jurisdiction, a potentially important means of limiting the Court's power. Article III also provides for jury trial in federal criminal cases and narrowly defines the crime of treason. These three articles provide the framework for a complete system of national government, the basic function of the Constitution.

Article IV requires each state to give "full faith and credit" to the official acts and records and court judgments of other states, prohibits discrimination against out-of-staters, provides for the admission of new states, and provides that the United States shall guarantee each state "a republican form of government." Article V provides for the amendment of the Constitution; Article VI provides that the Constitution, and the laws and treaties made pursuant to it, shall be "the supreme law of the land"; and Article VII provides for ratification. That is essentially all their is to the original Constitution.

Apart from the fact that the national government was to be limited to its specified powers, the original Constitution placed very few restrictions on either the federal or the state governments. Some of these restrictions, such as the Congress could not prohibit the slave trade until the year 1808, are obsolete, and others, such as that neither the federal nor the state governments may grant any "title of nobility," have been of little or not importance. The Federal Government is prohibited from suspending the "writ of habeas corpus" except in emergencies, both the federal and the state governments are prohibited from enacting a "bill of attainder" or "ex post facto law," and the states are prohibited from enacting any law "impairing the obligation of contracts." Only the protection of contract rights--a "bulwark" against "socialist fantasy," Sir Henry Maine called it--has been important in giving rise to constitutional litigation.

Surprising as it may seem, the Constitution nowhere states that federal judges have the power to invalidate the acts of other officials or institutions of government. The extraordinary nature of this power, and the fact that it was without precedent in english law, should alone be taken as establishing that no such power was granted. Given the very few restrictions in the original Constitution, there was little basis for the exercise of such a power even if it had been granted. It is clear that the Constitution did not--and indeed still does not--contemplate a significant policymaking role for judges.

In 1791, two years after the adoption of the Constitution, ten amendments were adopted, the so-called Bill of Rights. The First amendment, easily the most celebrated, provides that Congress shall not establish a religion or prohibit the free exercise of religion or abridge the freedom of speech or of the press or the rights of peaceful assembly and to petition government. Its basic purpose was to prohibit the Federal Government from licensing the press and from interfering in any way with state authority in matters of religion. That the religion clauses have become the means by which the Supreme Court overrides state authority regarding religion merely illustrates that constitutional law is not only not based on but often directly contrary to the Constitution.

After the First Amendment the Bill of Rights seems to go rapidly downhill. The Second Amendment, creating a right to bear arms in connection with the maintenance of a militia, seems to many people who are otherwise Bill of Rights enthusiasts to be obsolete and irrelevant--at best a nuisance constantly brought up by opponents of gun control. The Third Amendment, having to do with the quartering of soldiers in private houses, seems even more remote from and unrelated to any present-day concern. It is safe to say that few people have heard of it and fewer would miss it if it did not exist.

The remaining substantive provisions of the Bill of Rights have to do mostly with criminal procedure. The Fourth Amendment prohibits "unreasonable searches and seizures" and creates a search-warrant requirement. It creates no "exclusionary rule," which nis solely an invention of the Warren Court, the effect of which is to divert the major issue in american criminal trials from the guilt of the accused, which is typically not seriously in doubt, to the procedures by which the evidence of guilt was obtained.

The Fifth Amendment, something of a catchall, requires grand-jury indictments for "capital" and other serious crimes, prohibits putting a person twice in jeopardy of "life or limb" for the same offense, creates a privilege against self-incrimination, provides that no person shall be "deprived of life, liberty, or property without due process of law," and requires just compensation for the taking of private property for public use. The repeated references to capital punishment (referred to still again in the Fourteenth Amendment) are particularly noteworthy in light of the fact that the Supreme Court has come very close to holding (Justices Brennan and Marshall would simply hold) that capital punishment is constitutionally prohibited--another example of constitutional law made in the teeth of rather than in accordance with the Constitution.

The Sixth Amendment creates a right to jury trial in criminal cases, to be informed of the charge, to confront and compel the appearance of witnesses, and to have the assistance of counsel. The Seventh Amendment requires jury trials in civil cases involving more than $20. It is, almost all would agree, simply an embarrassment, an excellent illustration of the desirability of keeping constitutional limitations on self-government to a minimum.

The Eighth Amendment prohibits cruel and unusual punishments and excessive bail. The Ninth provides that the Constitution's enumeration of rights shall not be taken to deny or disparage other rights retained by the people, and the Tenth makes explicit that the states and the people retain all powers not delegated to the Federal Government.

It is very important to understand that the various provisions of the Bill of Rights were demanded and ratified by the states as limitations on the Federal Government, not as limitations on themselves, and it was early held by the Supreme Court that they have no application to the states. The next time someone tells you that, for example, a city cannot keep the Ku Klux klan from parading through the heart of downtown (a recurring issue in Austin, Texas)--or prohibit pornographic bookstores or nude dancing, or permit prayer in public schools--because of the First Amendment, you might point out that that is very surprising considering that the first word of the Frist Amendment is "Congress" and that it nowhere mentions the states. Of course, you might also ask where, in any event, this defender of constitutional rights finds protection of nude dancing in the first Amendment--but be forewarned that the Supreme Court can find it and has found it.

Sixteen more amendments have been adopted since 1791. The Eleventh Amendment was adopted to overturn a Supreme Court decision that allowed states to be sued. The Supreme Court has never liked this amendment, however, and has therefore largely read it out of the constitution--suing states and cities is today a major industry. Humpty Dumpty and other close students of language would no doubt find it fascinating that the very same act by a state official can be "state" for the purposes of the Fourteenth Amendment, making the state liable to suit, yet not be state action for the purposes of the Eleventh Amendment, remvoing the state's immunity from suit.

The Twelfth Amendment changed the procedure for electing the President and Vice President. The Thirteenth, Fourteenth, and Fifteenth Amendments are known as the post-Civil War or Reconstruction amendments; the Thirteenth abolished slavery, ratifying the emancipation Proclamation, and the Fifteenth gave blacks the right to vote.

The Fourteenth Amendment was adopted for the very specific and limited purpose of guaranteeing blacks certain basic civil rights, such as to make contracts, own property, sue and be sued, and be subject only to equal punishments. In the hands of the Supreme Court, however, it has become by far the most important provision in the Constitution, in effect a second Constitution that has swallowed the first and transferred all policymaking power not only to the Federal Government but to the unelected branch of the Federal Government, the Court itself. Virtually every constitutional decision involving state law, which is to say the vast majority of all constitutional decisions, purports to be based on a single sentence of the Fourteenth Amendment, and indeed on four words: "due process" and "equal protection." By totally divorcing these words from their historic purposes, the Court has deprived them of meaning and therefore made them capable of meaning anything, magic formulas suitable for the Court's every purpose.

It is therefore essentially misleading to speak of "the Constitution" or "interpretation of the Constitution" in connection with Supreme Court decisions invalidating state law. No more is in fact involved that the Court's purported discovery of new meanings in "due process" and "equal protection." Supposedly on the basis of these two pairs of words the Court has reached such near-incredible decisions as that New York may not refuse to employ Communist Party members as public-school teachers and may not give college scholarship aid to American citizens unless it also gives it to resident aliens, that California may not punish the parading of obscenity through its courthouses, and that Oklahoma may not have a higher legal drinking age for males than for females, even though it is males who present the drunken-driving problem. Except for those four words, these and countless other matters, some of much greater importance, would still be left for decision by elected officials at the state or local level rather than by the majority vote of a committee of nine lawyers, unelected and life-tenured, sitting in Washington, D.C.

To complete our review of the Constitution, the Sixteenth Amendment gave Congress the power to levy an income tax, the Seventeenth provided for the direct election of senators, the Eighteenth gave us Prohibition, the Nineteenth gave women the right to vote, the Twentieth set new dates on which terms of elected federal officials would begin and end, and the Twenty-First repealed the Eighteenth.

The remaining five amendments I think of as modern or contemporary. That is, I can remember when they were adopted. The Twenty-Second Amendment, adopted in 1951, limits the President to two terms--which in my view is, like most limitations on self-government, simply a mistake. The Twenty-Third, adopted in 1961, allows residents of Washington, D.C., to vote for President; the Twenty-Fourth, adopted in 1964, abolishes the poll tax in federal elections. The Supreme Court, however, seeing little value in confining the amendment process to Congress and the states as provided in the Constitution, then decided on its own to abolish the poll tax in state elections as well. The Twenty-Fifth Amendment, adopted in 1967, has to do with presidential succession, and finally the Twenty-Sixth, adopted in 1971, gives 18-year-olds the right to vote.

A proposed Twenty-Seventh Amendment, the Equal Rights Amendment, purported to prohibit all distinctions by government on the basis of sex. Because its literal interpretation would have been intolerable, its practical effect would have been to leave the difficult policy choices involved to federal judges, authorizing them to do what they now do without authority in the name of the Fourteenth Amendment.

We have lived now under the Constitution for almost two hundred years in unprecendted prosperity and freedom, and sound conservative principle cautions against changing what has proved workable. It may be doubted, however, that our success as a nation has been due to the Constitution, as interpreted by the Supreme Court, rather than in spite of it. We must not forget that but for the Supreme Court's interpretation of the Constitution in the notorious Dred Scott case, our greatest national tragedy, the Civil War, costing us more lives than all our other wars combined, might well have been avoided. The Court's decision that the Constitution precluded Congress from dealing with the slavery question made its resolution by war seem inevitable. A better illustration of the dangers of constitutional limitations on self-government would be difficult to imagine. On the basis of this one experience, it is doubtful that the net contribution of the Constitution to our national well-being has been positive, and it is certain that the net contribution of judicial review has been negative.

The Dred Scott decision was, however, only one of many injuries inflicted on the nation by the Supreme Court in the name of the Constitution. In the 1983 Civil Rights Cases, its next major constitutional decision invalidating a federal statute, the Court held that Congress could not prohibit compulsory racial segregation in places of public accommodation. The Court thereby gave us such segregation for another eight years, until Congress again barred it in the 1964 Civil Rights Act. The Court's current contribution in the race area, busing for racial balance in the schools, is solidly in the Dred Scott and Civil Rights Cases tradition. Federal courts have recently ruled, for example, that the Atlanta public-school system, having become virtually all black, has finally achieved "unitary" status, after more than twenty years of compliance with court orders, and may therefore terminate its racial-balance efforts. The Boston and Denver public-school systems, however, although they have gone from majority to minority white while obeying busing orders, still have some whites left and must continue to attempt to distribute them evenly among the schools.

Even without judicial review, most constitutional restrictions are just bad ideas, the product of the mistaken and presumptuous notion that the people of one time are better able to deal with future problems than the people of future times will be. In constitution-making the rule should be the less the better, and a major virture of our Constitution is its brevity. Indeed, except for what the Supreme Court has made of the Fourteenth Amendment, the Constitution would cause few problems today. Even the very brief original Constitution, however, manages to contain several provisions that are at best an inconvenience.

The Constitution provides, for example, that only a "natural born citizen" can be President. A great political leader arise and become a much-admired senator or governor, but no matter how strongly the people wanted him for their national leader, he could not be elected President, unless he was born as American citizen. Felix Frankfurter and Albert Einstein, for example, were ineligible, as is Henry Kissinger. This was a source of concern some years ago when Governor George Romney of Michigan, who was not born in this country, was seeking the Republican presidential nomination. Surely this is a situation for which there is nothing to be said. Similarly, the Constitution "protects" us from any temptation we might have to elect a 34-years-old President, a 29-years-old senator, or a 24-year-old congressman. We have particular reason to be grateful today that the drafters did not also concern themselves with maximum ages for high federal office.

Still another example of a needless and potentially troublesome constitutional restriction is the provision that a member of Congress cannot be appointed to any federal office during the term for which he was elected if Congress had raised the salary of the office during that term. This caused a serious problem when President Nixon wanted to appoint Senator William Saxbe of Ohio to the office of Attorney General. The Attorney General's salary had recently been increased as part of a general salary increase for all federal employees. The result was that President Nixon wanted Senator Saxbe to be Attorney General, Senator Saxbe wanted to be Attorney General, and no one, apparently, was opposed. Unfortunately, it was unconstitutional, proving that a real constitutional issue can arise, but not necessarily to any good purpose.

Because, as Bishop Hoadly pointed out to the King in 1717, whoever has absolute authority to interpret the law is the true lawgiver, to leave the ultimate interpretation of the Constitution to unelected, lifetime judges is to invite subversion of self-government and tyranny. The prescient Tocqueville warned, long before the Court attained its present power, that though the President, whose power is limited, and Congress, which is subject to the electorate, might err without greatly injuring the nation, "if the Supreme Court is ever composed of imprudent or bad men, the Union may be plunged into anarchy or civil war." Dred Scott proved the accuracy of Tocqueville's warning, and the Court seems determined to prove it again.

Purporting merely to enforce the Constitution, the Supreme Court has for some thirty years usurped and exercised legislative powers that its predecessors could not have dreamed of, making itself the most powerful and important institution of government in regard to the nature and quality of life in our society. It has effectively remade America in its own image, according to a doctrinaire ideology based on egalitarianism and the rejection of traditional notions of morality and public order. It has literally decided issues of life and death, removing from the states the power to prevent or significantly restrain the practice of abortion and, after effectively prohibiting capital punishment for two decades, now imposing such costly and time-consuming restrictions on its use as almost to amount to prohibition.

In the area of morality and religion, the Court has removed from both the federal and state governments nearly all power to prohibit the distribution and sale or exhibition of pornographic materials. It has further weakened traditional sexual restraints, disallowing restrictions on the availability of contraceptives and lessening the stigma of illegitimacy by prohibiting government distinctions on that basis. It has prohibited the states from providing for prayer or Bible-reading in the public schools while also prohibiting virtually all government aid, state or federal, to religious schools.

The Court has created for criminal defendants rights that do not exist under any other system of law--for example, the possibility of almost endless appeals with all costs paid by the state--and which have made the prosecution and conviction of criminals so complex and difficult as to make the attempt frequently seem not worth while. It has severely restricted the power of the states and cities to limit marches and other public demonstrations and otherwise maintain order in the streets and other public places, even though the result may be to require cities to spend thousands of dollars to prevent or control the disturbances the demonstrations may be intended to provoke.

Nothing, however, can better illustrate the extraordinary power the Supreme Court has now achieved than its busing decisions. It would have seemed incredible just a short time ago that the Court would be able to order the exclusion of public-school children from their neighborhood schools and their transportation to more distant schools because of their race. For more than a decade now, however, those orders have been handed down and faithfully complied with across the country despite the fact that they typically operate to increase racial separation not only in the schools but elsewhere and despite their obviously destructive impact on our public-school systems and our cities. Because a requirement of racial integration of the schools--compulsory racial discrimination by government in school assignment--cannot be defended, the Court has always insisted that there is no such requirement and that it orders busing only to enforce the 1954 Brown decision's prohibition of racial assignment. Difficult as it may be to believe, the only justification ever offered by the Supreme Court for its requirement of racial discriminations by government is that such discrimination is constitutionally prohibited.

Similarly, the Court has boldly asserted that its busing requirement is consistent with the 1964 Civil Rights Act. That act, however, states that "desegregation" means "the assignment of students to public schools . . . without regard to their race" and, redundantly, that it "shall not mean the assignment of students to public schools in order to overcome racial imbalance." The Court's definition of "desegregation" is of course directly to the contrary, requiring the assignment of students to schools on the basis of their race in order to overcome racial imbalance. As Senator Sam Ervin said in justified outrage, the act "says in about as plan words as can be found in English" that assignments are to be nonracial. Congress "could not have found simpler words to express that concept" and was careful to use language "that even a judge ought to be able to understand," he said, but "the Supreme Court nullified this act of Congress" by requiring racial assignment nonetheless in suits brought under the act. Perhaps the Court has obtained a sort of squatter's right to do what it wants with the Constitution, but it can claim no warrant deliberately to pervert a recent, clear, and specific act of Congress. Less egregious abuses of office by other government officials have led to calls for impeachment. But to the Supreme Court truth, logic, and the consequences of its acts impose no insurmountable obstacle. That, one is forced to admit in awe, is real power, power to which no mere elected official could aspire.

Given the Supreme Court's power, the selection of a Supreme Court Justice may well be the most important act a President may have an opportunity to perform. The Justice will decide a much wider range of issues than a President can, and he is likely to remain in office--as in the cases of Justices Douglas and Black, who served for more than a third of century--long after the President is gone. The power to select Supreme Court Justices has therefore rightly become a major issue in recent presidential campaigns. The system of self-government through elected representatives with which we began as a nation has so deteriorated that we must now choose our highest elected official with care not so much because he will govern us as because he may have an opportunity to choose one or more of the judges who will govern us and whom we will be unable to remove.

Even the election of Presidents who campaign as opponents of judicial power has, however, apparently lost its effectiveness as a means of restraining the Supreme Court. The Court's power is now so firmly established and so widely accepted as to have the status of a force of nature largely impervious to political events. With his very first appointments to the Court, President Franklin D. Roosevelt ended forever the Court's opposition to the New Deal, and never again was a federal statute regulating the national economy or welfare, or a state statute regulating business, held unconstitutional (with one exception, later overruled). President Nixon was exceptionally fortunate to be able to make four appointments to the Court during his first term (President Carter, of course, made none, and President Reagan has made only one, and that was due to an unexpected resignation). The Court's power and willingness to govern not only has not been checked as a result of the Nixon appointments, however, but has continued to grow.

Chief Justice Burger, Nixon's first appointment, wrote the opinion in the Swann case, in which the Court first ordered busing for racial balance in the schools. Justice Blackmun, Nixon's second appointment, joined Justice Burger's opinion in Swann and wrote the opinion for the Court in Roe v. Wade, in which the Court for the first time created a constitutional right to have an abortion. Chief Justice Burger and Justice Powell, Nixon's third appointment, concurred in Roe v. Wade; of the four Nixon appointees, only Justice Rehnquist dissented. Justice Blackmun also wrote the precedent-shattering opinion in which the Court held that a state may not constitutionally prefer American citizens to resident aliens.

Illustrating the utter chanciness of government by the Supreme Court, if the Senate had not rejected President Nixon's first two choices for the seat that finally went to Justice Blackmun, we almost surely would no longer have court-ordered racial housing--the Court's 5 to 4 reaffirmation of busing in 1979, after backing off for some years, required Blackmun's vote--and abortion would probably still be a matter for regulation by the people of each state through the political process. Justice Blackmun has publicly identified the prohibition of such regulation as his greatest contribution to American life. Never in our history has so much turned on the will of a single individual not answerable to the people whose lives he controls.

Justice Stevens, appointed by President Ford to replace Justice Douglas, the most radical Justice in the Court's history, has voted indistinguishably from Douglas on busing, abortion, and most other basic social issues. Justice O'Connor, appointed by President Reagan, wrote the opinion for the Court holding that Mississippi is constitutionally prohibited from maintaining a nursing school for women even though it also maintains another nuring school of equal quality that admits men--a result unimaginable just a few years ago. The ERA could be defeated in the political arena, but nothing can prevent the Justices from enacting it anyway, and theirs are the only votes that ultimately count. What Phyllis Schlafly achieved by years of magnificent effort, Justice O'Connor can cancel with a stroke of her pen.

Similarly, despite numerous cases presenting the issue to the Court, the exclusionary rule has still not been rejected. In short, six appointments by Presidents otensibly opposed to judicial activism have not been sufficient to reverse a single major innovation of the Warren Court and have, instead, produced further innovations.

Proponents of judicial review defend the power of the Supreme Court as necessary to the protection of individual liberties against government officials. The assumption, almost universal among academics, is that the American people are not to be trusted with self-government and are much in need of restraint by their moral and intellectual betters. It is somehow forgotten that Supreme Court Justices are themselves high government officials, and officials who, not being subject to the restraint of the ballot, are more, not less, subject to the corruption of power. It is also hard to understand why the search for moral and intellectual leaders, if that's to be the role of our judges, should be confined to members of the legal profession.

In any event, far from being essential to the preservation of our individual liberties, federal judges have become themselves the greatest source of danger to those liberties. It would be difficult to think of a more serious and wide-spread violation of liberty than that resulting from the Supreme Court's busing decisions--which also violate equality, in that their immediate impact is primarily on the less well off. By undermining effective enforcement of the criminal law--to say nothing of the Court's invalidation of traditional vagrancy statutes--the Court has diminished our liberty to walk the streets of our cities with a degree of security. The Court has admittedly done wonders for the liberties of street demonstrators, dear to the hearts of academics, but for the poor and elderly, forced to live in fear of the crime the Court's decisions have made more difficult to combat, the Court's contribution to liberty is less clear. Most important, every Court decision removing a policy issue from the political process deprives us of our most basic civil right, the right of self-government.

The issue presented by the Supreme Court's virtually unlimited power is, therefore, not whether we agree or disagree with its exercise in particular cases but whether we acquiesce in its usurpation by the Court. The great Judge Learned Hand protested that he would find it "most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not." I consider it more merely irksome but shameful to be ruled, not even by Platonic Guardians authorized and supposedly competent to rule, but by a handful of lawyers, elected by no one, holding office for life, and pretending to interpret the Constitution. Whatever may be the best system of government, that surely must be one of the worst. But I would, in any event, rather be misruled by my fellow citizens than saved from misrule by the Supreme Court. Bad government is a risk we must take; government by judges is an insult to our national heritage.