by Timothy B. Lewis of the Constitutional Freedom Foundation  -  5/05/04

Jeffersonian Prognostications

Let us begin this article with some riveting observations and prognostications from Thomas Jefferson:

“Our government is now taking so steady a course as to show by what road it will pass to destruction, to-wit: by consolidation first, and then corruption, its necessary consequence.  The engine of consolidation will be the federal judiciary; the two other branches, the corrupting and corrupted instruments.” ^[1]
“It has long, however, been my opinion, and I have never shrunk from its expression,... that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body, (for impeachment is scarcely a scare-crow,) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one.  To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.” ^[2]

[In other words, he predicted that the U.S. Supreme Court would destroy the idea of vertical checks and balances (i.e. federalism) which Jefferson thought to be a critical feature of our federal structure in preserving liberty.  As one considers the present day political impotency of the states relative to the federal government, one can see that he was right.]

"At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government.  Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance.  In truth, man is not made to be trusted for life, if secured against all liability to account." ^[3] (Emphasis added)     

"...[I]t would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights....confidence is everywhere the parent of despotism [–] free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obligated to trust with power....our Constitution has accordingly fixed the limits to which, and no further, our confidence may go....In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." ^[4] (Emphasis added)

Federalist #78 – The Proper Role of Judges

Perhaps one of the most misunderstood aspects of constitutional law is the proper role of judges in our constitutional system.  As mentioned in an earlier article, Alexander Hamilton is credited with an expansionist view of delegated federal authority under the Constitution.  However, one gets the exact opposite impression in reading those parts of the Federalist Papers which are ascribed to him.  Hamilton’s Federalist #78 is very instructive as to what we should expect from the federal judiciary.  I will excerpt several paragraphs of it with personal comments and/or supporting quotes interspersed throughout in brackets.

Paragraph 6: The purpose of the judiciary is “to secure a steady, upright, and impartial administration of the laws.”

[“Steadiness” would be impossible if they exercise their own wills contrary to what is said below.]

Paragraph 7: “The judiciary...has...no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.  It may truly be said to have neither FORCE nor WILL, but merely judgment.”

[The Executive Branch has the force, Congress the will and the Judiciary, judgment.]

Paragraph 9: The duty of the courts of justice “must be to declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all the reservations of particular rights or privileges would amount to nothing.” 

[In other words, the concept of a limited national government would fail and the national government would eventually usurp all power unto itself which seems to be exactly what we have seen over the past seventy years or so.  There have been a few recent cases which show potential prospects for reversing this trend, but the various case holdings that have done this were usually only bare-majority five-to-four decisions which are very tenuous.  Depending on who dies or retires next on the court, and who that person’s replacement is, may make a big difference in how the future unfolds in this regard.]

Paragraph 11: “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.  No legislative act, therefore, contrary to the Constitution can be valid.”

[And who has the authority to say so?  From paragraphs 9, 12, 16 & 18, the courts.]

Paragraph 12: “...the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”

[“The judicial power was defined in broad terms but nowhere was it stated that the United States courts should have the power to pass on the constitutionality of laws.  But the debates of the convention indicate that leading delegates, such as King, Gerry, Wilson, Gouverneur Morris, Madison, Mason, and Martin, expected this power to be exercised by the courts nevertheless.” ^[5]   And, as we can clearly see here, so did Hamilton.

[Joseph Story wrote one of the first treatises on the Constitution.  He was a Supreme Court Justice for thirty four years along side John Marshall.  So prominent a legal scholar was Mr. Story that he was given the appellation “the American Blackstone.”  In asserting that the Supreme Court was the final arbiter of constitutional matters, he said:

“Let us examine the grounds, on which this doctrine is maintained.  The constitution declares, (Art. 6,) that ‘This constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties, Etc. shall be the supreme law of the land.’  It also declares, (Art. 3,) that ‘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, and which shall be made under their authority.’  If further declares, (Art. 3,) that the judicial power of the United States ‘shall be vested in one Supreme Court, and in such inferior courts, as the congress may, from time to time, ordain and establish.’  Here then, we have express, and determinate provisions upon the very subject.  Nothing is imperfect, and nothing is left to implication.  The constitution is the supreme law; the judicial power extends to all cases arising in law and equity under it; and the courts of the United States are, and, in the last resort, the Supreme Court of the United States is, to be vested with this judicial power.” ^[6]

[In further support of his position, he explained that the same pattern had been recognized under the Articles of Confederation which preceded the Constitution, and that the state judicial formats before the Constitution also recognized finality of interpretation in their respective state supreme courts.  Then he said:

“Under such circumstances, is it not most natural to presume, that the same rule was intended to be applied to the constitution of the United States?  And when we find, that the judicial department of the United States is actually entrusted with a like power, is it not an irresistible presumption, that it had the same object, and was to have the same universally conclusive effect?....

“That this view of the constitution was taken by its framers and friends, and was submitted to the people before its adoption, is positively certain.  The same doctrine was constantly avowed in the state conventions, called to ratify the constitution.  With some persons it formed a strong objection to the constitution; with others it was deemed vital to its existence and value.  So, that it is indisputable, that the constitution was adopted under a full knowledge of this exposition of the grant of power to the judicial department.

“This is not all.  The constitution has now been in full operation more than forty years; and during this period the Supreme Court has constantly exercised this power of final interpretation....Their decisions upon these grave questions have never been repudiated, or impaired by congress.  No state has ever deliberately, or forcibly resisted the execution of the judgments founded upon them....During the same period, eleven states have been admitted into the Union, under a full persuasion, that the same power would be exerted over them....for forty years three fourths of all the states composing the Union have expressly assented to, or silently approved, this construction of the constitution, and have resisted every effort to restrict, or alter it.”” ^[7]]

Paragraph 13: “The interpretation of the laws is the proper and peculiar province of the courts.  A constitution is, in fact, and must be regarded by the judges, as a fundamental law.”[i.e. Binding on all -- even themselves – see next paragraph.]   “[And when there is a conflict between the Constitution and anything else,] the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” [The distinction between “the intention of the people” and “the intention of their agents” is clarified in the next paragraph.

Paragraph 14 indicates that the “will of the people” can be considered in two respects, namely (1) the will of the people who originally adopted the Constitution and (2) any subsequent contrary will of the people expressed by their agents through legislative acts.  He said that the former is more fundamental than the latter and should prevail.  He also said that this original will is not only superior to the legislature, but also the judiciary – inferring that when the court “interprets” the Constitution contrary to this original will of the people, the judges are violating their public trust.

Paragraph 16: “...whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”

Paragraph 17: “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature....The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.  The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.”

[In Federalist #78 & 81, Hamilton argued for judicial independence since it was expected that the judiciary’s role would not be to exercise its own will like that of the legislature, but rather, would only exercise judgment in impartially applying the law as per the intents (or wills) of the legislature.  Of course, consistent with his prior discourse, this presupposes that the legislature is operating within the bounds of its delegated authority.

[If the judiciary is going to exercise its own will rather than enforce somebody else’s, then let it be a part of the legislature and be subject to the normal democratic forces that they face.  In other words, let them be subject to the regular election cycles that the legislators face and thereby face the potential political wrath of angry voters when they overstep their bounds.

[The Supreme Court agreed with Hamilton on this principle early on when it said:

“Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.” ^[8]]

Paragraph 18: “If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”

[The clear implication of this statement is that if they are not willing to serve this indispensable role of keeping the legislature within the set bounds of its delegated authority, then we should do away with the concept of life tenure for the judiciary.]

Paragraph 19: “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals...”

Paragraph 20: “Until the people have, by some solemn and authoritative act, annulled or changed the established form [i.e. the Constitution and the form of government it created], it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.”

[From the totality of this chapter #78, and all others in the Federalist Papers taken together, it is inconceivable that the founders would have sanctioned the possibility of the Constitution being changed under the guise of “interpretation” by the judiciary.  The judiciary had no license to turn the Constitution into what has euphemistically been called a “living document” — they were not installed for the purpose of changing what was supposed to be an immutable legal base for our republic.  If changes were to occur, they were only to occur through the formal amendment process requiring strict super-majorities at both the national and state levels.  Most certainly, such changes were not to be allowed at the hands of only five people creating a majority block on the Supreme Court.]

Paragraph 24: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them...”

[In legal parlance this is called stare decisis.  In this regard, Joseph Story commented:

“...Ours is emphatically a government of laws, and not of men; and judicial decisions of the highest tribunal, by the known course of the common law, are considered, as establishing the true construction of the laws, which are brought into controversy before it.  The case is not alone considered as decided and settled; but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature.  This is the constant practice under our whole system of jurisprudence.  Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been considered, as the great security of our rights, our liberties, and our property.  It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice, or will of particular judges.  A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.

“This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the constitution.  It was recognized, and enforced in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere discretion, and to the abandonment of all the just checks upon judicial authority.” ^[9]

[So he viewed stare decisis as a type of check on the judiciary.]

The Judiciary’s Departure from Those Principles

In discussing our departure from these principles, David Lowenthal in his book, No Liberty For License, states:

“For it is what we want--not what reasoning from a common and objective constitutional document requires, that has become the new first principle of judicial interpretation....

“[This] novel principle...is an invitation to chaos and the end of the American constitutional system.  For if the judges, in the constitutional opinions they render, are merely stating what they think they themselves or the country want, they have become makers of policy and ought to be elected for limited terms, like all other policy-makers, to insure their accountability to the will of the people.  The only alternative...held that a judge, by the very definition of his function, takes a law he did not make and applies it to particular situations in the manner the lawmaker intended and indicated by the wording of the law....This view allows for reasoning about what the founders intended, about their meaning, about their political philosophy, about the intrinsic needs of republican government--with all the difficulties this often entails--but without ever surrendering the principle that it is their meaning, rather than our ‘wants,’ that must bind judges....

“The judge is the intelligent mouthpiece of the original legislator, nothing more....[H]e is not the savior of society, armed with a discretionary prerogative, unbound by law, to alter even the supreme law of the land as he wishes.   According to this understanding, the popular notion of the Constitution as a supreme, overarching, and fixed basic law may be preserved; interpretations of the law have a common objective ground that is in principle capable of being discovered; the rule of precedent may serve as a saving lifeline between the founders’ intentions and all later generations.  Absent this understanding, the constitutional links binding the country together are bound to dissolve, with interpretations of law becoming variable, chaotic, idiosyncratic, overbearing, and tyrannical--or merely subject to fashion and temporary popular whim.

“The unspoken premise of the new libertarian philosophy is that it constitutes an intellectual underpinning for liberal democracy vastly superior to that of the founders and framers.  This view is rarely stated by sitting judges in their written opinions: they know admitting publicly to changing the Constitution through interpretation would arouse a public furor.” ^[10]

Constitutional Principles Were Supposed To Be Fundamental and Permanent  

Chief Justice John Marshall’s words in Marbury v. Madison are instructive here:

“That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected.  The exercise of this original right [i.e. the creation and adoption of the Constitution itself] is a very great exertion; nor can it, nor ought it to be frequently repeated.  The principles, therefore, so established, are deemed fundamental.  And as the authority, from which they proceed [i.e. the people], is supreme, and can seldom act, they are designed to be permanent.” ^[11] (emphasis added.)

In other words, all authority regarding the Constitution emanates from the people themselves from the bottom-up and the principles contained in the Constitution are deemed to be fundamental and permanent.  Why? – Because (1) the people, through great exertion, have set forth their desired form of government – and the limits applying thereto – under the Constitution and (2) the formal democratic amendment process set forth in the Constitution itself is so difficult that it cannot occur very often.  This implies that nobody – and this includes the judiciary – is allowed to tinker with those principles other than the people themselves as a collective and democratic super-majoritarian whole.

In George Washington’s farewell address, he admonished us that the Constitution must be “sacredly maintained.”   Said he:

“The basis of our political systems is the right of the people to make and to alter their constitutions of government.  But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”(emphasis added) 

“It is important…that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another.  The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism….If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.  But let there be no change by usurpation; though this may in one instance be the instrument of good, it is the customary weapon by which free governments are destroyed.” ^[12] (emphasis added)

Judges should try to interpret the document in a manner that is consistent with the intents of the drafters.  Otherwise from generation to generation the meaning will change radically when it was supposed to be relatively immutable.  If we don't try to tie our interpretation to the original intent, as best we can decipher it, then we will be governed by a "rule of men" rather than a "rule of law".  The document will simply mean whatever a majority of 5 people on the Supreme Court says it means.  Rather than it being a "living document" it will become a "dead document" since the clear language and intents represented therein will be freely changeable at the fancy of 5 people.

If we allow this to happen, then we should stop the charade and stop using the words "constitutional" and "unconstitutional" and replace them with more accurate descriptors like "Supreme Court-able" and "Un-Supreme Court-able."

How Should The Constitution Be Interpreted?

Jefferson warned:

"Our peculiar security is in possession of a written Constitution.  Let us not make it a blank paper by construction [interpretation]." ^[13]

"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed." ^[14]

Lincoln said:

"The principles of Jefferson are the definitions and axioms of free society.  And yet they are denied, and evaded, with no small show of success....Soberly, it is now no child's play to save the principles of Jefferson from total overthrow in this nation." ^[15]

William Blackstone:

 “For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary according to his private sentiments: he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.” ^[16]

Gary McDowell said:

"Interpretation is no easy business....'The use of words,' James Madison once noted 'is to express ideas....But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many [words] equivocally denoting different ideas. Hence it must happen, that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which they are delivered.'  As a result, it is essential to sound government that interpretation of the law not be merely the arbitrary personal predilections of the judge.  In order to rise above being arbitrary, legal interpretation must have some moorings outside the judge himself.  To allow a judge to make the words 'mean nothing at all, or what he pleases' [as John Lock criticized judges for doing], would be in effect to abandon interpretation properly understood.  We would have judgments but we would no longer have law in any meaningful sense.  The Anglo-American legal tradition has always sought the necessary mooring of interpretation in the intention that originally underlay the law in question." ^[17]

In his treatise on the Constitution published in the early years of our republic, Joseph Story dedicated a whole chapter to the Rules of Interpretation regarding the Constitution.  Several excerpts from that chapter follow:

“The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties [who drafted them.]” ^[18]

“...the constitution of the United States is to receive as favorable a construction, as those of the states.  Neither is to be construed alone; but each with reference to the other.  Each belongs to the same system of government; each is limited in its powers; and within the scope of its powers each is supreme.  Each, by the theory of our government, is essential to the existence and due preservation of the powers and obligations of the other.  The destruction of either would be equally calamitous, since it would involve the ruin of that beautiful fabric of balanced government, which has been reared with so much care and wisdom, and in which the people have reposed their confidence, as the truest safeguard of their civil, religious, and political liberties.” ^[19]

“The Constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred....[He then argued that any government must be given some amount of discretionary powers in order to accomplish its objects and purposes.  But then, to avoid the implication that he was arguing for unlimited federal authority, he next observed:]

“On the other hand, a rule of equal importance is, not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous.  If it be mischievous, the power of redressing the evil lies with the people by an exercise of the power of amendment.  If they do not choose to apply the remedy, it may fairly be presumed, that the mischief is less than what would arise from a further extension of the power; or that it is the least of two evils.  Nor should it ever be lost sight of, that the government of the United States is one of limited and enumerated powers; and that a departure from the true import and sense of its powers is...the establishment of a new constitution.  It is doing for the people, what they have not chosen to do for themselves.  It is usurping the functions of a legislator, and deserting those of an expounder of the law.” ^[20]

“...the state governments would clearly retrain all the rights of sovereignty, which they before had, and which were not...exclusively delegated to the United States.” ^[21]

“...There can be no doubt, that an affirmative grant of powers in many cases will imply an exclusion of all others.  As, for instance, the constitution declares, that the powers of congress shall extend to certain enumerated cases.  This specification of particulars evidently excludes all pretensions to a general legislative authority.  Why?  Because an affirmative grant of special powers would be absurd, as well as useless, if a general authority were intended.” ^[22] [This sounds remarkably similar to what Madison said about how the general welfare clause should be interpreted in Federalist #41,discussed in the prior article.]

“...The constitution is not to be subject to such fluctuations.  It is to have a fixed, uniform, permanent construction.  It should be, so far at least as human infirmity will allow, not dependent upon the passions or parties of particular times, but the same yesterday, today, and forever.” ^[23]

“...every word employed in the constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it.  Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or juridical research.  They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings.  The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense; and cannot be presumed to admit in them any recondite meaning, or any extraordinary gloss.

“But in the next place, words, from necessary imperfection of all human language, acquire different shades of meaning....No person can fail to remark the gradual deflections in the meaning of words from one age to another; and so constantly is this process going on, that the daily language of life in one generation sometimes requires the aid of a glossary in another....We must resort then to the context....” ^[24]

Justice Antonin Scalia’s Views

Justice Antonin Scalia, a current member of the Supreme Court once lamented:

“What secret knowledge, one must wonder, is breathed into lawyers when they become justices of this court?....Day by day, case by case, [this court] is busy designing a Constitution for a country I do not recognize.” ^[25] (emphasis added)

In dissenting against the majority opinion striking down Virginia’s all-male Virginia Military Institute (VMI), Justice Scalia said:

“The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: They left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society's law-trained elite) into our Basic Law.” ^[26]

In his dissenting opinion in Lawrence v. Texas where the U. S. Supreme Court held Texas’ anti-sodomy statute to be unconstitutional, Justice Scalia observed:

“What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new ‘constitutional right’ by a court that is impatient of democratic change.  It is indeed true that ‘later generations can see that laws once thought necessary and proper in fact serve only to oppress,’ ...and when that happens, later generations can repeal those laws.  But it is the premise of our system that those judgments are to be made by the people, and not imposed by a government caste that knows best.” ^[27]

Conclusion

Jefferson correctly predicted the judicial destruction of federalism.  That would not have happened had our federal judges stayed true to their proper roles in our constitutional scheme as explained by Hamilton in Federalist #78, Joseph Story in his constitutional treatise, and the early Supreme Court itself in its holdings.  The proper role of a judge is to exercise judgment in applying the law as per the intents of those who created it, to the facts and controversies before his court, rather than imposing his own personal will regarding the enunciation of new public policy.  Constitutional principles were supposed to be fundamental and permanent because (1) they derive from the will of the people themselves, and (2) their will cannot be changed very easily because of the difficult mechanism for change purposefully engineered into the amendment process.  The courts were not given the power to change those principles on personal whims.  When the Constitution was to be interpreted and applied, rather than confining themselves to the original intents behind it, activist courts discarded them and became super-legislators in determining matters of public policy.  However, as discussed in the prior article, this is very dangerous for it tends to generate deep-seated frustrations and angers among those who perceive themselves as becoming permanent losers on the various issues.  This is particularly true when the Supreme Court trumps ordinary democracy with semi-permanent pronouncements of constitutional rights and/or mandates on the various governmental units.  This perpetuates a “rule of men” rather than the “rule of law” since it violates the compact theory of government which emanates bottom-up from the people, rather than the top-down from the courts.

In future articles, we will show how the U. S. Supreme Court has managed to accomplish radical changes in our original constitutional form of government while most of us were asleep.  But before we do that, the next article will discuss another topic in the “fundamentals” category – the relationship of virtue and morality to liberty.

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