Lecture #5: The Proper Role of the Judiciary
Jeffersonian Prognostications
Let us begin this lecture with some riveting observations and prognostications from Thomas
Jefferson:
“Our government is now taking so steady a course as to show by what road it will pass to
destruction, to-wit: by consolidation first, and then corruption, its necessary consequence.
The engine of consolidation will be the federal judiciary; the two other branches, the
corrupting and corrupted instruments.”1
“It has long, however, been my opinion, and I have never shrunk from its expression,...
that the germ of dissolution of our federal government is in the constitution of the federal
judiciary; an irresponsible body, (for impeachment is scarcely a scare-crow,) working
like gravity by night and by day, gaining a little today and a little tomorrow, and
advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be
usurped from the States, and the government of all be consolidated into one. To this I am
opposed; because, when all government, domestic and foreign, in little as in great things,
shall be drawn to Washington as the center of all power, it will render powerless the
checks provided of one government on another, and will become as venal and oppressive
as the government from which we separated.”2
[In other words, he predicted that the U.S. Supreme Court would destroy the idea
of vertical checks and balances (i.e. federalism) which Jefferson thought to be a
critical feature of our federal structure in preserving liberty. As one considers the
present day political impotency of the states relative to the federal government,
one can see that he was right.]
"At the establishment of our constitutions, the judiciary bodies were supposed to be the
most helpless and harmless members of the government. Experience, however, soon
showed in what way they were to become the most dangerous; that the insufficiency of
the means provided for their removal gave them a freehold and irresponsibility in office;
that their decisions, seeming to concern individual suitors only, pass silent and unheeded
by the public at large; that these decisions, nevertheless, become law by precedent,
sapping, by little and little the foundations of the constitution, and working its change by
construction, before any one has perceived that that invisible and helpless worm has been
busily employed in consuming its substance. In truth, man is not made to be trusted for
life, if secured against all liability to account."3 (emphasis added)
1
Letter to Nathaniel Macon, 1821, Jefferson Cyclopedia Quote #1162, Thomas Jefferson,
Works 7:223. Reproduced at:
http://etext.lib.virginia.edu/etcbin/foleyx-browse?id=Centralization
2
Letter from Thomas Jefferson to Charles Hammond, August 18, 1821, Works 7:216;
reproduced at “www.constitution.org/tj/jeff15/txt”, pp.331-32.
3
Thomas Jefferson, to M. Coray, 10/31/1823; Works 7:322; Jefferson Cyclopedia Quotation
#4184. Reproduced at: http://etext.lib.virginia.edu/etcbin/foley-entry?id=JCE4184
1
"...[I]t would be a dangerous delusion were a confidence in the men of our choice to
silence our fears for the safety of our rights....confidence is everywhere the parent of
despotism [–] free government is founded in jealousy, and not in confidence; it is
jealousy and not confidence which prescribes limited constitutions, to bind down those
whom we are obligated to trust with power....our Constitution has accordingly fixed the
limits to which, and no further, our confidence may go....In questions of power, then, let
no more be heard of confidence in man, but bind him down from mischief by the chains
of the Constitution."4 (emphasis added)
Federalist #78 – The Proper Role Of Judges
Perhaps one of the most misunderstood aspects of constitutional law is the proper role of judges
in our constitutional system. As mentioned earlier, Alexander Hamilton is credited with an
expansionist view of delegated federal authority under the Constitution. However, one gets the
exact opposite impression in reading those parts of the Federalist Papers which are ascribed to
him. Hamilton’s Federalist #78 is very instructive as to what we should expect from the federal
judiciary. I will excerpt several paragraphs of it with personal comments and/or supporting
quotes interspersed throughout in brackets.
Paragraph 6 says that the purpose of the judiciary is “to secure a steady, upright, and impartial
administration of the laws.”
[I think the “Steadiness” of which Hamilton spoke would be impossible if judges were to
exercise their own wills contrary to what is said below.]
Paragraph 7 says: “The judiciary...has...no direction either of the strength or of the wealth of the
society; and can take no active resolution whatever. It may truly be said to have neither FORCE
nor WILL, but merely judgment.”
[It seems to me the three operative words there apply to the 3 branches of government. In
other words, the Executive Branch has the force, Congress the will and the Judiciary,
judgment.]
Paragraph 9 states that the duty of the courts of justice “must be to declare all acts contrary to the
manifest tenor of the Constitution void. Without this, all the reservations of particular rights or
privileges would amount to nothing.”
[In other words, the concept of a limited national government would fail and the national
government would eventually usurp all power unto itself which seems to be exactly what
we have seen over the past eighty years or so. There have been a few recent cases which
show potential prospects for reversing this trend, but the various case holdings that have
done this were usually only bare-majority five-to-four decisions which are very tenuous.
Depending on who dies or retires next on the court, and who that person’s replacement is,
will make a big difference in how the future unfolds in this regard.]
Thomas Jefferson, Draft of Kentucky Resolutions of 1798; Subpart: “Resolutions Relative to
the Alien and Sedition laws; Resolution (7), Works 9:470-71, reproduced at
“www.constitution.org/tj/jeff17.txt”, pp.388-89.
4
2
Paragraph 11 says: “There is no position which depends on clearer principles, than that every act
of a delegated authority, contrary to the tenor of the commission under which it is exercised, is
void. No legislative act, therefore, contrary to the Constitution can be valid.”
[And who has the authority to say so? From paragraphs 9,12,16 & 18, Hamilton said the
courts have that authority.]
Paragraph 12 says: “...the courts were designed to be an intermediate body between the people
and the legislature, in order, among other things, to keep the latter [i.e. Congress] within the
limits assigned to their authority.”
According to Joseph Story:
“The judicial power was defined in broad terms but nowhere was it stated that the United
States courts should have the power to pass on the constitutionality of laws. But the
debates of the convention indicate that leading delegates, such as King, Gerry, Wilson,
Gouverneur Morris, Madison, Mason, and Martin, expected this power to be exercised by
the courts nevertheless.”5
And, as we can clearly see from paragraph 12 of Federalist #78, so did Hamilton.
In asserting that the Supreme Court was the final arbiter of constitutional matters, Joseph Story
said:
“Let us examine the grounds, on which this doctrine is maintained. The constitution
declares, ([in] Art. 6,) that ‘This constitution, and the laws of the United States, which
shall be made in pursuance thereof, and all treaties, Etc. shall be the supreme law of the
land.’ [Back to Story:] It also declares, ([in] Art. 3,) that ‘The judicial power shall extend
to all cases in law and equity, arising under this constitution, the laws of the United States
and treaties made, and which shall be made under their authority.’ [Story continued:] It
further declares, ([in] Art. 3,) that the judicial power of the United States ‘shall be vested
in one Supreme Court, and in such inferior courts, as the congress may, from time to
time, ordain and establish.’ Here then, [Story said,] we have express, and determinate
provisions upon the very subject. Nothing is imperfect, and nothing is left to implication.
The constitution is the supreme law; the judicial power extends to all cases arising in law
and equity under it; and the courts of the United States are, and, in the last resort, the
Supreme Court of the United States is, to be vested with this judicial power.”6
In further support of his position, Story explained that the same pattern had been recognized
under the Articles of Confederation which preceded the Constitution, and that the state judicial
formats before the Constitution also recognized finality of interpretation in their respective state
supreme courts. Then he said:
5
American Constitutional History, Erik McKinley Erikson, published by W.W. Norton & Co,
1933, p.204.
6
Joseph Story, Commentaries on the Constitution, Carolina Academic Press, Republished 1987,
Sec. 166, p.125.
3
“Under such circumstances, is it not most natural to presume, that the same rule was
intended to be applied to the constitution of the United States? And when we find, that
the judicial department of the United States is actually entrusted with a like power, is it
not an irresistible presumption, that it had the same object, and was to have the same
universally conclusive effect?....
“That this view of the constitution was taken by its framers and friends, and was
submitted to the people before its adoption, is positively certain. The same doctrine was
constantly avowed in the state conventions, called to ratify the constitution. With some
persons it formed a strong objection to the constitution; with others it was deemed vital to
its existence and value. So, that it is indisputable, that the constitution was adopted under
a full knowledge of this exposition of the grant of power to the judicial department.
“This is not all. The constitution has now been in full operation more than forty years;
and during this period the Supreme Court has constantly exercised this power of final
interpretation....Their decisions upon these grave questions have never been repudiated,
or impaired by congress. No state has ever deliberately, or forcibly resisted the execution
of the judgments founded upon them....During the same period, eleven states have been
admitted into the Union, under a full persuasion, that the same power would be exerted
over them....for forty years three fourths of all the states composing the Union have
expressly assented to, or silently approved, this construction of the constitution, and have
resisted every effort to restrict, or alter it.””7]
Returning to Federalist #78, Paragraph 13 says: “The interpretation of the laws is the proper and
peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as
a fundamental law.”[i.e. Binding on all -- even themselves, which we will see in next paragraph.
And when there is a conflict between the Constitution and anything else, paragraph 13 says: “the
Constitution ought to be preferred to the statute, the intention of the people to the intention of
their agents.”
[The distinction between “the intention of the people” on the one hand and “the intention
of their agents” on the other, is clarified in the next paragraph.
Paragraph 14 indicates that the “will of the people” can be considered in two respects, namely
(1) the will of the people who originally adopted the Constitution and (2) any subsequent
contrary will of the people expressed by their agents through legislative acts. He said that the
former is more fundamental than the latter and should prevail. He also said that this original will
is not only superior to the legislature, but also the judiciary – inferring that when the court
“interprets” the Constitution contrary to this original will of the people, the judges are violating
their public trust.
Paragraph 16 says: “...whenever a particular statute contravenes the Constitution, it will be the
duty of the judicial tribunals to adhere to the latter and disregard the former.”
Paragraph 17 is a little more difficult to understand. It says: “It can be of no weight to say that
7
Id. Sections 172,174 & 175, pp. 130-33.
4
the courts, on the pretense of a repugnancy, may substitute their own pleasure to the
constitutional intentions of the legislature....The courts must declare the sense of the law; and if
they should be disposed to exercise WILL instead of JUDGMENT, the consequence would
equally be the substitution of their pleasure to that of the legislative body. The observation, if it
prove any thing, would prove that there ought to be no judges distinct from that body.”
[In Federalist ##78 & 81, Hamilton argued for judicial independence since it was
expected that the judiciary’s role would not be to exercise its own will like that of the
legislature, but rather, would only exercise judgment in impartially applying the law as
per the intents (or wills) of the legislature. Of course, consistent with his prior discourse,
this pre-supposes that the legislature is operating within the bounds of its delegated
authority. That is why in paragraph 17 he used the phrase: “constitutional intentions of
the legislature.”
[Paraphrasing paragraph 17, if the judiciary is going to exercise its own will rather than
enforce somebody else’s, then let it be a part of the legislature and be subject to the
normal democratic forces that they face. In other words, let them be subject to the
regular election cycles that the legislators face and thereby face the potential political
wrath of angry voters when they overstep their bounds.
The Supreme Court agreed with Hamilton on this principle early on when it said:
“Judicial power, as contradistinguished from the power of the laws, has no existence.
Courts are the mere instruments of the law, and can will nothing. When they are said to
exercise a discretion, it is a mere legal discretion, a discretion to be exercised in
discerning the course prescribed by law; and, when that is discerned, it is the duty of the
Court to follow it. 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.”8]
Paragraph 18 states: “If, then, the courts of justice are to be considered as the bulwarks of a
limited Constitution against legislative encroachments, this consideration will afford a strong
argument for the permanent tenure of judicial offices, since nothing will contribute so much as
this to that independent spirit in the judges which must be essential to the faithful performance of
so arduous a duty.”
Paragraph 19 adds: “This independence of the judges is equally requisite to guard the
Constitution and the rights of individuals...”
So, in other words, we give our federal judges life tenure to give them a backbone in standing up
to the legislature when it either (1) tries to exercise powers not given to it in the Constitution, or
(2) tries to trample on the individual rights held by the people. The clear implication of this
statement is that if they are not willing to serve this indispensable role for the people, then we
should do away with the concept of life tenure for the judiciary. They were certainly not given
life tenure to become public policy makers.
8
Osborn v. U.S. Bank, 22 U.S. 738, at 866 (1824).
5
Paragraph 20 states: “Until the people have, by some solemn and authoritative act, annulled or
changed the established form [i.e. the Constitution and the form of government it created], it is
binding upon themselves collectively, as well as individually; and no presumption, or even
knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to
such an act.”
[From the totality of this chapter #78, and all others in the Federalist Papers taken
together, it is inconceivable that the founders would have sanctioned the possibility of the
Constitution being changed under the guise of “interpretation” by the judiciary. The
judiciary had no license to turn the Constitution into what has euphemistically been
called a “living document” — they were not installed for the purpose of changing what
was supposed to be the immutable legal base for our republic. If changes were to occur,
they were only to occur through the formal amendment process requiring strict supermajorities at both the national and state levels. Most certainly, such changes were not to
be allowed at the hands of only five or more people creating a majority block on the
Supreme Court.]
Paragraph 24 says: “To avoid an arbitrary discretion in the courts, it is indispensable that they
should be bound down by strict rules and precedents, which serve to define and point out their
duty in every particular case that comes before them...”
In legal parlance this is called stare decisis. In this regard, Joseph Story commented:
“...Ours is emphatically a government of laws, and not of men; and judicial decisions of
the highest tribunal, by the known course of the common law, are considered, as
establishing the true construction of the laws, which are brought into controversy before
it. The case is not alone considered as decided and settled; but the principles of the
decision are held, as precedents and authority, to bind future cases of the same nature.
This is the constant practice under our whole system of jurisprudence. Our ancestors
brought it with them, when they first emigrated to this country; and it is, and always has
been considered, as the great security of our rights, our liberties, and our property. It is
on this account, that our law is justly deemed certain, and founded in permanent
principles, and not dependent upon the caprice, or will of particular judges. A more
alarming doctrine could not be promulgated by any American court, than that it was at
liberty to disregard all former rules and decisions, and to decide for itself, without
reference to the settled course of antecedent principles.
“This known course of proceeding, this settled habit of thinking, this conclusive effect of
judicial adjudications, was in the full view of the framers of the constitution. It was
recognized, and enforced in every state in the Union; and a departure from it would have
been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere
discretion, and to the abandonment of all the just checks upon judicial authority.”9
So he viewed stare decisis as a type of judicial check over itself.
9
Joseph Story, Commentaries on the Constitution, Carolina Academic Press, Republished 1987,
Sections 167-68, pp.126-27.
6
The Judiciary’s Departure From Those Principles
In discussing our departure from these principles, David Lowenthal in his book, No Liberty For
License, states:
“For it is what we want--not what reasoning from a common and objective constitutional
document requires, that has become the new first principle of judicial interpretation....
“[This] novel principle...is an invitation to chaos and the end of the American
constitutional system. For if the judges, in the constitutional opinions they render, are
merely stating what they think they themselves or the country want, they have become
makers of policy and ought to be elected for limited terms, like all other policy-makers,
to insure their accountability to the will of the people. The only alternative...held that a
judge, by the very definition of his function, takes a law he did not make and applies it to
particular situations in the manner the lawmaker intended and indicated by the wording
of the law....This view allows for reasoning about what the founders intended, about their
meaning, about their political philosophy, about the intrinsic needs of republican
government--with all the difficulties this often entails--but without ever surrendering the
principle that it is their meaning, rather than our ‘wants,’ that must bind judges....
“The judge is the intelligent mouthpiece of the original legislator, nothing more....[H]e is
not the savior of society, armed with a discretionary prerogative, unbound by law, to alter
even the supreme law of the land as he wishes. According to this understanding, the
popular notion of the Constitution as a supreme, overarching, and fixed basic law may be
preserved; interpretations of the law have a common objective ground that is in principle
capable of being discovered; the rule of precedent may serve as a saving lifeline between
the founders’ intentions and all later generations. Absent this understanding, the
constitutional links binding the country together are bound to dissolve, with
interpretations of law becoming variable, chaotic, idiosyncratic, overbearing, and
tyrannical--or merely subject to fashion and temporary popular whim.
“The unspoken premise of the new libertarian philosophy is that it constitutes an
intellectual underpinning for liberal democracy vastly superior to that of the founders and
framers. This view is rarely stated by sitting judges in their written opinions: they know
admitting publicly to changing the Constitution through interpretation would arouse a
public furor.”10
Constitutional Principles Were Supposed To Be Fundamental And Permanent
Chief Justice John Marshall’s words in Marbury v. Madison are instructive here:
“That the people have an original right to establish, for their future government, such
principles as, in their opinion, shall most conduce to their own happiness, is the basis, on
which the whole American fabric has been erected. The exercise of this original right
[i.e. the creation and adoption of the Constitution itself] is a very great exertion; nor can
it, nor ought it to be frequently repeated. The principles, therefore, so established, are
10
David Lowenthal, No Liberty for License, Spence Publishing Co., 1997, pp. 58-59.
7
deemed fundamental. And as the authority, from which they proceed [i.e. the people], is
supreme, and can seldom act, they are designed to be permanent.”11 (emphasis added.)
In other words, all authority regarding the Constitution emanates from the people themselves
from the bottom-up and the principles contained in the Constitution are deemed to be
fundamental and permanent. Why? – Because (1) the people, through great exertion, have set
forth their desired form of government – and the limits applying thereto – under the Constitution
and (2) the formal democratic amendment process set forth in the Constitution itself is so
difficult that it cannot occur very often. This implies that nobody – and this includes the
judiciary – is allowed to tinker with those principles other than the people themselves as a
collective and democratic super-majoritarian whole.
In George Washington’s farewell address, he admonished us that the Constitution must be
“sacredly maintained.” Said he:
“The basis of our political systems is the right of the people to make and to alter their
constitutions of government. But the Constitution which at any time exists, till changed
by an explicit and authentic act of the whole people, is sacredly obligatory upon
all.”(emphasis added)
“It is important…that the habits of thinking in a free country should inspire caution in
those entrusted with its administration, to confine themselves within their respective
constitutional spheres, avoiding in the exercise of the powers of one department to
encroach upon another. The spirit of encroachment tends to consolidate the powers of
all the departments in one, and thus to create, whatever the form of government, a real
despotism….If, in the opinion of the people, the distribution or modification of the
constitutional powers be in any particular wrong, let it be corrected by an amendment in
the way which the Constitution designates. But let there be no change by usurpation;
though this may in one instance be the instrument of good, it is the customary weapon by
which free governments are destroyed.”12 (emphasis added)
Judges should try to interpret the document in a manner that is consistent with the intents of the
drafters. Otherwise from generation to generation the meaning will change radically when it was
supposed to be relatively immutable. If we don't try to tie our interpretation to the original
intent, as best we can decipher it, then we will be governed by a "rule of men" rather than a "rule
of law". The document will simply mean whatever a majority of 5 people on the Supreme Court
says it means. Rather than it being a "living document" it will become a "dead document" since
the clear language and intents represented therein will be freely changeable at the fancy of 5
people.
If we allow this to happen, then we should stop the charade and stop using the words
"constitutional" and "unconstitutional" and replace them with more accurate descriptors like
"Supreme Court-able" and "Un-Supreme Court-able."
11
12
Marbury v. Madison, 5 U.S. 137 at 176 (1803).
Reproduced at: www.yale.edu/lawweb/avalon/washing.htm
8
How Should The Constitution Be Interpreted?
Jefferson warned:
"Our peculiar security is in possession of a written Constitution. Let us not make it a
blank paper by construction [interpretation]."13
"On every question of construction [of the Constitution] let us carry ourselves back to the
time when the Constitution was adopted, recollect the spirit manifested in the debates,
and instead of trying what meaning may be squeezed out of the text, or intended against
it, conform to the probable one in which it was passed."14
Lincoln said:
"The principles of Jefferson are the definitions and axioms of free society. And yet they
are denied, and evaded, with no small show of success....Soberly, it is now no child's play
to save the principles of Jefferson from total overthrow in this nation."15
William Blackstone:
“For it is an established rule to abide by former precedents, where the same points come
again in litigation: as well to keep the scale of justice even and steady, and not liable to
waver with every new judge’s opinion; as also because the law in that case being
solemnly declared and determined, what before was uncertain, and perhaps indifferent, is
now become a permanent rule, which it is not in the breast of any subsequent judge to
alter or vary according to his private sentiments: he being sworn to determine, not
according to his own private judgment, but according to the known laws and customs of
the land; not delegated to pronounce a new law, but to maintain and expound the old
one.”16
Gary McDowell said:
"Interpretation is no easy business....'The use of words,' James Madison once noted 'is to
express ideas....But no language is so copious as to supply words and phrases for every
complex idea, or so correct as not to include many [words] equivocally denoting different
ideas. Hence it must happen, that however accurately objects may be discriminated in
themselves, and however accurately the discrimination may be considered, the definition
of them may be rendered inaccurate by the inaccuracy of the terms in which they are
13
Letter to William Cory Nicholas, September 7, 1803, reproduced at
“www.constitution.org/tj/jeff10.txt”, p.419.
14
Thomas Jefferson, to Justice William Johnson, 1823, ME 15:449; Reproduced at:
http://etext.virginia.edu/etcbin/ot2www-jeffquot?specfile=/web/data/jefferson/quotations/www/jeffquot.o2w
15
Abraham Lincoln, 4/6/1859; Collected Works, 3:375.
16
Blackstone, Introduction, at 69. Quoted in No Liberty for License, David Lowenthal, Spence
Publishing Co., (1997) pp.55-56.
9
delivered.' As a result, it is essential to sound government that interpretation of the law
not be merely the arbitrary personal predilections of the judge. In order to rise above
being arbitrary, legal interpretation must have some moorings outside the judge himself.
To allow a judge to make the words 'mean nothing at all, or what he pleases' [as John
Lock criticized judges for doing], would be in effect to abandon interpretation properly
understood. We would have judgments but we would no longer have law in any
meaningful sense. The Anglo-American legal tradition has always sought the necessary
mooring of interpretation in the intention that originally underlay the law in question."17
In his treatise on the Constitution published in the early years of our republic, Joseph Story
dedicated a whole chapter to the Rules of Interpretation regarding the Constitution. There he
said:
“The first and fundamental rule in the interpretation of all instruments is, to construe
them according to the sense of the terms, and the intention of the parties [who drafted
them.]”18
“...the constitution of the United States is to receive as favorable a construction, as those
of the states. Neither is to be construed alone; but each with reference to the other. Each
belongs to the same system of government; each is limited in its powers; and within the
scope of its powers each is supreme. Each, by the theory of our government, is essential
to the existence and due preservation of the powers and obligations of the other. The
destruction of either would be equally calamitous, since it would involve the ruin of that
beautiful fabric of balanced government, which has been reared with so much care and
wisdom, and in which the people have reposed their confidence, as the truest safeguard of
their civil, religious, and political liberties.”19
“The Constitution of the United States is to receive a reasonable interpretation of its
language, and its powers, keeping in view the objects and purposes, for which those
powers were conferred....[He then argued that any government must be given some
amount of discretionary powers in order to accomplish its objects and purposes. But
then, to avoid the implication that he was arguing for unlimited federal authority, he next
observed:]
“On the other hand, a rule of equal importance is, not to enlarge the construction of a
given power beyond the fair scope of its terms, merely because the restriction is
inconvenient, impolitic, or even mischievous. If it be mischievous, the power of
redressing the evil lies with the people by an exercise of the power of amendment. If
they do not choose to apply the remedy, it may fairly be presumed, that the mischief is
17
Politics and the Constitution–The Nature and Extent of Interpretation, published by the
National Legal Center for the Public Interest, 1990, pp. vii & viii.
18
Joseph Story, Commentaries on the Constitution, Carolina Academic Press, Republished 1987,
Sec. 181, p.135.
19
Id. Sec. 187, pp.138-39.
10
less than what would arise from a further extension of the power; or that it is the least of
two evils. Nor should it ever be lost sight of, that the government of the United States is
one of limited and enumerated powers; and that a departure from the true import and
sense of its powers is...the establishment of a new constitution. It is doing for the people,
what they have not chosen to do for themselves. It is usurping the functions of a
legislator, and deserting those of an expounder of the law.”20
“...the state governments would clearly retain all the rights of sovereignty, which they
before had, and which were not...exclusively delegated to the United States.”21
“...There can be no doubt, that an affirmative grant of powers in many cases will imply an
exclusion of all others. As, for instance, the constitution declares, that the powers of
congress shall extend to certain enumerated cases. This specification of particulars
evidently excludes all pretensions to a general legislative authority. Why? Because an
affirmative grant of special powers would be absurd, as well as useless, if a general
authority were intended.”22
[This sounds remarkably similar to what Madison said about how the general
welfare clause should be interpreted in Federalist #41, discussed in the prior
lecture.]
“...The constitution is not to be subject to such fluctuations. It is to have a fixed, uniform,
permanent construction. It should be, so far at least as human infirmity will allow, not be
dependent upon the passions or parties of particular times, but the same yesterday, today,
and forever.”23
“...every word employed in the constitution is to be expounded in its plain, obvious, and
common sense, unless the context furnishes some ground to control, qualify, or enlarge it.
Constitutions are not designed for metaphysical or logical subtleties, for niceties of
expression, for critical propriety, for elaborate shades of meaning, or for the exercise of
philosophical acuteness, or juridical research. They are instruments of a practical nature,
founded on the common business of human life, adapted to common wants, designed for
common use, and fitted for common understandings. The people make them; the people
adopt them; the people must be supposed to read them, with the help of common sense;
and cannot be presumed to admit in them any recondite meaning, or any extraordinary
gloss.
[The word “recondite” means obscure, concealed, or beyond the grasp of the
ordinary mind or understanding. Story continued,]
20
Id. Sections 188, 190, 192-93, pp.139-144.
21
Id. Sec. 199, pp.148-49.
22
Id. Sec. 207, p.155.
23
Id. Sec. 193, p.145.
11
“But in the next place, words, from necessary imperfection of all human language,
acquire different shades of meaning....No person can fail to remark the gradual
deflections in the meaning of words from one age to another; and so constantly is this
process going on, that the daily language of life in one generation sometimes requires the
aid of a glossary in another....We must resort then to the context....”24
[In other words, we should apply the meanings of the words used in the
Constitution as they were understood in the founding generation.]
Justice Antonin Scalia’s Views
In commenting on the judiciary’s departure from the foregoing principles, Justice Antonin
Scalia, a current member of the Supreme Court once lamented:
“What secret knowledge, one must wonder, is breathed into lawyers when they become
justices of this court?....Day by day, case by case, [this court] is busy designing a
Constitution for a country I do not recognize.”25 (emphasis added)
In dissenting against the majority opinion striking down Virginia’s all-male Virginia Military
Institute (VMI), Justice Scalia said:
“The virtue of a democratic system with a First Amendment is that it readily enables the
people, over time, to be persuaded that what they took for granted is not so, and to change
their laws accordingly. That system is destroyed if the smug assurances of each age are
removed from the democratic process and written into the Constitution. So to
counterbalance the Court's criticism of our ancestors, let me say a word in their praise:
They left us free to change. The same cannot be said of this most illiberal Court, which
has embarked on a course of inscribing one after another of the current preferences of the
society (and in some cases only the counter majoritarian preferences of the society's lawtrained elite) into our Basic Law.”26
In his dissenting opinion in Lawrence v. Texas where the U. S. Supreme Court held Texas’ antisodomy statute to be unconstitutional, Justice Scalia observed:
“What Texas has chosen to do is well within the range of traditional democratic action,
and its hand should not be stayed through the invention of a brand-new ‘constitutional
right’ by a court that is impatient of democratic change. It is indeed true that ‘later
generations can see that laws once thought necessary and proper in fact serve only to
oppress,’ ...and when that happens, later generations can repeal those laws. But it is the
premise of our system that those judgments are to be made by the people, and not
imposed by a government caste [of judges] that knows best.”27
24
Id. Sections 210-11, pp.157-59.
25
Dissenting Opinion, Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr,
518 U.S. 668, at 688 & 711 (1996).
26
Dissenting Opinion, U.S. v. Virginia, 518 U.S. 515, at 567 (1996).
27
Dissenting Opinion, Lawrence v. Texas, 123 S.Ct. 2472, (2003).
12
Common Law v. Sociological School of Jurisprudence
In order to understand how such significant changes have taken place in our country without the
people being able to see what was happening, we should know something about the sociological
school of Jurisprudence and contrast it with the Common Law.
Common Law vs. Sociological School
th
Sir Edmund Coke, a famous 17 Century English jurist, and known as the “Father of the
Common Law,” taught (in the words of Roscoe Pound) that: “it was the function of the
common law and of common-law courts to stand between the individual and oppressive
action by the state; that the courts were set up and the law existed to guard individual
interests against the encroachments of state and society….The whole (society) is to have no
right of control over the individual beyond the minimum necessary to keep the peace.
Everything else is to be left to the free contract of a free man.” 28
Pound continued: “Traditionally, the Anglo-American common law concept from Sir
Edmund Coke, Blackstone, etc. was that law was not made, it was to be discovered. Law
ultimately came from God through (1) Biblical divine revelation; (2) in pagan and heathen
cultures through God’s Romans 2:14-15 work in the hearts of heathens, and (3) through the work
of man who discovered law through reason, experience and study of the scriptures.”29
When Coke said that law “was not made” but rather, “discovered,” he was recognizing the
existence of natural law.
Often times the common law is referred to as the “unwritten law” derived from long
established custom and experience. Richard J. Maybury said: “To prevent trivial whim
and opinion from becoming law, courts had guidelines for deciding if a custom should be
law.”30
Maybury then quoted Arthur R. Hogue as saying: “Blackstone provided in his
COMMENTARIES a clear account of tests which customs should meet before they were
admitted to have the force of law….Good custom is: (1) ancient, no man can remember the
beginning of it, (2) continuous, the rights claimed under it have never been abandoned or
interrupted, (3) peaceable, supported by the common consent of those using the custom, (4)
reasonable, in the light of ‘legal’ reason, (5) certain, in the sense of being ascertainable, (6)
compulsory, it is not left to the opinion of every man whether he will obey or not, (7)
consistent, for one custom cannot contradict another custom without producing
absurdity.”31
28
29
30
31
Roscoe Pound, Spirit of the Common Law, pp.74 & 49.
Roscoe Pound, quoted by John A. Stormer, “Betrayed by the Bench,” p.76.
Richard J. Maybury, “Whatever Happened to Justice?,” p.45.
Arthur R. Hogue, Origins of the Common Law.
13
While a judge could formalize such “unwritten law” without being considered a judicial activist,
that is far different from a judge trying to change society on his own by creating new law out of
thin air.
Maybury said the common law rested upon two fundamental principles, namely, (1) people
should do all they have agreed to do, and (2) they should not encroach on other persons or
their property. He then quoted Black’s Law Dictionary in defining encroachment as
follows: “To enter by gradual steps or stealth into the possessions or rights of another; to
trespass or intrude. To gain or intrude unlawfully upon the lands, property or authority of
another.”32
Maybury also observed that the evidence consistently shows that countries that adopt those
policies do better than those that don’t.
Our founders believed in natural law and common law as exemplified by the following quote
regarding the importance of property rights.
John Adams said:
“The moment the idea is admitted into society, that property is not as sacred as the laws
of God, and that there is not a force of law and public justice to protect it, anarchy and
tyranny commence. If ‘Thou shalt not covet,’ and ‘Thou shalt not steal,’ were not
commandments from Heaven, they must be made inviolable precepts in every society,
before it can be civilized and made free.”33
Consistent with that Maybury quote, Jefferson said: “Rightful liberty is unobstructed
action according to our will within limits drawn around us by the equal rights of others. I
do not add ‘within the limits of the law’ [like John Locke did] because law is often but the
tyrant’s will, and always so when it violates the rights of the individual.”34
A modern U.S.S.C. justice expressed the same idea as follows: “My right to swing my arms and
fists around ends where your face begins.” In other words, I do not have the right to harm you
and vice versa, except, in self defense.
Roscoe Pound was the dean of the Harvard Law school from 1916 to 1936 and was one of
the principal proponents of the sociological school of jurisprudence.
He argued that the common law tradition should be discarded in America in favor of what
we would today call “social justice,” where the individual’s interests must become
subservient to the demands of the whole of society. Law was no longer to be discovered but
rather, simply made by society itself in ways it perceived to be socially good. He said: “We
are back to the state as the unchallengeable authority behind legal precepts. The state
takes the place of Jehovah handing the tablets of the law to Moses.”35
Richard J. Maybury, “Whatever Happened to Justice?,” p.35.
The Works of John Adams, Second President of the United States, Charles Francis Adams, editor (Boston: Charles
Little and James Brown, 1851), Vol. VI, p.9.
34
Quoted by Maybury, Ibid. p.76.
35
Roscoe Pound, “Law and Morals,” p. 14.
32
33
14
Balint Vazsonyi, a former refugee from Hungary first under Nazi Germany’s control and then
under Communist Russia’s control, escaped to America to eventually become a concert pianist
who toured the world in various performances. He saw the misery caused by both regimes in his
native Hungary. He loved his newly adopted country but near the end of his life, was concerned
that America was breaking loose from its original constitutional and philosophic moorings and
was drifting towards socialism which he knew had destroyed his native country. To warn
America he wrote a book entitled America’s 30 Years War – Who is Winning? In it he said the
following about “Social Justice.” This quotation is quite long so be careful to listen for the
opening quotation mark and the ending quotation mark.
QUOTE:“[The words ‘social justice’] are among the most successful deceptions
ever conceived. Ask a variety of people to define what ‘social justice’ means,
specifically, and you will get as many answers as people queried. Ask the same
person at different times and you will get different responses. All ‘definitions’ of
social justice boil down to any of the following:
(1) somebody should have the power to determine what you can have, or
(2) somebody should have the power to determine what you cannot have,
or
(3) somebody should have the power to determine what to take away from
you in order to give it to others who receive it without any obligation to
earn it.
“If millions upon millions have been deluded into searching for ‘social justice,’ it
is because ‘social justice’ displays the irresistible charm of the temptress and the
armament of the enraged avenger; because it adorns itself in intoxicating cliches
and wears the insignia of the highest institutions of learning. Like a poisonous
snake, it radiates brilliant colors. Like the poppies in The Wizard of Oz, it lulls
the mind to sleep.
“The easiest targets happen to be civilized people, who care about the fate of
others....Hayek traces the origins of the usage to German theorists and argues
persuasively that [THE WORD]‘social,’ far from adding anything, in fact drains
all nouns to which it is attached of content or meaning....
***
“Advocates of social justice point to the downtrodden, the dispossessed, the
disenfranchised. Advocates of social justice insist that, in order to demonstrate a
social conscience, a person must resolve to eliminate poverty, eliminate suffering,
and eliminate differences among people. The assumption is that society can and
will reach a state in which all its members enjoy just the right quantity and
proportion of attributes, possessions, and good fortune in relation to all other
members, and to their own expectations.
“Special attention must be focused upon the word ‘eliminate’....What are the
practical implications?
15
“In order to eliminate poverty, agreement must be reached on terminology. Poor
by what standard? Poor in Albania or Zaire is very different from poor in
Switzerland or the United States. Poverty, then, is relative, and in relative terms,
there will always be ‘poverty’ as long as some people have more and others have
less. Two possibilities arise. One is to establish the authority which will take
possession of all goods and distribute them evenly among the populace. This
would have to be a continuous process because the more gifted and more
industrious will keep accumulating more than the others. The second option is to
concede that it is all nonsense.
***
“The ultimate nonsense is the search for social justice. This is not to insult the
millions of highly respectable people who have been deluded into adopting social
justice as their goal. But the truth is, if subjected to honest scrutiny, the very
concept flies in the face of both reason and experience. Worse still is the
presumptuous implication that, were social justice possible, certain persons are
better able than others to judge what it is. (Incidentally, how does such an
implication square with the doctrine that we are all the same?)
“‘Social justice’ generally means that justice must prevail in the social sphere.
But society is in constant flux; its state undergoes constant change. Thus, if a
state of justice exists in a given minute, it is unlikely to exist in the next. There
will be either more or less justice. How do we monitor performance? What are
the measurements? Who judges the data? And, even more troubling, what of the
choice between a static and a dynamic society? Most favor a dynamic society for
obvious reasons. But a dynamic society produces variable states of social justice.
“According to the only theory in existence, to attain a satisfactory state of social
justice, social tensions – the source of dynamism – are to be eliminated (there is
that word again!). Once that is achieved, society will of course be static. We
have to work diligently, the prescription goes, to attain a state of being with no
social tensions.
“The state so characterized is known as ‘communism.’
“Unwittingly, perhaps, in many cases, but persons who advocate social justice
advocate communism. Taking social justice to its logical conclusion, nothing less
will suffice....The essence of communism is social justice – the elimination of
poverty, the elimination of suffering, the elimination of all differences that erect
walls between people. The essence of communism is the global village in which
everyone benefits equally within an interdependent and socially conscious world.
The essence of communism is the rearing of children by the village. Even
Hitler’s version, which he called ‘national socialism,’ [or “Nazi” for short] was
intended to deliver great and lasting benefits to the masses, once a few million
redundant [and perhaps, uncooperative] people were, well, eliminated.
***
16
“Social warfare clearly undermines domestic tranquility. But the even greater evil
is that it fuels discontent and induces a permanent state of hopelessness by setting
unattainable goals. And unattained they shall remain, except of course in
communism – if you believe the theory.
“Perhaps some do.
“But the rest of us need to face the fact that the Rule of Law and the Search for
Social Justice cannot exist side-by-side because social justice requires that those
who possess more of anything have it taken away from them. The Rule of Law
will not permit that. It exists to guarantee conditions in which more people can
have more liberty, more rights, more possessions. Prophets of social justice –
communists, whether by that or any other name – focus on who should have less.
Because they have nothing to give, they can only take away. First, they take away
opportunity. Next, they take away possessions. In the end, they have to take
away life itself.”36 END QUOTE.
What do you think Vaszonyi meant by the term, “Rule of law?” In the terminology we are
discussing here, I think he means the rule of the common law or the rule of natural law.
In marked contrast to Jefferson’s definition of liberty, Georg Wilhelm Hegel, a German
philosopher often quoted by Pound, believed that true freedom “is achieved only as the
partial and incomplete desires of the individual are overcome and integrated into the
unified system of the state in which the will of one is replaced by the will of all.”37
Perhaps the first question to ask regarding this Hegel quotation is this: “Exactly how will the
desires of the individual be overcome?” Just by persuasion and friendly convincing? Or by
force and even death concerning those who are most resistant to such force? After all, the latter
processes were liberally used in Russia, China, Germany, Italy, Cambodia, etc. In the latter case,
fully one fifth of the Cambodian population was executed in an attempt to effectively, in Hegel’s
words: “overcome the desires of the individual and integrate them into the unified system of the
state.”
Another thing to consider here is the subtle attempt to redefine the word “freedom.” In Hegel’s
case he tried to redefine it to mean the submission of one’s individual will to the will of all or the
“general will”—whatever that means. In his book The Road to Serfdom, Hayek observed that
the meaning ascribed to the word “freedom” has been changed in other ways and at other times
in order to sell the greater public on the supposed need for more confiscation and redistribution
of wealth—the most recent iteration of socialism. Said Hayek:
“[T]he majority of people still believe that socialism and freedom can be combined.38...
[They do not realize] that democratic socialism, the great utopia of the last few
America’s 30 Years War – Who is Winning, pp. 53-59.
Grolier Encyclopedia, quoted by John A. Stormer, “Betrayed by the Bench,” p.63.
38
Freidrich A. Hayek, The Road to Serfdom,(1944), p.35.
36
37
17
generations, is not only unachievable but that to strive for it produces something utterly
different39 – the very destruction of freedom itself40....The most effective way of making
people accept the validity of the values they are to serve is to persuade them that they
are really the same as those they have always held, but which were not properly
understood or recognized before....And the most efficient technique to this end is to use
the old words but change their meaning. Few traits of totalitarian regimes are at the
same time so confusing to the superficial observer and yet so characteristic of the
whole intellectual climate as this complete perversion of language.41...to the great
apostles of political freedom, the word [“freedom”] meant freedom from coercion,
freedom from the arbitrary power of other men, release from the ties which left the
individual no choice but obedience to the orders of a superior to whom he was attached.
The new freedom promised [by socialists], however, was to be freedom from necessity,
release from the compulsion of the circumstances which inevitably limit the range of
choice of all of us....Freedom in this sense is, of course, merely another name for power
or wealth....The demand for the new freedom was thus only another name for the old
demand for an equal distribution of wealth. But the new name gave the socialists
another word in common with the liberals, and they exploited it to the full.42...the promise
of greater freedom has become one of the most effective weapons of socialist
propaganda...”43(emphasis added)
So someone could say to you: “You believe in freedom don’t you?” “Of course!” “Well then let
me tell you what you believe….” Then if you are not confident about what that word means, you
could easily be persuaded to accept a debauched meaning of the word and support a political
program that is antithetical to freedom and liberty.
When making an argument attempting to persuade the listener to agree with one’s point of view,
it is common for the speaker to use words that evoke an immediate positive feeling in the mind
of the listener—words like freedom, justice, equality, fairness, etc. Similarly it is common for
that same speaker to use words to describe the opposing point of view which evoke immediate
negative or repulsive feelings in the mind of the listener. In the case of a discussion involving
“social justice” it might be words like selfish, mean-spirited, uncaring, greedy, etc.—words with
which few would like being associated.
So as you hear people debate something, keep an eye out for words whose meanings are being
changed or misapplied for the sake of the argument. Do not assume that you and the speaker are
ascribing the same meaning to the various words being used in the argument, and don’t agree
simply because he is using words for which you have a natural affinity.
39
Id. p.36.
40
Id. p.35.
41
Id. pp.172-73.
42
Id. pp.29-30.
43
Id. p.31.
18
Pound saw the appropriate legal goal as “transferring (law) from individual interests to
social interests. Satisfaction of human wants has been the watchword rather than general
security.”44
Pound continued: “Men are saying that material welfare is the great end to which all
institutions must be directed and by which they must be measured. Men are not asking
merely to be allowed to achieve welfare, they are asking to have welfare achieved for them
through organized society.”45
So under Pound’s sociological jurisprudence, individual property rights become expendable so
that the state can effectively rob Peter to pay Paul in order to achieve “material welfare” for
everyone regardless of their individual choices and efforts. In my opinion, as we and Europe are
currently experiencing, when a country accepts that proposition as being both moral and
constitutional, the logical extension of it is eventually national bankruptcy because there is no
politically acceptable stopping point to a program of government give-aways. Once one set of
government freebies is justified, others are sure to follow until either (1) those who constantly
push for social justice become satisfied that it has finally been achieved (which will probably
never happen) or (2) foreign and domestic lenders cower at the size of our national debt and
refuse to continue lending to our government to support all the ultimately unsustainable political
promises that were earlier made to buy votes.
This fight between natural law theorists and legal positivists, and between common law theorists
and sociological school adherents, is currently being fought out in the political sphere under
different terms—what are they? Conservatism vs Liberalism/Progressivism.
By the way, do you notice the play on words dynamic explained earlier with the use of the word
“Progressivism” or “Progressives?” Who could possibly be against “Progress?” But what really
is “Progress?”
Pound argued that this transformation from the common law to the rule of social scientists,
had to be done slowly, carefully, and in a way that people would not perceive what was
happening. The changes must be brought about in a way that gave the illusion that “in
theory the old rules stood unaltered.”46
In Pound’s words, this would occur under the “guise of interpretation.”
What does the word “guise” mean here? According to Webster’s Dictionary, it means costume,
external appearance, or pretext. In other words it is unreal, make believe, not what it appears to
be, or even deceptive in nature.
Maybury observed: “[Pound] realized that if judges tried to change the law [openly] while
men still understood the traditional views of [the common] law, people would [, in Pound’s
words:] ‘insist upon knowing where the pre-existing rule was to be found before judges
Roscoe Pound, “Law and Morals,” p.109.
Ibid.
46
Roscoe Pound, Spirit of the Common Law, p.172.
44
45
19
discovered and applied it, in what form it existed, and how and whence it derived its form
and obtained its authority. And when as a result of such inquiries, the rule seems to have
sprung full fledged from the judicial head, the assumption that the judicial function is one
of interpretation and application only leads to the conclusion that the courts are exercising
a usurped authority.’
Maybury continued: “What was Pound’s answer? How are the absolutes of the law to be
overturned? He [Pound] wrote: ‘If all legal rules are contained in immutable form in holy
writ or in twelve tables or in a code or in received corpus juris or in the custom of the
realm whose principles are authoritatively evidenced, not only must new situations be met
by deduction and analogical extension under the guise of interpretation but the inevitable
[social] changes to which all law is subject must be hidden under the same guise.’47”48
This would occur by slowly building diversionary case after diversionary case, and having
law schools only teach law students these cases rather than the principles of the common
law and the writings of those who expounded it. Virtually all the law schools around the
country followed Harvard’s lead on this. This is how I was taught in law school. We were
never required to read the entire Constitution or any of the writings—like the Federalist
Papers —of our founders concerning the theory behind it.
Instead, we were exposed to only a handful of early U.S. Supreme Court cases dealing with
Constitutional interpretation and then for the rest of the time spent in my year-long
Constitutional Law class we studied cases from the early 1900’s onward when judicial activism
became the judicial rage and judges started departing from what the framers of the Constitution
intended and started substituting their own personal judgment as to what they thought the law
should, and should not, do or be.
So in other words, all the hundreds of years of Common Law case precedents and all the
expositions of Constitutional principles by the framers in such writings as the Federalist Papers,
were largely ignored by the law professors and the students were forced to focus on all the
diversionary cases that changed things.
Effectively it would be like somebody demanding that you ignore the elephant in the corner of
the room so that you would only concentrate on the dancing monkey on the law professor’s
shoulders. Roscoe Pound was very successful at changing the law in such a way as to avoid
serious resistance.
Stringing the diversionary cases together into a body of more recent case precedents, the courts
would then say they were honoring the notion of stare decisis, by following the diversionary
body of case precedent instead of following the older and far larger established body of Common
Law case precedent. So just like Roscoe Pound advised, the changes were brought about in a
way that gave the illusion that “in theory the old rules stood unaltered”—or in other words, that
the diversionary body of case precedent should not later be ignored lest we violate the timehonored notion of stare decisis.
47
48
Roscoe Pound, Spirit of the Common Law, p.172.
John A. Stormer, “Betrayed by the Bench,” p.77.
20
When such legal changes can be done in small incremental steps, society as a whole will not be
able to perceive what is happening and if someone were to raise a warning call, those doing the
changing could easily deny anything is happening on a grand scale while they continue to heap
straw after straw of legal and philosophical change upon the camel’s back until so many
cumulative changes have occurred and society has become so used to them, it will be almost
impossible to ever reverse course to repair the damage that was done. Anybody attempting to
return the way we came will be accused of “turning back the clock of progress,” “extremists,”
“radicals,” “heartless,” “uncaring,” etc. And this is exactly where we are today.
What do you think Roscoe Pound meant by the term “analogical extension?” That means the use
of analogies.
Analogies are quite often used in the law. Analogies relate something that is known to
something that is unknown in an attempt to better understand that unknown.
One should carefully examine both the similarities and differences between the two things
compared -- an analogy is weak reason if differences predominate.
Generating competing, yet plausible, analogies tend to weaken the author's analogies and hence,
his/her argument.
For example, what analogies could be used with respect to the poor? In 18th century Europe,
economists analogized the poor to grass. It seems the more you cut your lawn, the more
vigorously it tends to grow. Based upon this analogy, poorer regions were taxed more heavily
than wealthy regions in hopes of stimulating economic growth.49
By contrast how might the modern-day political left and right analogize the poor? Those on the
left might use zucchini as an appropriate analogy. As long as zucchini is given a good growing
environment (plenty of water, nutrients, good soil, space and no pruning) it will naturally
produce abundantly. Zucchini is so productive that if you have more than one plant in your
garden, you will probably end up giving away lots of zucchini to your neighbors since the plants
are absolutely prolific once they start producing. The left might similarly argue that if we give
the poor everything they want and need through the welfare system to improve their growing
environment, they will naturally become very productive citizens providing not only for their
own needs, but providing excess enabling them to help others.
Those on the right might choose tomatoes as the more appropriate analogy. Tomatoes have to be
treated differently than zucchini in order to maximize their productivity. Not only must they be
given good soil, nutrients and water, but they must also be pruned back in a certain way lest all
of the plant's strength be directed to producing leaves and greenery rather than tomatoes. In
addition, after the plants have produced lots of green tomatoes, water must be cut off from the
plant in order for the fruits to ripen before the first frost. In other words, the plant cannot have
everything just the way it wants. It must be sculpted and stressed by outside forces in order to
achieve maximum productivity.
49
Charles Adams, For Good or for Evil, the History of Taxation, p.228.
21
Using this analogy, those on the right might argue that the poor should not be coddled by the
welfare system but rather, should be subjected to the natural outside pressures of the free market
place. If mandatory social safety nets are always in place to catch them when they fail, they will
have little natural incentive to succeed on their own but will develop a damaging dependence
instead of independence. If they are subjected to the natural pains of failure, they will probably
learn from their past mistakes and be less inclined to make similar mistakes in the future. They
will more likely become producers rather than just takers through the path of least resistance (i.e.
the welfare system). Hence, the Republicans successfully instituted a five-year cumulative limit
on the eligibility for federal welfare -- in other words, they changed the law to legally cut off the
water to the tomatoes after five years. However, I read something recently that led me to believe
that five-year limit has since been repealed.
Which, if any of these analogies is most appropriate? Maybe none of them is. Maybe there is a
better analogy to be used. Nevertheless, one should be able to see that just because somebody is
able to come up with an analogy does not necessarily mean that the analogy fits appropriately
and that you should be convinced. Depending upon the analogy being used, one can argue for
almost anything.
In closing, I think the foregoing contain some very interesting and important things to ponder. I
hope you are willing to consider and pursue these things a little more deeply over time.
Conclusion
Jefferson correctly predicted the judicial destruction of federalism. That would not have
happened had our federal judges stayed true to their proper roles in our constitutional scheme as
explained by Hamilton in Federalist #78, Joseph Story in his constitutional treatise, and the early
Supreme Court itself in its holdings.
The proper role of a judge is to exercise judgment in applying the law as per the intents of those
who created it, to the facts and controversies before his court, rather than imposing his own
personal will regarding the enunciation of new public policy.
Constitutional principles were supposed to be fundamental and permanent because (1) they
derive from the will of the people themselves, and (2) their will cannot be changed very easily
because of the difficult mechanism for change purposefully engineered into the amendment
process.
The courts were not given the power to change those principles on personal whims. When the
Constitution was to be interpreted and applied, rather than confining themselves to the original
intents behind it, activist courts discarded them and became super-legislators in determining
matters of public policy.
However, as discussed in the prior chapter, this is very dangerous for it tends to generate deepseated frustrations and angers among those who perceive themselves as becoming permanent
losers on the various issues. This is particularly true when the Supreme Court trumps ordinary
22
democracy with semi-permanent pronouncements of constitutional rights and/or mandates on the
various governmental units. This perpetuates a “rule of men” rather than the “rule of law” since
it violates the compact theory of government which emanates bottom-up from the people, rather
than the top-down from the courts.
Using a very gradualist approach--so as not to arouse a public backlash--Harvard’s sociological
school of jurisprudence eventually won out over the Common Law causing the bulk of modern
law students to accept with little question the supposed propriety of an activist Supreme Court
exercising its own will in making the U.S. Constitution into what has euphemistically been called
“a living document.”
Rather than the Court being effectively constrained by the Constitution, as was originally
intended, the Constitution has effectively become a mere puppet in the Court’s hands forced to
say whatever a majority of the puppeteers want it to say for the purpose of promoting their
personal notions of “social justice, etc.”
In the words of Justice Clarence Thomas, whom I admire greatly, “there are really only two ways
to interpret the Constitution—[either (1)] try to discern as best we can what the framers intended,
or (2) make it up [as we go.]” (Wall Street Journal, October 20, 2008.)
In my opinion, he tries to take the former, and I think, correct approach. But over the years as a
majority of our modern Justices have taken the latter and what I think is an incorrect approach,
there has been an unending assault on individual property rights, which the Court has readily
allowed our federal Congress to plunder for the sake of satisfying the growing socialistic desires
of society.
In future lectures, I will show how the U. S. Supreme Court has managed to accomplish such
radical changes in our original constitutional form of government while most of us were asleep.
My next lecture will discuss the Court’s misinterpretation of the 14th Amendment.
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