What Liberals Think About the Constitution

Supreme Court Justice Antonin Scalia calls himself a Constitutional “originalist.” He believes that the US Constitution is a legal contract between the federal government and the people, that it is as valid and binding today as when it was written in 1776. That is not to say that the Constitution is unchangeable. The document itself provides the means for amendment in Article V: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution ….” Indeed the first 10 amendments were the “Bill of Rights” ratified in 1791.

The intention of the founders was that the Constitution may evolve by the amendment process only, not by court decision. Judicial activism was not envisioned as it is dangerous to democracy. When judges rule on the basis of their own beliefs, in contradistinction to the Constitutional intent, then the judiciary becomes a political body, subject to the influence of political parties. Such activism usurps the powers of the legislative branch and of the states as written in Article V. When the courts become policy makers, “the people in a democracy will try to seize control.” They will seek to appoint justices who will evolve the Constitution they way they want it to evolve.

If only the Supreme Court and the appellate courts would stick to the originalist philosophy, the American democracy would be safe for all time. Unfortunately, we have appellate courts such as the 9th district in San Francisco believing they are right to declare the Declaration of Independence unconstitutional and gay marriage constitutional. Furthermore, we have liberal politicians who believe it to be their mandate to remake the Constitution in their own image.

Last weekend, the American Constitutional Society sponsored a conference at the Yale Law School entitled “The Constitution in 2020.” The purpose of the conference was to “work toward a progressive consensus as to what the Constitution should provide for by the year 2020, and a strategy for how liberal lawyers and judges might bring such a constitutional regime into being.” (“What Liberals Want,” John Hinderaker, Powerline Blog, 4/19/05.)

The keystone of the new constitution was envisioned to be the "Second Bill of Rights," that would recognize new and juicy rights to "a useful and remunerative job"; sufficient earnings to provide "adequate" food, clothing, and recreation; a "decent" home; a "good education"; and "adequate medical care and the opportunity to achieve and enjoy good health." In this progressive constitution “citizens are not only guaranteed freedom from specified forms of government interference, but also are guaranteed the receipt of specified economic benefits.” For example, every young adult would receive an “inheritance” from the government of $80,000. I’m sure we would all enjoy those “rights.” And who would pay for the benefits? Why the taxpayers of course!

Now the progressive conferees were not foolish enough to think that the federal or state legislators would pass such foolishness. But, never fear, the judicial activists are at the ready. As one of the conference participants said: "We don't have much choice other than to believe deeply in the courts--where else do we turn?"

We have many serious domestic problems. Education, Social Security, healthcare, social entitlements, energy policy, the legal system are all in need of reform. However, no other issue is as important as the judiciary. We must appoint appelate judges and Supreme Court justices who see the Constitution as it really is.