Altering the Constitution

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October
19, 1999

I
constantly reread The
Federalist Papers
, and every time I do my heart cracks a
little. If only the Constitution worked the way Alexander Hamilton
and James Madison promised it would!

In Federalist
No. 53, Madison noted as a flaw in the British system that the British
Constitution – the almost sacred fundamental law – could
be changed by a simple legislative act of the Parliament. The Parliament
therefore had the power to abolish the liberties of the people at
any moment.

Herein lay,
according to Madison, the superiority of our proposed Constitution.
It was to be “a Constitution established by the people and
unalterable by the government.” Today the federal government
constantly alters the Constitution, making it what Thomas Jefferson
feared: “a blank paper by construction [interpretation].”

Jefferson warned
that the federal government must never be allowed to be the sole
and final judge of its own powers, because it would construe those
powers so broadly as to destroy all limits on them. Yet we now take
for granted that the U.S. Supreme Court has the authority to decide
what the Constitution means, though no such authority is given to
it in the Constitution itself.

Most Americans
know little about the Constitution, and much of what they know ain’t
so. They “know” there are three branches of government,
that each state has two U.S. senators, and that the Bill of Rights
says something about freedom of speech; and they are content to
let the Supreme Court fill in the blanks. And conservatives do little
to correct this impression.

Altering the
Constitution has become the daily business of the federal government
the document is supposed to guide and limit. Both Congress and the
judiciary assume, and exercise, countless powers they aren’t
entitled to.

The most spectacular
and controversial example of usurpation was the Court’s 1973
ruling that state abortion laws are unconstitutional. This plainly
amounted to a veto of the will of the people in all 50 states.

The purpose
of judicial review, as Hamilton explains it (in Federalist No. 78),
is to prevent the legislative branch, meaning Congress, from violating
the abiding will of the people as expressed in the Constitution.
Otherwise, every legislative act would supersede the Constitution
as “established by the people,” just as in Britain.

But the 1973
abortion decision was just the opposite of what Hamilton had in
mind. It was a case of the judiciary imposing its own will on the
people. Such an arbitrary interpretation of the Constitution (which
of course says nothing about abortion) had never occurred to anyone
in his right mind. The “right” to abortion was sheer fabrication.

Ah, but we
are told that the Constitution is a “living document,”
which means something different in every age. By implication, the
government doesn’t alter the Constitution; nobody alters it.
It alters itself!

By this pitiful
sophistry the Court denies responsibility for its own impulsive
alterations of the Constitution. It can’t admit that it struck
down abortion laws just because it didn’t like them.

Opponents of
the Constitution – especially the pseudonymous (and still unidentified)
“Brutus” of New York – warned that this is exactly
what the federal courts would do, since the Constitution had placed
them “above control.” “Brutus” predicted that
“the judges will be interested to extend the powers of the
courts, and to construe the Constitution, as much as possible, in
such a way as to favor it.” Arbitrary judicial rulings would
gradually “diminish and destroy both the legislative and judicial
authority of the states.”

Hamilton said
this could never happen, because the judiciary was too weak to impose
its will – it was “the least dangerous” of the three
branches. Not to worry.

“Brutus”
replied that “to answer objections made to a power given to
a government by saying it will never be exercised, is really admitting
that the power ought not to be exercised, and therefore ought not
to be granted.”

Well, the Court’s
power wasn’t really “granted” by the Constitution;
it was taken by usurpation. But today the Court is indeed “above
control.” So “Brutus” was right.

And “Brutus,”
whoever he was, was an honorable man.

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Joseph
Sobran (1946–2010), conservative turned libertarian, was one
of the most significant American writers. See his
website
and his
intellectual journey
.

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