Judicial Review vs. Constitutional Government

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One
overlooked effect of judicial review — the power of American judges
to declare laws unconstitutional — is that it gives judges power
to adopt amendments the people, through their representatives, have
rejected. "Constitutional law," the body of decisions
of American judges implementing the Constitution, not only does
not reflect the people's wishes in adopting constitutional language,
but often flatly contradicts it.

The first,
and perhaps most significant, instance of the courts' use of judicial
review as an amendment power came in 1819, with the Supreme Court's
decision in the case of McCulloch v. Maryland. That case
concerned the constitutionality of the 1816 bill chartering the
second Bank of the United States.

Counsel
for Maryland in McCulloch, State Attorney General Luther
Martin, was one of the Framers of the Constitution. He argued that
since the list of Congress's powers in Article I, Section 8 of the
Constitution did not include power to charter a bank, the bank chartering
legislation was unconstitutional.

Martin
knew that in the Philadelphia Convention of 1787, delegates such
as James Madison had endeavored to have their fellow delegates give
Congress a general legislative power, and that they had been defeated.
A careful list of the types of laws Congress could adopt had been
included in the Constitution instead.

Martin's reasoning
was that the states had created the federal government and, in doing
so, given it only certain specified powers. All the other governmental
powers, he said, remained in the states, where they had been before
the federal government was created. This, he might well have added,
was exactly the explanation of the Constitution that had been offered
by Framers Charles Cotesworth Pinckney in South Carolina, Edmund
Randolph in Virginia, William Cushing in Massachusetts, Alexander
Hamilton in New York, and James Wilson in Pennsylvanian when ratification
of the Constitution was being considered by the states in 1787–88.
It also underlay the Tenth Amendment, which was added to the Constitution
to make explicit a principle the Federalists had insisted was already
implicit. ( It says, "The powers not delegates to the United
States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.")

No, Marshall
said for the unanimous Supreme Court, Martin was wrong. According
to Marshall (who was not a Framer of the Constitution), Martin (who
was a Framer of the Constitution) did not understand what the Philadelphia
Convention that drafted the Constitution had done. Far from the
product of thirteen states, Marshall said, the Constitution was
the act of one American people. It gave Congress not only the powers
expressly granted in Article I, Section 8, but also boundless powers
implicitly granted. (Federalist spokesman Governor Edmund Randolph
had assured the Virginia Ratification Convention, of which Marshall
actually had been a member, that Congress would have only the powers
it was "expressly delegated" by the Constitution. But
no matter.) And so matters stand today: the people ratified a Constitution
giving the federal government limited powers in 1787–88, but the
Supreme Court amended the Constitution to give Congress virtually
boundless powers in 1819. The nationalist vision defeated in the
Philadelphia Convention thus became the law of the land.

The next most
egregious example of the Supreme Court's use of its de facto amending
power came in 1976, with the Court's decision in Craig v. Boren.
In 1976, the states were considering — and, as it turned out, rejecting
— Congress's proposed Equal Rights Amendment. The Equal Rights Amendment
would have banned sex discrimination, making it illegal for Congress
to bar women from combat roles in the military, say, or for states
to allow only women to marry men and only men to marry women.

Oklahoma had
a statute establishing the minimum legal drinking age at 18 for
women and 21 for men. In support of this discrimination, the counsel
for Oklahoma noted that while only 0.18% of women aged 18–20 were
arrested for driving while under the influence of alcohol, 2% of
men that age were. In other words, the state's statistics showed
that men 18–20 were 11.11 times (1,111%) as likely to be arrested
for DWI as women the same age. The state's policy was intended,
then, to prevent men in that age group from drinking and driving.

Justice William
Brennan, who once explained that he operated according to the "Rule
of Five" — that with five votes, he could do anything — led
the Court majority in striking down the Oklahoma discrimination.
In doing so, he established that the Court would apply an intermediate
level of scrutiny — between the higher one applied to race discriminations
and the lower one applied to common statutory classifications —
to legislation discriminating on the basis of sex. This decision
had no relationship whatsoever to either the language of the Constitution
or the people's intention in ratifying the relevant provisions.
On the contrary, the people ultimately rejected the ERA. But the
Court had effectively adopted it anyway. Just as in the case of
the Marshall Court's McCulloch decision, a Court majority
foisted off on the people a version of the Constitution that the
people had not ratified — that their representatives had thoughtfully
rejected.

A third
area in which the Court has given us an amendment we rejected is
in that of the relationship between government and religion (or,
to use the popular shorthand, "church and state"). The
First Amendment's religion clauses — the Establishment Clause and
the Free Exercise Clause — were not originally understood as applicable
against the states. How could they be, indeed, when they begin by
saying, "Congress shall make no law"? If they had been
intended to affect state religion policy, in fact, they never would
have been ratified, not least because several of the states (New
Hampshire, Massachusetts, and Connecticut) had state religions at
the time that the Bill of Rights was ratified. In fact, James Madison
proposed an amendment affecting state religion policies when he
put the first draft of the Bill of Rights before the Congress, and
it was defeated in Congress.

In the
mid-19th century, however, a huge wave of Irish immigration
followed the onset of Ireland's devastating Potato Famine. Nativists,
atheists, and Protestants responded to the novel influx of large
numbers of Catholics by developing an ideology of "American
rights," rights appertaining not to state citizens as state
citizens but to Americans in general as … Protestants, men, natives,
or some combination thereof. Catholicism at the time endorsed government
involvement in religion, and these people intended to head that
off with a separation ("Americanism") amendment.

These people
pushed repeatedly in the 19th century for an Americanism
amendment putting the idea of separation of church and state in
the Constitution. They conceded that it was not in the Constitution
yet, and that that was why the amendment was needed. Their attempts
at amending the Constitution for this purpose failed.

Among the
groups most significant in developing this ideology was the Ku Klux
Klan. When the Klan was reborn in the 1920s, it pushed especially
hard for a "wall of separation between church and state."
Practically, this meant that government should deny support to Catholic
schools, which were seen as un-American.

Perhaps
the people could not be persuaded to amend the Constitution the
constitutional way, but the Supreme Court still could accomplish
the same goal. How surprising is it, then, that the Supreme Court
justice who wrote the idea of "a wall of separation between
church and state" into American constitutional law — that is,
into the body of Supreme Court precedents implementing the Constitution
— was a devoted Klansman, Justice Hugo Black of Alabama, and that
that Klansman long had expressed support for the anti-Catholic ideology
of the Klan?

Black wrote
the majority's opinions in Everson v. Board of Education
(1947), which first made "a wall of separation" the guiding
metaphor in this area of "constitutional law," and in
Engel v. Vitale (1962), which banned voluntary non-denominational
prayer from public school. Black said that the Fourteenth Amendment's
Due Process Clause, which guarantees that no one will be fined,
imprisoned, or executed by a state without a hearing, bans such
prayer. (Yes, that is what he said.)

As in the case
of the broad congressional powers favored by Marshall and the ERA
favored by Brennan, the wall of separation favored by the Klan was
first rejected through the normal process of constitution-writing,
then effectively added to the Constitution via a court decision,
and has been a part of "constitutional law" ever since.
All of this goes to show that there is virtually no relationship
between "constitutional law" and the Constitution adopted
and formally amended by the people through their representatives.
In other words, it illustrates the woeful difference between republican
self-government and the system under which we now live.

June
15, 2007

Kevin
R. C. Gutzman, J.D., Ph.D. [send
him mail
], Associate Professor of History at Western Connecticut
State University, is the author of The
Politically Incorrect Guide to the Constitution
, new from
Regnery, which tells the whole story.

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