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Democracy, the Supreme Court, and our two constitutions.

I. THE SPIRIT OF DEMOCRACY

Wallace Mendelson, my late great friend and mentor, was fond of saying that "no man is fit to govern another." (1) The idea has, no doubt, been voiced often and its force felt even more often in human history. Though, in our "age of expertise," its force seems to have been blunted for some of the reasons discussed herein. Nonetheless, the whole spirit of democracy is contained within that simple and true statement. Not just a particular form of democracy, but any political expression of the idea that human beings ought to be allowed some meaningful say in the decisions that determine how they are to live their lives. If this is true, then democracy is a moral requirement, not merely a political form.

Yet democracy is always and everywhere under attack. Even in the most democratic regimes of modernity, forces are constantly at work to undermine its underlying principles. These forces are not intermittent. They do not appear only when conditions are favorable and disappear when unfavorable. They are like the pathogens always present in the human body, always ready to spring and kill at any opportune moment. As Jean-Jacques Rousseau suggested, the forces of the corporate will, which is the interest of the government or the ruling elite, are always busy undermining the general will, which is the common good. (2) Why are these forces constantly at work? Because Lord Acton was right when he told us that power always tends to corrupt. (3) The arrogance of power is universal and is not confined to a historical period, party, region, institution or individual.

This means that, since governing requires the exercise of power, those who wield it will tend to be corrupted by it, not sometimes but always, and not because they are vicious or inept, but because governing others always, in the last analysis, requires more virtue than any human being can muster. This is true not only for generally acknowledged bad rulers, but for a Churchill, Lincoln, or Pericles as well. That is why the struggle for constitutional democracy is always and everywhere a struggle for heightened awareness of the limits of politics, law, and anyone's capacity to govern others. And it is why the preeminent virtue for anyone attempting to exercise power over others is humility, exemplified by Christ and the early Christians in their struggle with pagan Rome, and developed theologically and philosophically by the Fathers of the Church. For Saint Augustine, this virtue was the defining feature of the City of God, contrasting sharply with the leading feature of the prideful City of Man, and thus of all earthly government. (4) Christ concludes his warnings to the scribes and Pharisees by saying: "He who is great among you will be a servant to you. Whoever will exalt himself will be humbled and whoever will humble himself will be exalted." (5)

Fallen human nature ensures that those who wield power will almost always succumb to pride. They will forget the maxim that no man is fit to govern another. They will, at some point, think themselves fit. Once they begin to think themselves fit to govern others, determining for those others how they should live their lives, they will be well on their way to forgetting that people ought to have a meaningful say in the decisions that determine how they live their own lives. They will be on the road to Elitism. Elites have always concluded that ordinary people are incapable of governing themselves. Even so, however much a mess that ordinary people may make of the business of self-government, the fact remains that entitlement to rule cannot be taken from one on the basis of the intelligence quotient (IQ), experience, knowledge, or expertise of another. (6)

The threats to our constitutional democracy that we experience today are rooted in elitism, the belief that ordinary people are not really fit--and therefore are not entitled--to govern themselves, and that small groups of people "in the know"--whether scientific, technological, economic, political, legal, or academic elites--can do a better job and are therefore entitled to do the governing for the rest of us.

The threats come from everywhere and from all directions, but as the theme of this symposium is the role of the judge in the Anglo-American legal tradition, I want to focus in the remainder of this essay on what I consider one of the gravest threats of all: the rise of federal judicial supremacy in America. We now live under a regime in which the federal courts have established a virtually unchecked monopoly in the field of constitutional interpretation. Since federal constitutional law authorizes and circumscribes virtually every corner of the public policy arena, those leaders whose authority most closely approaches the absolute power warned of by Lord Acton and thus who are most in need of the virtue of humility--the awareness of their essential unfitness to govern others--are federal judges, particularly the justices of the United States Supreme Court. Such awareness has not been evident during the past several decades.

The consequences of federal judicial supremacy were exemplified recently and most dramatically in the United States Supreme Court's 5-4 decision in Obergefell v. Hodges, in which the Court ruled that state laws defining marriage as a bond between one man and one woman violated the Fourteenth Amendment of the Constitution. (7) This decision overturned a legal tradition so long established that its origin is rightly regarded as "time out of mind." Chief Justice Roberts, dissenting from the ruling, warned that, despite the many things that might be celebrated in the decision, one should not "celebrate the Constitution, [for] [i]t had nothing to do with it." (8)

Though it probably will not seem so to most people nowadays, this should be viewed as a rather shocking statement. In it, the Chief Justice of the United States declares that his Court has just made a world-historic constitutional decision that has nothing to do with the Constitution! If it does not seem like a shocking statement, perhaps it is because the very same could plausibly be said of dozens of Supreme Court decisions handed down during the past half-century. So it is time to catch a breath and take stock of where we really are in the process of American constitutional development. To accomplish this, and to see how we got from the Founders' Constitution to Obergefell, some historical perspective is needed.

II. JUDICIAL SUPREMACY AND THE CONSTITUTION

The first thing that needs to be done is to distinguish judicial supremacy from judicial review. Although modern judicial supremacy is often regarded as a development of judicial review, they are not the same thing. Indeed, they are not even the same kind of thing. Constitutional judicial review is simply the authority of a court (any court) to disregard an otherwise applicable law in the decision of a particular case, when it determines that law to be incompatible with an applicable constitutional provision. As such, judicial review is a normal part of the judicial function and is a power possessed by any court with authority to apply constitutional law in the decision of cases and controversies. On the other hand, federal judicial supremacy, as it is presently understood, refers to the power of federal courts--the Supreme Court in particular--to issue binding, conclusive proclamations on the meaning of all provisions in the United States Constitution. To put the matter in the language of modern political correctness, judicial review is "inclusive" (all courts have it), while judicial supremacy is "exclusive" (only the Supreme Court has it in the last analysis).

But the Constitution is very clear on the judicial role, and it does not authorize judicial supremacy. Judicial supremacy is an unwarranted extension of the power of judicial review--a power that allows the Court to disregard or invalidate laws in a limited range of cases. To see this clearly, we need to take a closer look at some of the Constitution's key provisions.

As is well known, the Constitution establishes three main branches of national government. In Article I, Section 8, specific lawmaking duties are assigned to Congress, and in Article II, Sections 2 and 3, presidential duties are assigned. (9) Judicial duties are assigned to the Supreme Court--and lower federal courts that Congress chooses to establish--in Article III, Section 2. (10) The judicial power is precisely stated to be the power to decide cases arising under the Constitution, laws, and treaties of the United States. (11) This means that decisions of federal courts applying federal laws are binding on the parties to the lawsuits that are decided by the courts according to those laws. What it does not mean is that the decisions of these courts become laws in their own right or policies in the legislative sense.

After assigning powers to the national government, the Constitution then places some limitations on how national and state power can be exercised. This is done primarily in Article I, Sections 9 and 10. After the Constitution was adopted, the First Congress proposed ten amendments, which became part of the Constitution in 1791. These amendments, now referred to as the Bill of Rights, were designed to impose additional limits on the national government. The final article in the Bill of Rights is the Tenth Amendment, which reserves to the states all powers not assigned to the nation or denied the states. Certain powers granted to the nation are not denied the states and can therefore be exercised by both the nation and the states. These are usually referred to as "concurrent" powers.

When concurrent powers exercised by both the state and national governments conflict, Article VI of the Constitution grants supremacy to the nation. State judges are instructed to invalidate conflicting state laws. If they fail to do this, Article III, Section 2, which extends national judicial power to all cases arising under the Constitution, empowers the federal courts to overrule the state courts. This is where the power of judicial review originates. It is very important to make note of the precise constitutional language in these provisions, because the power and extent of judicial review hinges on the presence or absence of a single word.

The national supremacy clause of Article VI reads as follows: "This Constitution, and the Laws... made in Pursuance thereof; and all Treaties made,... under the Authority of the United States, shall be the supreme Law of the Land; and... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (12) It means simply this: the supreme law of the land includes provisions of the Constitution, laws enacted by Congress that are in accordance with, or "pursuant to," the powers granted by the Constitution--not laws that conflict with the Constitution--and federal treaties.

As we have seen, the judicial power granted in Article III, Section 2 extends to all cases arising under the Constitution, Laws, and Treaties of the United States. (13) This provision means that whenever a constitutional provision, a national law, or a treaty applies to a case before a federal court, the court is authorized to apply that provision, law, or treaty in order to decide the case.

It will be noticed that, although the "Supreme Law of the Land" of Article VI appears to be identical to the Constitution, laws, and treaties to which federal judicial power is extended in Article III, the word "pursuant" is missing from Article III, Section 2. "Pursuant," in this context, means "following from," "in accordance with," or just plain "constitutional." Since only laws pursuant to the Constitution are part of the "Supreme Law of the Land," a federal or state court deciding a case in which a national law applies must determine whether that law is "pursuant" to the Constitution or not. Otherwise, the courts would be forced to apply unconstitutional laws when deciding cases. This would give us legislative supremacy, a doctrine no more intended by the Framers than was judicial supremacy. It is the absence of the word "pursuant" from Article III, Section 2 that extends the judicial power to "unconstitutional" as well as "constitutional" laws, and authorizes both federal and state courts to disregard or invalidate acts of the national government.

In the Judiciary Act of 1789, Section 25, the First Congress explicitly enacted this understanding of the Constitution, authorizing the United States Supreme Court to reverse or affirm any judgment of a state's highest court in which a national law is invalidated or in which a state law is upheld against a federal constitutional challenge. (14) In other words, if a state court refuses to enforce a national law, then the Supreme Court is authorized to reverse or affirm that state court decision. For example, if the Court reverses the state court decision, then it is effectively saying that the national law in question is pursuant to the Constitution. On the other hand, if the federal court affirms the state court decision, then it is effectively saying that the national law in question is not pursuant to the Constitution.

We may draw some important conclusions from this brief survey of constitutional provisions. First, judicial review is fully authorized in the Constitution, but only in a very restrictive form. It has nothing whatsoever to do with policy-making. Rather, constitutional judicial review is merely the power to disregard, or refuse to apply, a law that the court believes not to be "pursuant" to the Constitution when deciding a particular case. Strictly speaking, as Abraham Lincoln said of the notorious Dred Scott decision, the court's decision applies only to the parties in that case--not to anyone else. (15)

Second, the limited form of judicial review established in the Constitution is not an authorization for the national courts to "strike down" or exterminate laws that the judges do not happen to like. Rather, it is a device to prevent state courts from refusing to enforce valid national laws that the state judges do not like. It is not a device to prevent state courts from refusing to enforce invalid national laws that federal judges happen to like.

Finally, James Madison's notes on the Philadelphia Convention reveal that the Framers had a particular understanding of Article III, Section 2. During the discussion of the phrase extending the federal judicial power to cases arising under the Constitution, laws, and treaties of the United States, this power was acknowledged to be limited to "cases of a judiciary nature." (16) Cases of a judiciary nature are cases involving laws directed to the courts themselves--for example, jurisdictional statutes or constitutional provisions directing the courts to perform particular functions in specific ways. (17) This suggests that a third important reason for judicial review is to give the courts a way to protect themselves from efforts by other branches of government to control their activities in ways not authorized by the Constitution.

One example of such an effort took place in the 1790s, when President George Washington asked the Supreme Court for advice on a legal matter. The Justices declined to offer such advice, stating in a letter to Washington that becoming advisors to the executive without a case before the Court would violate Article Ill's provision extending the judicial power only to "cases and controversies." (18) Another example of such an effort occurred a decade later, and it resulted in what is now the most famous case in American constitutional law--the case of Marbury v. Madison, decided in 1803 and now generally regarded as the foundational precedent for judicial review. (19) Unfortunately, many people have also come to believe that judicial supremacy is based on Marbury. However, while it is true that Marbury provides a basis for judicial review--the Court's power to disregard or invalidate laws in a limited range of cases--it provides no support whatsoever for judicial supremacy. To see why this is so, we should take a brief look at the Marbury case.

III. JUDICIAL SUPREMACY AND THE MARBURY MYTH

In its Marbury opinion, the Court (per Chief Justice John Marshall) ruled that Section 13 of the Judiciary Act of 1789, which authorized the Court to issue writs of mandamus in original (trial) jurisdiction to any "persons holding office under the authority of the United States," (20) impermissibly enlarged the Court's jurisdiction beyond the terms of Article III of the Constitution, which restricts the Court's trial jurisdiction to cases involving ambassadors, public ministers, consuls, or states. (21)

In the final pages of his Marbury opinion, Marshall argued that a legislative act in conflict with the Constitution is void, and then carefully restricted the Court's power to invalidate such acts to cases in which the Court is forced to ignore either the Constitution or the statute in order to decide a particular case. (22) The only time this situation can arise is when the constitutional and statutory provisions involved are addressed to the Court itself, as in Marbury. In other words, under Marbury's reasoning, the Court is not entitled to "reach out" and invalidate a legislative act simply because the Court doesn't like it, or even because the Court believes that some other agency of government has done something unconstitutional.

Thus, Marbury-style judicial review is very limited in scope. It is restricted to cases in which Congress has unconstitutionally meddled with the Court's functions. This is probably why courts and legal commentators ignored the case as a precedent for judicial review until the late-nineteenth century. (23) The Court itself didn't notice that Marbury had anything to do with judicial review until 1887, and even then it misread the case as authorizing judicial review of state law--which Marbury had nothing to do with. (24) It was not until 1894 that the Court first cited Marbury as a precedent for judicial review of national law, (25) despite having invalidated some 20 congressional acts by that time. (26) Stop and think for a moment about what this means. The case that is now used as the leading precedent for modern judicial supremacy was not even regarded as an instance of judicial review until 92 years after it was decided!

Of the 88 references to Marbury by Justices of the Supreme Court between 1803 and 1957, only ten refer to the judicial power to invalidate laws, and all ten advance highly restrictive notions of the power, confining it to a narrow range of cases. (27) Nowhere can be found even so much as a suggestion that the Court is the ultimate or exclusive arbiter of all constitutional questions. If Marbury really authorized judicial supremacy, why wouldn't someone on the Court have said so during its first century-and-a-half!

It was in 1958, in the Little Rock School Desegregation Case, that everything changed. (28) There, the Court (per Chief Justice Warren) asserted--falsely and for the first time in its history--that Marbury "declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system." (29) The Court did not stop there, but went even further, suggesting that its own constitutional interpretations were part of the "Supreme Law of the Land." (30) During the decades following Cooper, the number of references to Marbury literally "exploded," (31) as the Court used Marbury to announce its newly discovered power as "ultimate interpreter of the Constitution" to a State Government engaged in legislative apportionment, (32) to a Congress that refused to seat one of its members, (33) and to a President asserting a claim of executive privilege. (34) In Nixon, the Court appeared to go even further, denying that its power to interpret constitutional provisions can be shared with any other branch of government. (35) In sum, the Court's own history shows that judicial supremacy originated neither in the Constitution, nor Marbury, nor the Marshall era. It was established by the Warren Court and developed subsequently by the Burger and Rehnquist Courts. The post-1958 Marbury case is a myth that has been used to enlarge the power of the federal judiciary beyond the role provided by the Founders in the original Constitution.

The story of how this myth was created is an interesting one, and space will not allow telling the whole story here. Briefly summarized, to get judicial supremacy a mythology had to be invented that revised our constitutional history so as to make it appear that judicial supremacy was justified either by the Constitution itself or at least by judicial precedent. This work began in the 1870s, when a group of influential lawyers representing business interests began shopping for a better legal foundation for enhanced federal judicial power than could be found in the Constitution or existing legal precedent. The reason they needed a better foundation was that the true original precedent for judicial supremacy was also the Supreme Court's most embarrassing decision--the Dred Scott case, which allowed the extension of slavery into the American territories in the 1850s and perhaps lit one of the sparks that led to the Civil War. (36)

This group of lawyers, in league with the captains of industry, opposed government regulation of economic activity. Since the state legislatures and Congress were passing regulations designed to lessen the worst effects of the Industrial Revolution, the lawyers and their clients sought to employ the federal courts in an effort to counter the regulations. The problem was that the courts had never exercised such power, and the constitutional basis for it was doubtful at best. So, the only way to get the job done was to find a better precedent for judicial supremacy. But Marbury was too tame and Dred Scott was too notorious. The only thing left was to reinvent Marbury, reinterpreting its language to make it seem like an exercise in judicial supremacy.

An early example of this reinvention may be found in Edward J. Phelps' August 1879 address to the Second Annual Meeting of the American Bar Association. In his address, Phelps praised the Marshall Court for establishing the principle that:
[T]he construction of the [C]onstitution of the United States, for all
purposes for which it requires construction, belongs everywhere and
always to the jurisprudence of the country, and not to its politics,
or even to its statesmanship. The lawyer or the student, who shall set
himself down to follow the labors of that great tribunal from beginning
to end, to learn on what foundation they rested, and what was the guide
through the maze that proved as unerring as the mariner's compass in
the storm, will find it in that salutary principle, set forth with
utmost clearness and unanswerable force in the early case of Marbury
against Madison, followed up from time to time by repeated decisions,
and adopted by all jurists and all courts ever since, that the
[C]onstitution of this country has by an inevitable necessity, reposed
in the judicial department of the government, the sole determination
and construction of the fundamental law of the land. (37)


The error of this assertion is breathtaking. Marshall never said in Marbury or anywhere else that authoritative construction of the Constitution was forbidden to the Legislature (politics) or the Executive (statesmanship); and the final pages of the Marbury opinion suggest quite the opposite. Nor did the Marbury Court declare the judicial branch the sole interpreter of the Constitution. Indeed, as we have already seen, by 1879 (the date of Phelps' statement), the Court had not even mentioned Marbury as a precedent for judicial review--let alone judicial supremacy. (38)

Meanwhile, the opponents of the captains of industry, the "legal progressives" of the time, took the bad history of the capitalist lawyers to heart even while opposing their economic ideology. Most importantly, they accepted the falsified history of Marbury, and even went so far as to lay the blame for the dark side of the Gilded Age on John Marshall, the Supreme Court, and the Founding Fathers. In fact, a prominent group of progressive historians falsified much of the history of the founding era in order to make it appear that the Constitution itself had been little more than an effort of the well-to-do to protect their property from the masses. (39) The political goal of the progressives was to save capitalism from itself by infusing a little socialism into the system. Ultimately, they accomplished this goal, at least in part, by inventing the welfare state.

As for the courts, after the 1930s and the Roosevelt Court-packing scheme, they began to move away from their earlier anti-regulatory posture, adopting instead the ideology of Progressivism --an open-ended social ideology whose main value is "change," presided over by an ever-expanding administrative state. Since the archenemy of progress is tradition, it is not surprising that the courts have spent the last half-century employing judicial supremacy to undercut traditional morality.

Why does all this matter? Why should anyone care whether the Court, when discussing a two-centuries-old precedent, is talking about a real case that was decided in 1803 or about an entirely different case that never really happened? First, during the past half-century, the Court has rendered dozens of politically charged decisions that are dubious as to their foundation in law and history. Most of these decisions are inconceivable absent the enlargement of judicial power that the Marbury Myth supports. Second, the separation of powers has been unbalanced by judicial supremacy. Throughout the first century-and-a-half of our national existence, constitutional interpretation was performed continuously by all three branches of the federal government, by Congress and by the President as much as by the Court. (40)

Yet, nowadays our national legislature seems to have been deadened. For example, in the late-1990s, I was asked to testify at a hearing of the House Judiciary Committee's Subcommittee on the Constitution. The subject of the hearing was Congress' role in constitutional interpretation, and its impetus was the Supreme Court's decision in City of Boerne v. Flores, in which the Court declared a provision of the Religious Freedom Restoration Act ("RFRA") of 1993 unconstitutional. (41) It became abundantly clear during the hearing, much to my astonishment at the time, that many of the representatives on the committee did not really believe that Congress had any role at all in constitutional interpretation! People on both sides of the aisle and issue simply had difficulty getting their minds around the idea that the Supreme Court might not have final, exclusive interpretive authority in all constitutional matters. Many of our elected representatives do not appear to believe they have the competence or authority to deal with constitutional issues because we have been thoroughly brought under the spell of the courts.

Third, American federalism has been substantially eroded. During the ratification struggle over the Constitution, the Antifederalist Brutus warned that the Framers had not gone far enough in their limitation of national power--especially when it came to the Supreme Court. (42) Though Alexander Hamilton had described the Court as the "least dangerous branch," (43) Brutus predicted that the Court would eventually enlarge its own authority and, in the process, enable the national government to expand its power at the expense of the states. (44) It is beyond all question that Brutus was something of a prophet.

Finally, American democracy, itself, has been compromised. In 1992, impatient with the democracy's frequent protests over abortion outside the Supreme Court building, the Court called for an end to the national debate on the issue. (45) Ironically, this debate had been sparked by the Court's own 1973 decision of Roe v. Wade, (46) one of those decisions that is inconceivable absent the Marbury Myth, as is every other exercise of judicial supremacy. Each of these exercises removes an important issue from the democratic process, thereby denying the people--as a people--the power and responsibility for deciding it.

In an incredible fit of judicial hubris that carries judicial supremacy to the limit and turns democracy on its head, the Court (actually three justices) declared in Planned Parenthood of Southeastern Pennsylvania v. Casey, that the belief of the American people in themselves as a people under law "is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals." (47) In other words, we should look to the Court--not to the Constitution--to determine what our true constitutional values are! This astonishing statement, with the Court's cavalier assumption of the People's constitutional authority that is embedded in it, would have been incomprehensible a century ago; but then again, so would have been dozens of judicial decisions made during the past several decades. Indeed, we have been looking to the Court to determine our constitutional values for at least the past half-century and more, during which the Court has, under the influence of progressive ideology, nudged religion and traditional morality out of the public square, licensed the killing of millions of unborn infants and a corresponding multi-million-dollar market in baby body parts, and trashed the institution of traditional marriage, among many other evils too numerous to mention.

For the last several decades, we have stood by and watched as the federal courts appropriated and manipulated the Constitution in such a way as to make it serve the interests of elite public opinion. In 1958, we watched as the Supreme Court declared its own constitutional decisions part of the Supreme Law of the Land, in effect equating its own constitutional decisions with the Constitution itself and amending Article VI of the Constitution by judicial fiat. (48) In 1962 and 1963, we watched as the Court declared public school-sponsored prayer and Bible reading unconstitutional. (49) In 1965, we watched as the Court fabricated an extra-constitutional "right to privacy" (50) and, in 1973, as it included abortion in that right. (51) In 1992, we watched as the Court, while upholding its own fabricated constitutional right to abortion, arrogantly declared that the American people must earn their legitimacy as "a nation of people who aspire to live according to the rule of law" by recognizing that the Court "speak[s] before all others for their constitutional ideals." (52) In 1997, we watched as the Court, for the first time in its history, explicitly denied the authority of the peoples' representatives in Congress to interpret the Constitution with any conclusive effect. (53) In 2000, we watched as the Court outlawed school prayer at high school football games. (54) In 2003, we watched as the Court fabricated a constitutional right to engage in homosexual sodomy--and, by implication, a host of other things. (55) In 2013, we watched as the Court declared Section 3 of the Defense of Marriage Act ("DOMA") unconstitutional. (56) Finally, we watched as a succession of federal courts--and finally the Supreme Court--declared same-sex "marriage" bans in several states unconstitutional. (57)

Yet, neither the Constitution nor Marbury v. Madison, establishes the Supreme Court as the ultimate or exclusive arbiter of all constitutional questions, entitled to issue binding proclamations to other agencies of government or state governments on any constitutional issue whatsoever. (58) So, if Brutus' dire prediction of ever-expanding judicial power was right, it is not because we have followed the Constitution. He was right because we have not followed it. Judicial supremacy is not the result of anything in the Constitution. It is the result of federal judges exercising powers not granted to them in the Constitution and of politicians allowing them (and sometimes encouraging them) to get away with it.

IV. OUR TWO CONSTITUTIONS

Given what has already been said, it should come as no surprise that the movement from the Founders' Constitution to Obergefell was no mere accidental "drift." The movement is marked by two historical episodes, the first of which is found in the late-nineteenth century controversy between conservatives and progressives within the American legal establishment and which produced the Marbury Myth, as we have seen. But the Marbury Myth could not have stood for long on its' own because the judicial role it envisioned was transparently incompatible with the constitutional framework the Founders established. The constitutional structure itself had to be reimagined. This was done in the early twentieth century by a group of influential intellectuals bent on undermining the most important principle of the American Revolution: the principle of inalienable rights with which human beings are "endowed by their Creator." (59) These men, among them some of the founders of modern academic political science, (60) at least one American president, (61) and the dean of American education, (62) believed, with the English philosopher Jeremy Bentham, that the idea of natural rights amounted to little more than "nonsense upon stilts" and was a hindrance to good government. (63)

In the process of attacking the Jeffersonian notion of rights enshrined in the Declaration of Independence, these men also attacked the Constitution, believing it to be a hindrance to good government. Rather than explicitly calling for a new constitution, which they knew to be a futile effort, they sought replacement of the Founders' Constitution by a kind of subterfuge that would retain the letter of the original while completely transforming its character. The success of this project has given us what is, in reality, a second constitution, nowadays usually referred to as the "living constitution." Just as the judicial supremacy embodied in the Marbury Myth "lives" only by maintaining the fiction of its rootedness in ordinary judicial review, this second constitution "lives" only by maintaining the fiction of its rootedness in the original Constitution. According to this fiction, the living constitution is merely an interpretive, constructive extension of the Founders' Constitution, an extension said to be required by the need to "keep up with the times."

But this pretended continuity is an appearance, not a reality. In essence, it is a lie that was initially perpetrated and has since been sustained by men who disavow the idea of an essential human nature, substituting instead the idea of an infinitely malleable humanity upon which they want to do the malleating. It is a historical fiction of the type defined by Bentham as "a willful falsehood, having for its object the stealing of legislative power, by and for hands, which could not, or durst not, openly claim it,--and but for the delusion thus produced, could not exercise it." (64) This fiction allows presidents to govern by decree and allows courts to create new rights, to marginalize religion, and to scuttle longstanding legal traditions while the people's representatives in Congress sit by watching and planning for the next election.

The watershed moment in the progressive attack on the Constitution is found in a speech Woodrow Wilson gave during his successful presidential run in 1912. (65) In this speech, Wilson called for a revolutionary constitutional transformation, albeit couched in modest language. (66) Like most modern progressives, Wilson swore fidelity to the Constitution, but it was not the Constitution of 1787 that claimed his loyalty. (67) For Wilson, the Constitution is--or should be--a malleable instrument that is subject to manipulation by "progressive" policy makers to achieve the social ends they desire. (68) Notwithstanding the fictitious continuity, it is an entirely different constitution because it develops in an entirely different way, and the most important thing about a constitution is its mode of development.

The Founders' Constitution develops according to a carefully constructed constitutional amendment process that is designed to ensure a wide consensus in support of any proposed constitutional change. (69) This process is spelled out in Article V, and requires extensive participation of both Houses of Congress, as well as the legislatures or special conventions in the states. (70) This means that the Founders regarded constitutional development as a profoundly democratic process, involving more--and a wider range of--decision makers than are required for ordinary legislative, executive, administrative, or judicial acts.

The Founders' Constitution also established a balanced governmental framework in which no branch of government can claim ultimate authority to determine the constitutional power of another, (71) a fact of which Wilson and his allies were keenly aware and greatly disapproved. (72) In a book that Wilson wrote and published a few years before his presidential run, he acknowledged that the Framers "constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and allow to no single part or organ of it a dominating force," but then promptly concluded that "no government can be successfully conducted upon so mechanical a theory." (73) Adoption of Wilson's constitutional proposal would have the effect of circumventing both the Article V amendment process and the checks and balances system. Wilson consummates his proposal with the following statement: "All that progressives ask or desire is permission--in an era when 'development,' 'evolution,' is the scientific word--to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine." (74) Thus, begins the career of the "living constitution."

As a result of their dissatisfaction with the original constitution, Wilson and other progressives launched, under the guise of "reform," a truly revolutionary constitutional transformation. Rather than trying to scuttle the Founders' Constitution altogether, the progressives proposed its transformation via reinterpretation--spearheaded by the action of courts and administrative agencies. This reinterpretation was designed to free political actors in the judicial and executive branches from the shackles placed upon them by the mechanics of the old constitution. The Founders' system was much too fragmented, cumbersome, and inefficient for Wilson, who wanted to enlarge executive power by unleashing an army of bureaucrats in the growing administrative state of his time and of regulators, who would be appointed initially by Wilson himself or his subordinates and who would operate behind the scenes, essentially unchecked, to rebuild American society in their image. (75) In the concluding portion of his 1912 speech, Wilson suggested the image he had in mind by describing his "rebuilt" American society as a "great building... where men can live as a single community, cooperative as in a perfected, coordinated beehive." (76)

But the image is distorted, as all images are. Constitutions should not be interpreted according to Darwinian principles because human societies are not "organisms" at all. Even if beehives and anthills are "organisms" in some sense, human beings are not like bees or ants. We have free will and are, therefore, naturally self-governing. In the words of Rousseau, we are "forced to be free." (77) The Founders' Constitution preserves self-government at the most basic level by invoking democratic processes at both state and national levels before constitutional change can be effected. It also protects the Constitution itself from unwarranted, "informal" alteration by restricting the power of each major division of government from encroaching on the power of another. Conversely, Wilson's "living constitution" would allow major constitutional change via "interpretations" handed down by largely unaccountable boards, commissions, and courts staffed by elites--who purport to know best what is good for the rest of us.

Thus, it is fair to say that we are now living under a very different constitution than the one the Framers devised, and we should stop pretending otherwise. The Article V amendment process has been effectively scuttled, replaced by a Court functioning as a constitutional revision council. (78) The checks and balances system has been eroded to the point at which the original power structure has been altered beyond recognition. Instead of the powerful Congress, the strong but carefully checked executive, and the "least dangerous branch" envisioned by the Framers, we now have a weak--bordering on dysfunctional--Congress, a powerful and relatively unchecked executive, and a "super-duper" Supreme Court with final, ultimate, and exclusive authority to determine the scope and range of power possessed by the other branches of government and the states. In short, the branch of government furthest removed from the democratic process--the Court--now holds ultimate constitutional authority, and the branch most closely tied to the democracy--Congress--holds least. It is an elitist constitution. From the standpoint of democracy, it is "upside-down." That is why it is appropriate to refer to the transition from the Founders' Constitution to the living constitution as revolutionary rather than reformative.

There is also a wider sense in which the new constitution can be seen as revolutionary. Constitutions are more than just the institutions and processes they establish. They spring from philosophical foundations, worldviews that must be understood if these institutions and processes are to be comprehensible. For instance, it makes no sense to establish a lengthy and cumbersome amendment process, as the Framers did in Article V of the Constitution, unless you want to ensure that major constitutional changes can be made only by an extraordinarily wide consensus of public opinion. In other words, the more "foundational" or "constitutional" the change, the more "democratic" the decision process needs to be. For another example, the checks and balances system, with its attendant inefficiencies, is incomprehensible apart from a view of human nature as essentially corruptible. If we believe, with Lord Acton and the American Founders, that power always tends to corrupt and that sin is always with us, then we should decline to join the progressives in their effort to empower an incorruptible cadre of public officials who will govern the rest of us in our best interest.

Although the amendment process and the checks and balances system were the primary targets of the progressive assault on the old constitution, the examples I have mentioned in this essay suggest that the issue was not a mere structural quibble. Those who support the living constitution have always done so because they desire particular policy outcomes that would be either impossible, or at least very difficult, to obtain under the Founders' Constitution. This is because their worldview is at odds with that of the Framers. The underlying reason for the progressive assault on the Constitution was, and still is, that the proponents of the living constitution do not really believe in the values and principles that formed the basis of the original constitution. They do not believe in American or human exceptionalism. They do not subscribe to the natural law/natural rights theories of the Framers. Nor do they believe in limited government, republicanism, or democracy in the sense subscribed to by the Framers. They do not believe with Jefferson that all men are created equal, and most do not really believe that men are created at all. They do not believe in absolutes. They do not believe that religion has a place in public life or that faith has a role in reason. They do not believe in the sanctity of human life or the traditional human family. Many do not believe in the sanctity of anything.

Instead, today's progressive political elites subscribe to a scientific, relativistic, secular public ideology. The living constitution provides the framework for imposition of this ideology. It is the conduit through which a whole world view contrary to that of the Framers has been--and still is being--impressed upon public policy in the United States. Angelo Codevilla frankly describes several facets of this worldview: "America now divides ever more sharply into two classes, the smaller of which holds the commanding heights of government, from which it disposes in ever greater detail of America's economic energies, from which it ordains new ways of living as if it had the right to do so, and from which it asserts that that right is based on the majority class' stupidity, racism, and violent tendencies." (79) Codevilla adds that "it has become conventional wisdom among our Ruling Class that they may transcend the Constitution while pretending allegiance to it." (80)

V. CONSTITUTIONAL RECOVERY

No doubt limited government is frustrating at times, especially for presidents, bureaucrats, judges, and other elites who are convinced they know what is best for society. And, such impatience with the Founders' Constitution is still alive and well in the White House today. While an Illinois senator in 2001, Barack Obama expressed this impatience in a radio interview when he criticized the Warren Court for not breaking free "from the essential constraints that were placed by the founding fathers in the Constitution." (81)

It is time to give up the elitist "living" constitutionalism of Wilson, Dewey, Goodnow, and Obama and beat a fast retreat to the Founders, whose Constitution still stands waiting for our return, despite the beating it has taken from the progressives and their allies during the past century. I believe that this retreat can be made, because, as Chesterton once said, "truth exists whether we like it or not, and... it is for us to accommodate ourselves to it." (82)

That said, recovering the Founders' Constitution will not be easy. It will require wide public exposure of the progressive deception at the heart of the living constitution as the subterfuge that it really is. It will require wide public recognition that the politicians, administrators, and judges that claim the living constitution as authority for their acts do not really have the authority they claim and that their actions--insofar as they depend on the living constitution for their authority--are outside the law. The American citizenry must recover and nourish something of the spirit of Mary Ellen Bork's comment some years ago that the Justices of the Supreme Court were behaving like a "band of outlaws". (83) What, for instance, would the average American think if this plain truth were put before her: that she was being governed, not according to the Constitution that she was taught about in school but rather according to an altogether different constitution --one put into effect surreptitiously by a succession of political elites who did (and do) not believe in the key principles of the Declaration of Independence or the most important features of the Constitution? Moreover, that subterfuge was required because it was necessary to trick the American people into believing that the new, "living" constitution was merely a natural outgrowth of the old, Founders' Constitution in order to make it appear legitimate. How would the American people react if this knowledge were put plainly before them? Perhaps I am naive, but I am inclined to think they would not approve--which was and is, of course, the whole reason for the constitutional subterfuge in the first place.

If we are to accomplish the restoration of the Founders' Constitution, one of the first steps must be the simple realization that the Constitution does not authorize judicial supremacy--the doctrine that the Supreme Court is the exclusive, ultimate, and final authority on all constitutional issues. Once we determine that the national judiciary has overstepped its constitutional limits, as it did in the Dred Scott case, it is a short step to the approach Abraham Lincoln took in his response to that decision: disavowal of its binding effect on any, save the parties to specific lawsuits, and a frank acknowledgment of the truth uttered in his First Inaugural Address, 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 instant they are made, in ordinary litigation between parties, in personal actions, 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." (84)

In at least one respect, our situation may be even worse than Lincoln's. Whereas Lincoln's problem was one specific decision (albeit with obviously momentous consequences), our problem is with a long train of decisions by an entire branch of the national government that has been allowed to run roughshod over long-settled constitutional and legal traditions for several decades, deadening our democracy by lulling large segments of the population and the government into the false belief that the Constitution is none of the People's business.

(1) Professor Mendelson is not the first person to utter such a statement. Abraham Kuyper, in his Lectures on Calvinism, declared: "No man has the right to rule over another man, otherwise such a right necessarily, and immediately becomes the right of the strongest.... Nor can a group of men, by contract, from their own right, compel you to obey a fellow-man.... Authority over men cannot arise from men." ABRAHAM KUYPER, LECTURES ON CALVINISM 69 (Hendrickson Publishers 2008) (1898).

(2) JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT 101-48 (Maurice Cranston trans., Penguin Books 1968) (1762).

(3) JOHN EMERICH EDWARD ACTON, Letter I, in ACTON-CREIGHTON CORRESPONDENCE 9 (London, MacMillan & Co.) (1887), http://oll.libertyfund.org/titles/2254 ("Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or the certainty of corruption by authority. There is no worse heresy than that the office sanctifies the holder of it.").

(4) See AUGUSTINE, POLITICAL WRITINGS (E. L. Fortin ed., M. W. Tkacz & D. Kries trans., Hackett Publ'g Co. 1994)(c. 354-430 B.C.E.).

(5) Matthew 23:11-12 (Aramaic Bible in Plain English).

(6) See Robert L. Clinton, The Spirit of Democracy & the Threat of Elitism: A Paradox that Cannot be Overcome 81 NEW OXFORD REV., April 2014, at 30, for a more thorough discussion of this point.

(7) See Obergefell v. Hodges, 135 S. Ct. 2584, 2607-08 (2015).

(8) Id. at 2626 (Roberts, C.J., dissenting).

(9) U.S. CONST. art. I, [section] 8; U.S. CONST. art. II, [section][section] 2-3.

(10) U.S. CONST. art. III, [section] 2.

(11) Id. The precise language is: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." Id.

(12) U.S. CONST. art. VI. cl. 2.

(13) U.S. CONST, art. III, [section] 2.

(14) Sec 1 Stat. 73, 85 (1789).

(15) Abraham Lincoln, Speech on the Dred Scott Decision (June 26, 1857).

(16) See MAX FARRAND, 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, 430 (Yale University Press, 1911).

(17) See ROBERT LOWRY CLINTON, MARBURY V. MADISON AND JUDICIAL REVIEW (University Press of Kansas, 1989).

(18) Id. at 76.

(19) 5 U.S. 137(1803).

(20) 1 Stat. 73, 81 (1789); see Marbury, 5 U.S. at 148; see also, CLINTON, supra note 17, at 82-88 (containing a fuller discussion of the Judiciary Act of 1789 issue in the Marbury opinion).

(21) U.S. CONST. art. 2, [section] 2, cl. 2; see Marbury, 5 U.S. 137, 148 (1803).

(22) Marbury 5 U.S. at 177-78; See also CLINTON, supra note 17, at 97-99.

(23) See CLINTON, supra note 17, Ch. 6-7.

(24) See, e.g., Mugler v. Kansas, 123 U.S. 623, 661 (1887); See also CLINTON, supra note 17, at 120.

(25) Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 469 (1895); see also CLINTON, supra note 17, at 121.

(26) See CLINTON, supra note 17, at 119-20, 269-70 nn.32-39.

(27) See generally CLINTON, supra note 17, at 122-23.

(28) Cooper v. Aaron, 358 U.S. 1 (1958).

(29) Id. at 18.

(30) See id.

(31) Keith E. Whittington, Judicial Supremacy in the Twentieth Century, Ch. 6 in MARBURY V. MADISON: DOCUMENTS AND COMMENTARY, 101, 103-04 (Mark A. Graber and Michael Perhac eds., CQ Press 2002) ; see also CLINTON, supra note 17, at 122-23.

(32) See Baker v. Carr, 369 U.S. 186, 211 (1962).

(33) Powell v. McCormack, 395 U.S. 486, 521-22 (1969).

(34) United States v. Nixon, 418 U.S. 683, 704-05 (1974) (citing Marbury, 5 U.S. at 177).

(35) See Nixon, 418 U.S. at 704 (the power to determine the meaning of constitutional provisions "can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power"); see also Whittington, supra note 31, at 104.

(36) Dred Scott v. Sanford, 60 U.S. 393 (1856).

(37) Edward J. Phelps, Annual Address, 2 Annu. Rep. ABA 173, 182 (1879).

(38) See Pollock, 157 U.S. at 554; Mugler, 123 U.S. at 661; see also CLINTON, supra note 17, at 120-21.

(39) See CLINTON, supra note 17, at 188-91 (providing a more detailed discussion of several of the most prominent progressive historians).

(40) See CLINTON, supra note 17, at 112-15.

(41) 521 U.S. 507(1997).

(42) Brutus, Essays of Brutus No. 11, in THE ESSENTIAL FEDERALIST AND ANTI-FEDERALIST PAPERS 81, 82-83 (David Wootton ed., 2003).

(43) THE FEDERALIST No. 78 (Alexander Hamilton).

(44) Brutus, supra note 42, at 84.

(45) Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 867 (1992).

(46) 410 U.S. 113(1973).

(47) 505 U.S. at 868.

(48) Cooper, 358 U.S. at 1.

(49) Abington v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962).

(50) Griswold v. Connecticut, 381 U.S. 479 (1965).

(51) Roe, 410 U.S. at 113.

(52) Casey, 505 U.S. at 868.

(51) Flores, 521 U.S. at 507.

(54) Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

(55) Lawrence v. Texas, 539 U.S. 558 (2003).

(56) United States v. Windsor, 133 S. Ct. 2675 (2013).

(57) Obergefell, 135 S. Ct. at 2607-08.

(58) See 5 U.S. at 137.

(59) THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

(60) Frank Goodnow, president of Johns Hopkins University and the first president of the American Political Science Association, in an address given at Brown University in 1916, contrasts the development of a "private rights philosophy" in Europe with its development in the United States during the period following the two revolutions in those nations. FRANK GOODNOW, The American Conception of Liberty, in THE AMERICAN CONCEPTION OF LIBERTY AND GOVERNMENT 9, 9-31 (1916), reprinted in THE U.S. CONSTITUTION: A READER 629, 629-634 (Hillsdale College Politics Faculty ed., 2012). The document that set in motion the European development was the Declaration of the Rights of Man and of the Citizen "promulgated in France on the eve of the Revolution." Id. Goodnow states with approval that "almost every clause of the Declaration refers to rights under the law rather than to rights which were natural to and inherent in man." Id. Conversely, Goodnow deplores the fact that, unlike in Europe, in America individual rights were regarded as granted by a Creator and grounded in natural rather than positive law, suggesting that the "unadulterated individualism" that resulted from this deplorable fact might have been the outgrowth of a somewhat uncivilized social condition in America during previous times. Id.

(61) Woodrow Wilson, sixth president of the American Political Science Association, thirteenth president of Princeton University and twenty-eighth president of the United States, claims that "Men as communities are supreme over men as individuals. Limits of wisdom and convenience to the public control there may be: limits of principle there are, upon strict analysis, none." WOODROW WILSON, Socialism and Democracy, in 5 THE PAPERS OF WOODROW WILSON 559, 559-562 (Arthur Link, ed., 1968), reprinted in THE U.S. CONSTITUTION: A READER 645, 645-648 (Hillsdale College Politics Faculty ed., 2012).

(62) John Dewey, dean of American progressive educators, pontificates that "Natural rights and natural liberties exist only in the kingdom of mythological social zoology." JOHN DEWEY, Liberalism and Social Action, in 11 THE PAPERS OF JOHN DEWEY: THE LATER WORKS, 1925-1953, 6, 6-40 (Jo Ann Boydston, ed., 1987), reprinted in THE U.S. CONSTITUTION: A READER 619, 619-628 (Hillsdale College Politics Faculty ed., 2012).

(63) JEREMY BENTHAM, RIGHTS, REPRESENTATION, AND REFORM: NONSENSE UPON STILTS AND OTHER WRITINGS ON THE FRENCH REVOLUTION 330 (Philip Schofield, Catherine Pease-Watkin, & Cyprian Blamires eds., 2002).

(64) See JEREMY BENTHAM, A FRAGMENT ON GOVERNMENT 117 (J.H. Burns & H.L.A. Hart eds., 1988); see also LON L. FULLER, LEGAL FICTIONS 57 (1967).

(65) See WOODROW WILSON, What is Progress?, in THE NEW FREEDOM 33, 33-54 (1913), reprinted in THE U.S. CONSTITUTION: A READER 635, 635-43 (Hillsdale College Politics Faculty ed., 2012).

(66) Id.

(67) Id.

(68) Id at 641.

(69) See U.S. CONST. art. V.

(70) Id.

(71) James Madison spelled this out clearly on June 29, 1789, during congressional debate on the president's removal power, flatly denying the power of any branch of the national government (including the judicial) to "determine the limits of the constitutional division of power": "I acknowledge, in the ordinary course of Government, that the exposition of the laws and Constitution devolves upon the judiciary. But, I beg to know upon what principle it can be contended, that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments? The Constitution is the charter of the people to the Government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the Constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.....There is not one government on the face of the earth, so far as I recollect, there is not one in the United States, in which provision is made for a particular authority to determine the limits of the Constitutional division of power between the branches of the Government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent." JAMES MADISON, Comments on the Removal Power of the President, in 12 THE PAPERS OF JAMES MADISON 238 (Charles F. Hobson & Robert A. Rutland eds., 1979).

(72) See WOODROW WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 54 (1908).

(73) Id.

(74) WILSON, supra note 72, at 641.

(75) Id.

(76) Id. at 642.

(77) ROUSSEAU, supra note 2, at 8-9.

(78) Ironically, such a council, to be composed of a combination of executive and judicial officials, was advanced at the Philadelphia Convention by Madison, James Wilson, and Edmund Randolph but was rejected by the Convention. The irony is that the Madison-Wilson-Randolph Council would have been a more "democratic" one than the strictly judicial council that we now have. See CLINTON, supra note 17, at 57-60.

(79) ANGELO CODEVILLA, THE RULING CLASS: How THEY CORRUPTED AMERICA AND WHAT WE CAN Do ABOUT IT 42 (2010).

(80) Id.

(81) Joshua Dunn, The Spirit is Partially Willing: The Legal Realism and Half-Hearted Minimalism of President Obama, in THE OBAMA PRESIDENCY IN THE CONSTITUTIONAL ORDER: A FIRST LOOK 91, 99 (Carol McNamara & Melanie M. Marlowe eds., 2011).

(82) JOSEPH PEARCE, THE QUEST FOR SHAKESPEARE 20 (2008) (quoting G.K. Chesterton, Opinion, ILLUSTRATED LONDON NEWS, June 18, 1907).

(83) Robert H. Bork, Our Judicial Oligarchy, 67 FIRST THINGS 21, 24 (1996).

(84) Abraham Lincoln, First Inaugural Address (March 4, 1861), in GREAT SPEECHES: ABRAHAM LINCOLN 58 (Stanley Appelbaum eds., 1991).
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Title Annotation:Symposium: The Role of the Judge in the Anglo-American Tradition
Author:Clinton, Robert Lowry
Publication:Faulkner Law Review
Date:Sep 22, 2016
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