Is our Constitution merely a figment of someone’s imagination? No, you say. It’s a real document that I can hold in my hands and read. It was signed by a number of elected representatives. It is the law of our land. That all sounds wonderful for a Citizenship in the Nation merit badge class, but does it reflect reality?
While we can hold and read the Constitution, does what it says mean anything? Writing in the National Review, Jonah Goldberg argues that per the Supreme Court’s recent ruling against capital punishment for minors (see excellent legal analysis by Tony Mauro), “the meaning of the Constitution does not exist at all — outside the cranium of whichever justice provides the swing vote.”
Mr. Goldberg notes that it shouldn’t matter whether executing minors is a good policy or not. What should matter is whether the law fits within the framework of our Constitution. “We have gotten to a point where — on the major issues of the day — liberal elites and their fellow-traveling justices cannot tolerate the idea that a good law can be unconstitutional or that a bad law can actually be constitutional.”
Goldberg takes issue with the court’s increasing propensity to look to laws of other countries to interpret our country’s laws. He argues that the rulings of courts in Zimbabwe and Jamaica (just two of the foreign courts cited in recent rulings) are simply irrelevant to the constitutionality of a domestic law.
Legal expert John Hinderaker (of Power Line blog fame) writing in the Weekly Standard demonstrates how Justice Kennedy actually ruled against his own ruling of 16 years earlier where he stated that international law has no bearing on our Constitution. Hinderaker notes, “Justice Kennedy changed his mind. Amazingly, he found that the Constitution changed with him.” He concludes, “The Founders failed to foresee, unfortunately, an era in which unelected, unaccountable judges ignore the written words of the Constitution and the laws, and impose their own policy preferences by fiat.”
What happens to our Supreme Court Justices? Why is it that they seem to become more liberal over time? Because they actually do. Research reveals that nearly all justices tend toward more liberal rulings the longer they sit on the bench. (Epstein, Lee, Valerie Hoekstra, Jeffrey A. Segal and Harold J. Spaeth. 1998. “Do Political Preferences Change? A Longitudinal Study of U.S. Supreme Court Justices.” Journal of Politics 60(August):801-18. not available online) Some surmise that this is because justices become co-opted into the elitist Washington D.C. culture and they succumb to peer pressure.
Nationally recognized Constitutional expert Mark Levin (see National Review interview) recently released a book called Men in Black that documents the current level of judicial tyranny in our country. He notes that Congress could and should exercise much more oversight with regard to lower federal courts, but the Supreme Court is another issue. He suggests constitutional amendments for returning the Supreme Court to the Constitution they are sworn to uphold and for implementing judicial accountability: “1) Term limits for justices and judges; and 2) authorizing Congress to veto Supreme Court decisions with a super-majority (two-thirds) vote of both houses.” He believes the power to overrule the courts is more important than judicial term limits.
Our Founders intended for passage of an amendment to the Constitution to be difficult. Congress would likely be willing to give itself more power, but would the states go along with it? We will never know until someone stands up and starts to champion and actually propose these amendments. Do any of our current lot of politicians have the courage and the political capital to do it?