Center for Law and Justice International

Whose Constitution is it anyway?

A Word from Francis J. Manion

In court after court across the landscape laws passed by the people's representatives to stamp out horrific practices not seen in this country since the Iroquois roamed the Eastern woods are being blocked by the decisions of politically connected lawyers who have gone to school with the right people, played golf at the right country clubs, and thus earned the right to wear the robe of the federal judiciary. It is this magic robe which unlocks for its wearer the secret knowledge of the hidden meaning of that obscure and dense document whose mysteries are unfathomable to the uninitiated -- the United States Constitution. For no law enacted by the ignorant legislators chosen by the still more ignorant people is safe from the sleepless gaze of these federal wathchmen who alone hold the keys to unlock the meaning of that deceptively simple looking text. Encouraged and abetted by the professional civil libertarians and academic elites who are the self-appointed defenders of the faith the judges omit no opportunity to put the people in their place whenever their lawmakers presume to interpret for themselves the Delphic document that defines the limits of their right to self-government.

 And so when the lawmakers pass bills banning partial birth infanticide the ACLU-types rush to the local United States Courthouse before the ink on the parchment even dries and beseech the judges to do what they do best -- subvert the will of the overwhelming majority of the people. First the judges grant temporary, emergency relief (the emergency? Some abortionist might feel inhibited about dismembering a baby) preventing the law from taking effect. Then, after a perfunctory, wink-and-a-nod show trial (sometimes they don't even bother with an actual trial, relying instead on abortionists' affidavits), the judge solemnly declares that the law in question must never be allowed to take effect. The law is "struck down."

 What is the legal basis given for this awesome exercise of power? Why, the United States Constitution, of course. Never mind that that Constitution makes no mention of an inviolable right to abortion. Never mind that that Constitution grants the power to make and unmake laws to the legislature only. Never mind that that Constitution nowhere gives to judges the power to strike down laws as unconstitutional. The judges know best. They have the secret knowledge hidden from the rest of us mere mortals.

 But whose Constitution is it anyway? And who should have the last word about what the Constitution means as applied to a given case? It is well to remember that the first nine words of the document tell us that the Constitution was ordained and established by and for -- not the judges, not the lawyers or the law professors, not the rich, not the poor -- but by and for "We, the people of the United States of America . . . " Why then shouldn't "We, the people" have the final say in deciding what our Constitution allows or forbids?

 To question the power of judicial review is, of course, rank heresy these days in our lawyer-ridden country. But it was not so from the beginning. Thomas Jefferson, whose opinion ought to count for something in these matters, denied that the Constitution gave judges the right to strike down laws. Jefferson wrote, "The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." James Madison, often called the "Father of the Constitution," denied that the courts had the right to intrude in the legislative sphere declaring that "as the people are the only legitimate fountain of power, and it is from them the constitutional charter is derived . . ." disputes over what is or is not a proper exercise of power under the Constitution should be resolved, not by a supreme or any other court, but, rather, by "an appeal to the people themselves, who as grantors of the commission, can alone declare its true meaning, and enforce its observance."

 Similar sentiments were voiced by Andrew Jackson, Abraham Lincoln and Franklin Roosevelt. Candid legal scholars and commentators admit that judicial review is not expressed or implied in the Constitution but argue that "necessity" requires it. After all, the alternative -- interpretation of the Constitution by the people acting through their elected representatives or by referendum -- is something too horrible even to be imagined by these elitists.

 The gutting of partial-birth abortion laws by the courts ought to awaken us to the fundamentally political problem which confronts us. We speak of a spiritual problem, a moral problem, a decline or disappearance of Christian values, but, none of those problems stood in the way of overwhelming passage of partial-birth abortion laws by people of both political parties. Polls consistently show that, despite a generation of pro-abortion propaganda and a total blackout of the anti-abortion message in mainstream cultural outlets, most Americans think abortion should be legal "only in a few circumstances" or illegal in all circumstances. A landslide majority thinks partial-birth abortion should be banned and more Americans than not still think that "abortion is an act of murder."

 Maybe, just maybe, the people as a whole are not nearly as far gone in depravity as we are wont to think. Maybe the fullness of the moral and spiritual rot we decry is in the elite -- not in the masses struggling to lead decent lives both materially and spiritually in a world gone mad. But the political reality is that as long as the people have no real power to enact and enforce laws about such things as abortion we are going to be forced to live under laws imposed by the debauched elite who legislate through their carefully picked Black Robes.

 The political solution is for the people of this country to reclaim their charter of self-government. Lay the axe at the root of the poisonous tree. The "judicial despotism" forecast by Jefferson has become a reality which will continue to plague our efforts to make a decent society as long as we let it. All of the energy, time and money we spend electing candidates will be for nought while the laws remain subject to the whims of those who-know-better in the editorial rooms, the law school faculties, Hollywood, and the federal judiciary. They will continue to hold their big stick of judicial review over our heads and beat us down whenever we show signs of treading on their sacred preserve of unbridled license. And they will do this in the name of the Constitution.

 Whose Constitution? Not mine, not yours, not Jefferson's or Madison's, not the Constitution of those who tamed the frontier or braved the perils of emigration to a strange new land. Nobody shed his blood at Gettysburg or Shiloh for a Constitution that props up the likes of Larry Flynt. Nobody huddled in the trenches of the Western Front or clawed the sands of Iwo Jima to protect the right of some Porsche-driving quack to butcher babies about to be born.

 So when the judges tell us that the Constitution requires us to tolerate the intolerable let's start telling them that from now on we, the people of the United States of America, will tell them what our Constitution requires. Let's start talking to our representatives about the need for legislation to curb judicial review. The elitists will howl. The Dershowitzes will foam at the mouth. It will not be easy. But we will realize that this is the only way out of our present mess. We, the people, must become our own masters again.

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