A Defining Moment, A Striking Question... Constitutionality

October 9, 2005

On September 17th we celebrated Constitution Day and what a noted occasion that was and should be! President George W. Bush signed a bill on December 8th, 2004 (public law 108-447) which designates every September 17th as Constitution Day. The ultimate strength of the U.S. Constitution is that it not only establishes a government, but it establishes a government which, to use Thomas Jefferson's words, can "govern itself." In other words, the document not only lets all people know the limits of the government's power, but, the system of checks and balances that it has created ensures that these limits will be obeyed. This system is now being tested. Currently, we are facing a defining moment in history.

The question of judicial supremacy and a sharp focus on constitutionalism appears to be on the cutting edge of an intense dialogue on the national scene today. A true balance of power between the legislative, executive and judicial branches is the focus within this dialogue. And the late Chief Justice William H. Rehnquist knew the significance of a true balance, constitutionally speaking. It was his judicial philosophy that an emphasis on the essentials of Constitutionalism, as a way of life, is necessary and called for if we are to retain our constitutionally guaranteed freedoms. And that is so much a part of the Rehnquist legacy.

The US Constitution styles itself the "supreme law of the land." Courts have interpreted this phrase to mean that when laws (including state constitutions) have been passed by state legislatures, or laws by the US Congress, are found to conflict with the federal Constitution, these laws are null and have no effect. In fact, decisions by the Supreme Court over the course of two centuries, with recent exceptions, have repeatedly confirmed and strengthened the doctrine of Constitutional supremacy.

Final political and governmental authority under the Constitution is vested in the American electorate. It IS the electorate, NOT the court, who can change the fundamental law by amending the Constitution. It has been said by some that over the last fifty years, the US Supreme Court has become a permanent constitutional convention in that five appointed judges have rewritten the meaning of the Constitution. We are reminded of the statement by Abraham Lincoln: "Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties."

The long, difficult process of amending the Constitution with its requirements for two-thirds majorities in Congress and for three-fourth of the state to concur was designed to make changing the Constitution difficult, but doable. It is this process that is called for in our Constitution. It is a long process but truly that is the only process whereby the true will of the people can be heard and felt.

The Constitution is written to protect the rights of the minority against the will of the majority and the rights of the majority against the whim of the court. Without the Constitution and the Bill of Rights, the will of the majority would be imposed on the minority. The American Founders understood this and rejected democracy in favor of a constitutional republic. Our republic is a unique design of the carefully balanced executive, legislative and judicial branches. The three branches of government were NOT designed to be "separate but equal" branches but three carefully balanced branches, the weakest of which is the judicial branch.

They were to function together so that the will of the majority could not overturn constitutional guarantees. The Founders were concerned about the power of an unchecked court so they put limits on its power. The Supreme Court's constitutional charge is to rule on the letter and the intent of the Constitution.

The amendment process, not the court system, is the original intent process for expressing the will of the people. We have seen the Supreme Court, by a 5 to 4 vote, change things around. If five justices decide we cannot say "one nation under God," or that private property is subject to confiscation by eminent domain or we cannot pray at graduation, and cannot criticize politicians with campaign adds just before an election, then we, as a people, lose those rights.

And, but the same logic, if they were to decide that child pornography on the Internet is protected by free speech, unlike prayer and political speech, it is THAT, then, which becomes the law of the land? This, as we see it, is a modern form of a power grab by the Court and a break from our great traditions in American history.

Chief Justice John Roberts simply, but eloquently, stated a defining principle, when he said "Someone asked me, 'Are you going to be on the side of the little guy,' and you obviously want to give an immediate answer, but as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win because my obligation is to the Constitution. That's the oath. The oath is to uphold the Constitution and laws of the United States, and that's what I would do."

Constitution Day is a day for all Americans to appreciate this great document of freedom. We conclude by asking a sharply focused question: if the Constitution does not mean what it says, and as the courts move us further and further from the original intent of the Constitution, then what protects the rights of the will of ALL of the people of whatever persuasion? The answer to this striking question will determine the course of history for Americans of this generation and of generations to come. William H. Rehnquist understood the significance of this question and so should we and so should the Senate of the United States. That is how we see it FROM OUR PERSPECTIVE.