Wednesday, May 12, 2010
hanging by a dread
If more people bothered to actually read this document – including President Obama, who once taught constitutional law and who, in this year’s state of the union address, erroneously declared that the Constitution provided that "all men are created equal" – they would discover the unlimited powers it provided to government. Beginning with a preamble setting forth the purposes of the Constitution being "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty," the document proceeds to set forth how such purposes are to be attained.
Article I, Sec. 8 informs us that "Congress shall have Power to lay and collect Taxes, . . . to pay the Debts and provide for the common Defence and general Welfare of the United States. . . ." Later on, we discover that Congress also has the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
Standing by themselves, these words would provide the most ambitious tyrant with the only grant of authority that would ever be needed to carry out his or her desired purposes. As Lord Macaulay so well expressed it, "Your Constitution is all sail and no anchor." One can find in this document all the power needed for putting together any political program.
Suppose that I was given the authority to "provide for the general Welfare" and "to make all Laws which shall be necessary and proper" for exercising this power? What could I not do, constitutionally, pursuant to such a grant? Who is to decide what constitutes the "general Welfare," or what laws are "necessary and proper?"
For those desirous of understanding the realpolitik – instead of just the rhetoric – of how (and by whom) constitutional powers are to be interpreted, one can begin with the insights of Humpty Dumpty, who advised Alice that "’When I use a word, . . . it means just what I choose it to mean – neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’"
Who, in our political scheme of things, is to be "master" of defining words, when one "can make words mean so many different things?" This is a power usurped, on behalf of the Supreme Court, by Justice Marshall in his opinion in the classic case of Marbury v. Madison. His convoluted reasoning came down to his finding, in Article III, a power of judicial review of the actions of other branches of the government, even though such authority is nowhere spelled out, or even hinted at, in the Constitution. When the Framers of the Constitution went to such great lengths to define – albeit in very abstract terms – the powers of the other branches, why would such a fundamental authority be omitted from the section on judicial powers? Through the use of a power of "judicial review" that is nowhere to be found in the Constitution, Justice Marshall made the Supreme Court the "master" of the meaning of words found therein.
In this manner, the Supreme Court became, for all practical purposes, the sovereign political authority. Its pronouncements – not those of the electorate, or of their elected representatives – became the final interpretation of the meaning of words subject, of course, to a later court providing a different interpretation. The Supreme Court – whose members are not subject to being voted in or out of office by the general citizenry – became the seat of arbitrary power. Members of the Supreme Court will vote their respective subjective preferences – or, more accurately, the preferences of the political establishment that elevated them to their status – for the ever-changing rules that will govern the rest of us in society.
This is why it is considered so impolitic to inquire of a judicial nominee his or her thinking on specific issues over which they are to promulgate binding definitions and rules of law. It is the nature of a sovereign not to be bound down, for such a limitation implies that his or her ultimate decision-making authority is subject to the approval or review of other forces who would, by definition, become sovereign. When it comes time for them to tell you of the rules to which you will be bound, rest assured that they will do so!
Posted by theo at 9:23 AM