Every one of us has at some time spoken or thought of our constitutional rights, but ask experts why rights laid out so long ago matter, and the answers will be as varied as the men who give them.
The minister will not hesitate to tell you that these rights come from God, the philosopher will embark upon a sleep-inducing lecture on natural rights, and lawyers like myself give the intellectual and unhelpful answer that the Constitution is the supreme law of the land.
The first two types of explanations are important to understanding why our Founding Fathers decided on the rights and governmental limitations they did, but neither explains why the Constitution itself still matters and must be obeyed to the letter for our country to fulfill the pact of liberty made with each citizen. The lawyer’s explanation is entirely circular.
Where the philosophers and lawyers fail, however, the Constitution succeeds in its first line. Its explanation of its own importance comes at the beginning and acts as herald to the rest.
The Constitution’s opening words are “We the People”, and they are not idle. Unlike the British Magna Carta, which preceded the Constitution by over 570 years and listed many similar rights, the Constitution was not written by kings or nobles. It was written by men representing their state’s citizens, and ratified by the elected legislatures of each and every state.
Many leftist lawyers and historians have gone so far as to paint the Constitutional Convention as a rogue gathering of wealthy men to avoid admitting that the Constitution was the product of democracy. These propagandists must avoid that, because if the Constitution was democratically created, it was the will of the people, and cannot be changed at the whim of a liberal court justice to “fit modern times.” The Supreme Court has tried to alter our Constitution under that premise again and again: mandating that all states accept abortion, giving the federal government the power to control all economic activity that could possibly affect commerce between states (thus the basis for most federal regulations), and giving near-absolute control to the Court over religious, racial, and gender issues. See Wickard v. Filburn (in which the Supreme Court decided that wheat a farmer grew but didn’t intend to sell still counted as “interstate commerce” thus allowing the federal government to fine him for growing more than they permitted).
But the Constitution was the product of a free choice. And because it can be amended at any time (according to its own text) it is also the will of the people now, not just the people of two centuries past. Indeed, the document has been amended no fewer than 27 times. As such, there is no need for a judge to change the meaning to “fit modern times” because the people themselves may change it.
Democracy can create just one theory of law – that the law is exactly what elected officials wrote, combined where an explanation is needed with the intent of those representatives.
But what law school students are taught is the aforementioned “modern times” theory of law – that we have a “living constitution.” It is true that the Constitution covers modern circumstances – free speech (a common example in law school) covers the modern internet. But law professors only use such examples to gain students’ acceptance of a viewpoint intended to destroy our founding document.
Having established what seems a reasonable theory, they tell impressionable young students that the Constitution does not merely apply to our time, it “lives” with the times. “If only the Founding Fathers knew abortion would be banned (they say) they would have protected it. When the Constitution says that the government can’t search your papers without a warrant, or quarter soldiers in your home in peacetime, this really means you have a general right to privacy – and thus the right to an abortion!” (this being the actual logic of Roe v. Wade and its predecessor, Griswold v. Connecticut, both taught by law schools as the gospel and the height of legal reasoning). In a dissenting opinion to Griswold, even liberal Justice Hugo Black – an advocate of individual liberty – tore the privacy argument apart (as I discussed in my book, Shattering Roe, [Amazon]).
And the method works – the legal profession is overwhelmingly liberal, with little respect for our democratically passed laws. Secure in the belief that the Constitution has no fixed meaning, new attorneys are open to the views of anyone with an impressive argument – especially if wrapped in the liberal politics often adopted by the young. There are no limits to this disregard for the law. In Plyler vs. Doe (for example) America’s Supreme Court Justices – filled with leftist disdain for the idea of national borders – decided on behalf of America that the Constitution mandates taxpayers pay for the schooling of illegal aliens (Plyler v. Doe). That fact that this appears nowhere in the Constitution bothered neither they nor the attorneys who argued for that interpretation of it.
To ensure that students never stray from what has become legal orthodoxy, their schools drill one final principle into their heads – stare decisis, meaning “let the decision stand.” It means that once a court – especially the Supreme Court – has decided an issue, the decision should remain, no matter how wrong – never mind that that would result in us still having segregated drinking fountains for black people (Plessy v. Ferguson, later overturned by Brown v. Board of Education). Naturally, liberal justices do find it in their hearts to overturn conservative decisions on a regular basis, sometimes very rapidly after the initial verdict. But this, students are taught, is the exception, not the rule.
For these reasons, it is quite hard for conservative presidents to find high-ranking federal judges who respect the Constitution to nominate to the Supreme Court. All of them have been trained in the same school of thought, and most believe it. They are willing to challenge wrongly decided cases such as Roe v. Wade only within the framework of modern legal thinking – meaning not at all. But the problem can be solved.
First, patriotic Americans must not send their children to liberal law schools. Conservative schools – Ave Maria, Liberty, etc. – are now well established, and offer scholarships. Second, conservative presidents must take risks with judicial nominations. They should nominate to the federal district and circuit courts truly conservative young attorneys, even if those attorneys did not go to a “top” law school (the big-name institutions are the worst offenders). Third, they must take risks with Supreme Court nominations, looking outside the federal courts if possible for individuals whose views are known beyond their case decisions – members of congress, state attorney-generals, governors, and conservative writers with legal backgrounds – Ann Coulter comes to mind. Finally, the schools themselves must be replaced, for they do not teach law, but politics. They cannot be reformed except by firing the entire faculty, for even conservative professors quickly become dedicated to the system. Rather their public funding must be cut, and their accreditations shredded.
If we do these things, there is good hope yet for the Constitution, and our proud legal system.
I have long held and expounded the view that our constitution was and is a flexible document. I use the example that; when it was written, I myself would not have been able to vote or have very little control, if I had any control at all, over my own right to live outside of an institution, control my finances or would have had other basic civil/constitutional rights as a woman. It was the choice of others to interpret our constitution in that way, it was a social norm not a constitutional exclusion. More importantly, it was a philosophical norm based upon Plato’s theory of natural slavery that was applied to women as much as to those enslaved in the southern states. This theory came from Europe in it’s application to explain away their enslavement and control of others. Of course, it lead to abuse of power, to laws wrongly passed and legal authority wrongly exercised. While it fomented rebellion and change amongst those repressed, we must not forget that it was the INTERPRETATION of the constitution, not the constitution itself, that the caused repression of people. This article is correct, we don’t need the courts to bring the constitution into modernity, we simply need our justices to apply it evenly, and to all.