I constantly reread The Federalist Papers, and every time I do my
heart cracks a little. If only the Constitution worked the way Alexander
Hamilton and James Madison promised it would!
In Federalist No. 53, Madison noted as a flaw in the British system
that the British Constitution — the almost sacred fundamental
law — could be changed by a simple legislative act of the Parliament.
The Parliament therefore had the power to abolish the liberties of
the people at any moment.
Herein lay, according to Madison, the superiority of our proposed
Constitution. It was to be “a Constitution established by the
people and unalterable by the government.” Today the federal
government constantly alters the Constitution, making it what Thomas
Jefferson feared: “a blank paper by construction [interpretation].”
Jefferson warned that the federal government must never be allowed
to be the sole and final judge of its own powers, because it would
construe those powers so broadly as to destroy all limits on them.
Yet we now take for granted that the U.S. Supreme Court has the authority
to decide what the Constitution means, though no such authority is
given to it in the Constitution itself.
Most Americans know little about the Constitution, and much of what
they know ain’t so. They “know” there are three branches
of government, that each state has two U.S. senators, and that the
Bill of Rights says something about freedom of speech; and they are
content to let the Supreme Court fill in the blanks. And conservatives
do little to correct this impression.
Altering the Constitution has become the daily business of the federal
government the document is supposed to guide and limit. Both Congress
and the judiciary assume, and exercise, countless powers they aren’t
The most spectacular and controversial example of usurpation was the
Court’s 1973 ruling that state abortion laws are unconstitutional.
This plainly amounted to a veto of the will of the people in all 50
The purpose of judicial review, as Hamilton explains it (in Federalist
No. 78), is to prevent the legislative branch, meaning Congress, from
violating the abiding will of the people as expressed in the Constitution.
Otherwise, every legislative act would supersede the Constitution as “established
by the people,” just as in Britain.
But the 1973 abortion decision was just the opposite of what Hamilton
had in mind. It was a case of the judiciary imposing its own will on
the people. Such an arbitrary interpretation of the Constitution (which
of course says nothing about abortion) had never occurred to anyone
in his right mind. The “right” to abortion was sheer fabrication.
Ah, but we are told that the Constitution is a “living document,” which
means something different in every age. By implication, the government
doesn’t alter the Constitution; nobody alters it. It alters itself!
By this pitiful sophistry the Court denies responsibility for its
own impulsive alterations of the Constitution. It can’t admit
that it struck down abortion laws just because it didn’t like
Opponents of the Constitution — especially the pseudonymous
(and still unidentified) “Brutus” of New York — warned
that this is exactly what the federal courts would do, since the Constitution
had placed them “above control.” “Brutus” predicted
that “the judges will be interested to extend the powers of the
courts, and to construe the Constitution, as much as possible, in such
a way as to favor it.” Arbitrary judicial rulings would gradually “diminish
and destroy both the legislative and judicial authority of the states.”
Hamilton said this could never happen, because the judiciary was too
weak to impose its will — it was “the least dangerous” of
the three branches. Not to worry.
“Brutus” replied that “to answer objections made
to a power given to a government by saying it will never be exercised,
is really admitting that the power ought not to be exercised, and therefore
ought not to be granted.”
Well, the Court’s power wasn’t really “granted” by
the Constitution; it was taken by usurpation. But today the Court is
indeed “above control.” So “Brutus” was right.
And “Brutus,” whoever he was, was an honorable man.
Copyright © 2011 by the Fitzgerald
Griffin Foundation. All rights reserved. This column was published originally
by Griffin Internet Syndicate on October 19, 1999.
Joe Sobran was an author and a syndicated columnist. See bio
and archives of some of his columns.
Watch Sobran's last TV appearance on YouTube.
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during the FGF Tribute to Joe Sobran in December 2009.
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