Tap-Dancing Around the Constitution

Tap-Dancing Around the Constitution
Special to FreeRepublic ^ | 13 May 2008 | John Armor (Congressman Billybob)

Posted on Tuesday, May 13, 2008 11:17:13 AM by Congressman Billybob

It is unfortunate when major media discuss constitutional issues yet exhibit zero understanding of why we have a Constitution and what it means. The latest example is the cover story in USA Today on 12 May, 2008, entitled “Reagan's influence lives on in U.S. courts.”

The general premise of the article is absolutely true. The influence of judges appointed by any President extends far beyond his term and often beyond his lifetime. However, the article gets lost in discussing why that’s so, and what it means.

In 1,572 words about the interpretation of the Constitution, the article never even uses the word “Constitution.” Nor does the reporter understand that the Constitution is, as its text says, “the supreme Law.” What federal judges do, in ruling on cases, is treated as merely politics by other means. In this article, judges are politicians who happen not to be elected, who serve for life, and who wear black robes. Other than that, they are as free-wheeling in their judgments as any politician in Congress, or state legislatures, city or county councils.

The article says that these judges on the 13 federal Courts of Appeal are the “first judges in more than a half-century to say that the Second Amendment protects and individual’s right to own guns.” This statement turns constitutional interpretation on its head. It is not the business of judges to rewrite what the Constitution says. It is their job to apply what the Constitution says.

Based on the briefs and the oral argument, it looks like the Supreme Court’s ruling in the Heller case, will decide that the 2nd Amendment does guarantee a personal right to own guns. That will not be because a majority of the Justices think it OUGHT to mean that. It will be because a majority of the Justices recognize that it DOES mean that.

Similar confusion of political decision-making with judicial decision-making appears throughout this article. There is no reason to pick on USA Today. Most major media make exactly the same error when discussing constitutional issues. Here are examples from the article:

It is not the business of judges to “take the lead in ruling against affirmative action.” It is the business of legislators to vote for, or against, any form of affirmative action. Judges only have the duty of saying whether what the legislators passed is in accord with the Constitution. The Constitution leads, not the judges.

The article describes the Reagan-appointees as “conservatives” because they have spoken before “the arch-conservative Federalist Society.” The Federalist Society is committed to the observance and enforcement of the Constitution as written by the thousands of men and women who took part in that process. Judges take an oath of office to preserve and enforce that same Constitution.

Wait a minute, you say. The Constitution was written and ratified by a bunch of elderly white guys wearing wigs and stockings, wasn’t it? Though elderly white men did most of the writing and ratifying, the last Amendment was ratified in 1992. Thousands of men and women then serving in state legislatures, were part of the process. Article V, the amendment process, states that once ratified, amendments are as much a part of the Constitution as what was originally written in 1787.

All the combinations of races, religions, and sexes present in modern legislatures ARE part of the “Founding Fathers.” This is not just a passing point. The Constitution belongs to “We the People,” as it proclaims. Taking the amendment process away from We the People, and handing it to five of the nine Supreme Court Justices is a frontal assault on “the consent of the governed,” the bedrock of American political theory.

Politicians must obtain the consent of the governed, because they face elections. Judges were deliberately freed from facing elections to give them independence to follow the law wherever it led. But if judges make political decisions instead of legal ones, they become dictators – serving for life with no cure for their errors.

This article’s assumption that judges are politicians, no more no less, shows here: “Their influence is a testament to Reagan's promise to set a new course for the nation's law — a promise reverberating in the presidential race today. His lawyers sought nominees who would not try to solve society's problems and who would reverse the trend of judicial involvement in school integration, prison problems and the environment.”

Creating laws to “solve problems” is a legislative function. Courts exist to enforce laws and constitutions. Apparently both this reporter and her editor slept through civics class when the “separation of powers” between the branches of government was discussed.

Of the process of appointing federal judges, the article says, “Reagan broke the prior White House pattern of accepting senators' preferences for appeals court seats and put in place a sophisticated screening of candidates run by Department of Justice and White House lawyers.” This is “senatorial courtesy,” in which a President is expected to follow the suggestions of the Senators from a state which is “entitled” to a particular judicial appointment. In case anyone missed the politics of the article, elsewhere it refers to Reagan’s “judicial juggernaut.”

The article does not note that up to ten judicial appointments are now tied up in the Senate because certain Senators insist that certain people be appointed, including the niece of a senior Democrat. “Senatorial courtesy” is only a tradition, not a constitutional requirement. In fact, hold-ups like this are instances of the Senate saying, “we won’t do our constitutional duty and vote on your judges, until you pay us judicial blackmail.”

Anyone reading, watching or listening to any media discussions about the Supreme Court, should note whether the reporter understands that courts are different from legislatures, that judges have different functions than legislators. Reports which treat judicial decisions as merely extensions of the political process totally misread the Constitution.

Judges who act legitimately are bound by their oaths of office to obey and enforce the Constitution. It should only change when the ultimate authority, We the People, choose to amend it, as in 1992. It is not for judges to amend the Constitution on their own hook. The mainstream media routinely miss that central point in their articles concerning the Constitution. This error in USA Today is, unfortunately, quite common.

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About the Author: John Armor practiced law in the US Supreme Court for 33 years. John_Armor@aya.yale.edu He wrote this article at the behest of the American Civil Rights Union. www.theacru.org

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