The Republican Party’s loss in the last presidential election showed, I thought, the folly of our trying to win while ignoring the most potent and GOP-friendly of all social issues, and the inadequacy of our trying to end the liberals’ long-running judicial dictatorship on those social issues solely by promising to appoint only “strict constructionists” to the federal bench.
As we enter a new election year, nothing much has changed. Our presidential candidates are continuing the GOP’s mystifying silence on the life-and-death social issue of crime and punishment, and their only new ideas for dealing with the activist courts have been slammed from both left and right as ill-conceived and ineffectual.
How those two issues — crime and the courts — relate to one another may be expressed very quickly:
● Americans overwhelmingly support the death penalty for murder, yet under rules invented and imposed on us by the Supreme Court, murder is hardly ever punished by death.
● Capital punishment has been shown to be a powerful deterrent when, and only when, it is actually enforced.
● Since 1960, more than 900,000 innocent people have been murdered in the United States.
● Many thousands of those lives, probably most of them, perhaps even the great majority of them, could have been saved if death for murder were the rule, rather than the extremely rare exception.
● Without corrective action, this massive and needless loss of innocent life will continue indefinitely. Yet no one in our party is even talking about it, let alone doing something about it.
What follows is my attempt to fix that. It was written shortly after Newt Gingrich unveiled his much-panned program for reining in the courts.
Among conservatives, the consensus regarding Gingrich v. the judiciary seems to be that Gingrich is right in saying liberal activist courts have overstepped their constitutional authority, right in viewing conservatives’ response to that as having been woefully inadequate, but wrong in his proposed solutions. Starting there, it might be asked: Can better solutions be found? The answer is most certainly yes.
Let’s define terms. First, judicial activism is not (as implied by liberals when they decry “conservative judicial activism”) just a disposition to rock the boat. It’s not a willingness to overturn precedent or to rule against the enactments of Congress or the actions of the executive branch. Judicial activism is the interpretation of the Constitution, on points where its original meaning is clear, in a sense deliberately contrary to that meaning so as to obtain a result favored by the court.
Why prefer the Constitution’s original meaning over whatever meaning a judicial activist might give it? Because only the original meaning reflects the will of “We the People.” Allowing the Constitution to be changed by judicial usurpation — rather than by the people themselves through the amendment process — turns “We the People” into “We the Judges.” It puts the courts above the Constitution, rather than keeping the constitution above the courts.
Second, the opposite of judicial activism is not “strict construction.” That term derives from a 19th-century dispute over the meaning of the clause authorizing Congress to make “all laws which shall be necessary and proper” for carrying out its enumerated powers. Chief Justice John Marshall opined in McCulloch v. Maryland that this clause gives Congress considerable discretion; his critics, dubbed “strict constructionists,” urged that it be taken more narrowly. The controversy involved congressional, not judicial, freedom of action. Both sides held that their interpretation reflected the Constitution’s original, true, ratified meaning. Neither side asserted that judges are free to disregard that meaning and substitute new concepts of their own.
Judicial activism, therefore, is not effectively countered by promising to appoint only “strict constructionists” to the federal bench. And it helps not one bit to say “originalist” instead of “strict constructionist.” The object is to bring the courts back under the authority of the Constitution, to disable them from remaking it in the guise of interpreting it. That object is not served merely by filling the courts with judges whose personal inclination is to accept the Constitution’s original meaning. It is achieved only by obliging all judges to accept that original meaning, whether they want to or not.
Nor is judicial activism effectively countered by subjecting the judiciary to the harassments Gingrich proposes. Dragging judges up Capitol Hill to be harangued by grandstanding congressmen, cutting their budgets and staff or abolishing their positions altogether, or simply ignoring their rulings and defying them to do anything about it — none of that is even politically feasible, let alone constitutionally defensible.
Judicial activism can be put down, however, if the people themselves will intervene in the activist-originalist dispute. Let us devise a constitutional amendment setting forth originalism as the rule for all judges to follow, and by ratifying it the people will give judges their marching orders, rather than the other way around. By thus reclaiming our right of self-government, we can sweep away judicial activism and all its ill effects.
Imagine an America in which Roe v. Wade has vanished like a bad dream; in which racial discrimination and “reverse discrimination” are equally outlawed; in which traditional expressions of public piety are no longer plagued by anti-Christian litigation; in which “gay marriage” is once again a laughable concept in law as well as fact; in which murderers are not set free on technicalities and effective measures can again be deployed to crush the crime wave that has tormented us since the 1960s.  A single constitutional amendment can give us all that.
True, the amendment would need a specific clause to ban racial discrimination. That’s because the people who gave us the 14th Amendment were segregationists.  Their understanding of what that amendment means is not what most people would embrace today, yet “separate but equal” is closer to the amendment’s original meaning than Brown v. Board of Education is. The overthrow of Jim Crow segregation is, indeed, the one good deed our judicial activists can boast of. It also is, alas, the activists’ rationale for denying us our right of self-government in almost every other matter under the sun. But it’s no big problem for us to keep the integration baby while throwing out the activist bathwater.
A bigger problem is how to handle the implied powers / enumerated powers conundrum. A judiciary confronted with what undoubtedly would be dubbed a “Strict Construction Amendment” (no matter what we called it) might, on the “firemen first” principle, start throwing out all sorts of federal programs and departments on grounds they’re unrelated to any powers enumerated in the Constitution. While we might be glad to see some of those things go — ObamaCare, for example, may well get the judicial heave-ho this year, even without our amendment — others would be sorely missed. No amendment will get anywhere if it arguably might interfere with popular services ranging from Social Security to national parks, disaster relief and even the Air Force. So whatever we come up with would need to include some sort of language to protect such programs as those.
It might also be advisable to “incorporate” at least some of the provisions of the federal Bill of Rights into the 14th Amendment’s limitations on state and local power. Americans take it for granted that freedom of speech, for example, can’t be interfered with by government at any level, and we’d need to respect that. Federal courts have long been incorporating the Bill of Rights on their own, of course. They unfortunately have also been transmogrifying those rights into things unrecognizable to Americans of any previous generation. The trick for our amendment’s “incorporation” clause would be to preserve the one process while reversing the other.
Special attention would also need to be paid to law enforcement. Much of what the Supreme Court has done there is clearly activist, and its death penalty interdiction, in particular, has had a deadly effect: By impairing deterrence it has doomed hundreds of thousands of murder victims. Nevertheless, the 14th Amendment’s “due process” clause does, in its original meaning, put the federal government in charge of state and local law enforcement to some degree, and the Warren Court’s revolution in criminal justice procedure — devastating as it was to crime victims from the ’60s onward — could be seen as less an example of judicial usurpation than one of exceedingly bad judgment. If our amendment is to be of any use in the restoration of law and order, then, it would need to give the courts some badly needed guidance in that area.
Much trouble as devising such an amendment might be, it’s worth it if we can thereby regain control over such issues as abortion, pornography, gay rights, school prayer and, most importantly, crime and punishment. And the good news is that the meat of the amendment can be composed entirely from principles expressed by our Founding Fathers.
George Washington in his Farewell Address stated that the Constitution, “till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.” He emphasized that constitutional change comes only through the amendment process. “Let there be no change by usurpation,” he warned, “for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
Thomas Jefferson promised as president that the Constitution “shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption.”
James Madison agreed: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers.”
Like Washington, Madison urged that constitutional change come only through amendment. “A regular mode of making proper alterations has been providently inserted in the Constitution itself,” he wrote. “It is anxiously to be wished, therefore, that no innovations may take place in other modes, one of which would be a constructive assumption of powers never meant to be granted.”
Alexander Hamilton, writing in the Federalist No. 81, promised the Constitution’s ratifiers that they’d never come under the judges’ thumb. “The supposed danger of judiciary encroachments on the legislative authority … is in reality a phantom,” he wrote. “Particular misconstructions and contraventions of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.”
What made Hamilton so sure of that? He cited Congress’s power of impeachment as his guarantee. This “important constitutional check,” he wrote, “is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of [Congress], while this body was possessed of the means of punishing their presumption by degrading them from their stations.”
And even John Marshall (who as a member of the Virginia ratifying convention is a Founding Father as well as our greatest chief justice) sang the originalist tune. “Judicial power, as contradistinguished from the power of the laws, has no existence,” he wrote. “Courts are the mere instruments of the law, and can will nothing. … Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.”
Marshall’s most famous words come from McCulloch v. Maryland: “We must never forget that it is a constitution we are expounding, … a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” Those words have been cited ever since as a call for judicial activism. But when Madison and others accused Marshall of exactly that, he emphatically denied it. In newspaper essays defending McCulloch, he wrote that the “intended to endure for ages” passage “does not contain the most distant allusion to any extension by construction of the powers of Congress. Its sole object is to remind us that a constitution cannot possibly enumerate the means by which the powers of government are to be carried into execution. … The [Supreme Court’s] power of deciding, in a last resort, all questions ‘arising under the constitution and laws’ of the United States … cannot be the assertion of a right to change that instrument.”
Marshall’s defense of McCulloch v. Maryland was lost to history until rediscovered by Stanford Law Professor Gerald Gunther in 1969, but his rejection of judicial activism has been evident all along. From the bench, he held “that the intention of the instrument must prevail; that its provisions are neither to be restricted into insignificance nor extended to objects not comprehended in them nor contemplated by its framers.”
In today’s terms, then, Marshall was a “strict constructionist” — and he himself said as much: “What do gentlemen mean by a strict construction? If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle.”
In defense of McCulloch, Marshall wrote: “There is certainly a medium between that restricted sense which confines the meaning of words to narrower limits than the common understanding of the world affixes to them, and that extended sense which would stretch them beyond their obvious import. There is a fair construction which gives to language the sense in which it is used, and interprets an instrument according to its true intention. It is this medium, this fair construction that the Supreme Court has taken for its guide.”
A title for our amendment! We can call it the Fair Construction Amendment in Marshall’s honor.
Chapter and verse for these quotations are on the Sources page at www.fairamendment.us. They can be worked into a constitutional amendment in any number of ways, but here’s how my version goes:
Section 1: The Judiciary of the United States shall not presume to exercise non-judicial power.
This Constitution is changed only by an explicit and authentic act of the whole people. The sense in which it was accepted and ratified by the nation shall be the guide in expounding it, precedents to the contrary notwithstanding. Its provisions are neither to be restricted into insignificance nor extended beyond the natural and obvious meaning contemplated by the plain understanding of the people at the time of its adoption. Any faults it may contain are to be corrected by amendment as prescribed in Article V, not by usurpation.
Disregard of these principles is cause for impeachment.
Section 2: No one in the United States shall be either subject to or entitled to discrimination in education, employment, housing, or public accommodations on account of race.
The Congress shall have power to enforce this section by appropriate legislation.
Section 3: The provisions of this Constitution’s first article of amendment shall apply to the states as well as to the United States; but in every other respect, they shall be expounded according to the rules set forth in Section 1 of this article.
Section 4: So that the perpetrators of violent crimes may meet with swift and certain retribution, the courts’ effort to protect them in their rights shall not be perverted into permitting any mere technicality to avert or delay their punishment. Rules governing law enforcement shall be so designed as to protect the individual without imposing a disproportionate loss of protection on society.
Section 5: The Congress shall have power to …
Whether expressed in general terms or as a supplementary list of enumerated powers, Section 5 would need to carefully avoid destroying all limits on federal power. Likewise, Section 2 would need to hold the line at race, and not allow the full array of special civil rights categories to be tacked on, thus smuggling gay rights. the ERA and God knows what else into the Constitution.
As for Section 4, though its wording may sound odd, it makes use of the same technique as Section 1: It’s based on the writings of people who can’t be “borked” — in this case, Theodore Roosevelt, Benjamin Cardozo, C.S. Lewis and Belgium’s World War I hero Désiré Cardinal Mercier. (Again, see the Sources page at www.fairamendment.us.) The idea is to get the amendment’s opponents into an argument with those gentlemen, and with the Founding Fathers, rather than with someone like Gingrich who can be easily demonized.
An amendment like this could be of great use to any of the Republican presidential contenders, especially if linked to the potent but neglected social issue of crime and punishment.  It could add weight to Gingrich’s critique of the courts, or it could help Rick Santorum’s campaign catch fire at last. And if the nomination goes in the end to Mitt Romney, it could be a means of drawing conservatives to him as he has not yet been able to do. It could even capture the imagination of Ron Paul fans or of any others on the right who might otherwise be tempted to support a destructive and self-defeating third-party candidacy.
If this solution doesn’t pan out, there may be others. In any case, let’s not go into yet another presidential election with the same lame response to the liberals’ long-running judicial dictatorship on the social issues. Let’s seek something more than a tired, familiar and too often fruitless promise to appoint only “strict constructionists” to the Supreme Court of the United States.
Karl Spence is author of Yo! Liberals! You Call This Progress? His work
has appeared in the Chattanooga Free Press, American Thinker and National Review.
1. Although the Great Crime Wave crested in the early 1990s, it is still with us. Crime rates remain, per capita, almost twice what they were in 1960. The sole exception is murder, which has been greatly reduced by advances in medicine. More victims of murderous attacks are being saved in ER now, and each one saved reduces a murder to an aggravated assault. Accordingly, aggravated assault remains almost three times its 1960 rate.
2. See Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, Second Edition (Indianapolis: Liberty Fund, 1997), pp. 132-154. Berger maintains that the Brown decision was, as historian Richard Kluger called it, “simple justice.” But he demonstrates beyond dispute that such justice is not what the framers and ratifiers of the 14th Amendment had in mind. At the time the amendment was adopted, eight Northern states provided for segregated schools either statewide or as a local option, and five Northern states excluded colored children from their public schools altogether. School segregation was the rule in the District of Columbia, over which Congress had direct authority. The legislative history of the 14th Amendment and of the related Civil Rights Act of 1866 shows clearly that Congress had no intention of disturbing such arrangements.
3. For more on crime and presidential politics, go here and here.