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The Supreme Court's Unconstitutional Constitutional Amendments

An end run around the American people

June 2014

It's a cumbersome process, amending the U.S. Constitution the proper way. The Supreme Court has found another way: changing the meaning of the Constitution without changing the words – which bypasses the constitutional process. Congress has concurred by its irresolute silence, but the court's irregular constitutional amendments are probably unconstitutional and certainly undemocratic. The court's back-door amendments represent a tyrannical rule of men, not of law, and the practice must be prohibited by Congress.
The U.S. Constitution has been formally amended 27 times in its 225 years' history. It should perhaps have been amended 100 times, to stay up-to-date with changing needs. But a successful amendment is difficult to achieve under the procedure required by the Constitution itself, in the end requiring approval by 38 (three-quarters) of the states. So needed clarifications and updates of the 225-year old document have not been made, and the meaning of the Constitution to our modern society has become increasingly unclear and problematical.

As with every written document, the essence of the Constitution lies behind the strings of words and phrases that make up its text: it lies in the meaning of this text. When we amend the Constitution, we alter or add text in order to change its meaning, or to add new meaning to it. And just as amending the text of the Constitution changes its meaning, changing the meaning of the Constitution's text without amending the text obtains the same result: it is in effect an amendment of the Constitution. When a federal court declares that the text of the Constitution no longer means that which was intended by the authors, or that which was previously understood by the same court and by the people to be its meaning, the court is carrying out an amendment of the Constitution, an amendment not foreseen or authorized by the Constitution.

Nonetheless, the U.S. Supreme Court has, over the years, felt more and more free to amend the Constitution by changing its meaning. In defense of this practice, the court has resorted to the implausible explanation that the Constitution is so flexible that its meaning is entirely under the court's control, and is largely independent of its actual text. A current view held by several of the court's justices is that they should be guided by their own view of the purported broad "democratic purpose" of the Constitution, and that they are free to apply this personal view of purpose to constitutional interpretation in order to reach the outcome that best comports with their personal sense of a desirable and "democratic" result. Justice Breyer has been – in books, articles, and speeches – a particularly active proponent of this view. He calls his idea, in which the text of the law must yield to the personal interpretive liberties of the justices, "Active liberty." I call it "Rule of men, not of law," which is the central characteristic of tyranny and the bane of democracy.

The idea that the justices of the Supreme Court should enjoy the "liberty" of superseding the text of the Constitution in favor of their personal notions of what the Constitution ought to say, suffers from fatal flaws that make it a serious threat to democracy in the U.S.

First; the notion of a guiding "democratic purpose" behind the Constitution is an unhistorical myth that ranks with the story of George Washington chopping down the cherry tree, though it is far more insidious. Supporters of Breyer's "woozy" theory of constitutional interpretation claim support from the principles enunciated in the Constitution's preamble. They find here such phrases as "in Order to ... establish Justice, ... promote the general Welfare, and secure the Blessings of Liberty ...," etc, and they conclude that whatever, in their minds, would serve to promote Justice, Welfare, or Liberty must be the meaning of the Constitution. But these principles were also the foundation of Lenin's Soviet state and Mao's communistic China. These principles in themselves are meaningless – their interpretation must be specified, and the U.S. Constitution does so in its specific articles and sections. It is here, not in the fine but fuzzy language of the Preamble, that the court must find guidance. Far from promoting "democracy" or "democratic" rights (words found neither in the Constitution nor in the Declaration of Independence) the principles behind the U.S. Constitution were above all the prevention of tyranny and maintaining the rights of the states; the founders' enthusiasm for democracy was very limited, almost to the point of aversion. Our concern for what we today consider democratic practices and rights developed later in our history, and did not much influence the writing of the Constitution, including its first ten amendments, the so-called "Bill of Rights".

Second; the Breyer doctrine of actively taking liberties with the Constitution is a perversion of the more reasonable jurisprudential doctrine that the outcome of a judicial ruling must be just. In considering his judgement in a case, a judge is right to consider the outcome of his decision, to the extent that an injustice does not result from the decision. This principle guards against unintended and unjust consequences of the law, since no law can be made to fit equally every contingency. But the Supreme Court's believers in taking active liberties have taken the principle of "considering the outcome" to the absurd extreme – for them it appears that the Constitution can say what it will, they will decide constitutional cases solely on the basis of what they see as a desirable outcome; then, having decided, they appeal to the "principles" of the Constitution for support. In this, they are basing their decision on their personal proclivities, they are legislating outside the political process, and they are amending the Constitution outside the constitutional process. It is remarkable that these justices, with their stated eagerness to promote democracy, fail to see the damaging effect on our democracy of their own undemocratic arrogation of undelegated power.

The idea that the Supreme Court is the sole and final arbiter of the meaning of the Constitution (akin to Iran's all-powerful Guardian Council) is a creation of the court itself; both the Congress and a number of presidents have challenged this idea. That the court has authority to apply the provisions of the Constitution to cases brought before it is clear. (Though it would be better if Congress helped by writing applicable law to interpret the Constitution, so the court wouldn't have to depend on searching for principles.) That the court has no authority to alter the meaning of the Constitution is equally clear, since this right is reserved to the people. The Supreme Court is not the people. Its limitations now need to be made clear by Congress, which has specific authority to regulate the court. (U.S. Constitution, Article III, Section 2: the court shall have jurisdiction "with such Exceptions, and under such Regulations as the Congress shall make.")

Let us look at one of the earliest examples of the Supreme Court's (un)constitutional amendments. First some background:

One of the first items of business of the first U.S. Congress in 1789 was to amend the newly adopted Constitution. The Constitution as it stood merely laid out the basic structure of the new federal government (usually called the "general" or "central" government at the time), and indicated very sketchily its relation to the states. But several states felt that something was missing – something about the limitation on the central government's authority to restrict fundamental rights of the people. The state of Virginia, for example, had adopted a "Declaration of rights" (for white persons) in May of 1776 – largely the work of George Mason – which had served as inspiration for Thomas Jefferson and his committee in writing the American Declaration of Independence shortly thereafter. So by 1789, when the new Constitution was ratified and in effect, various draft proposals for a "bill of rights" were in the air, and in September of that year Congress passed a bill proposing twelve amendments to the Constitution. Ten of these were approved by the states within two years, and were attached to the Constitution as amendments. They are popularly known as the "Bill of Rights".

These apparent "rights" (primarily freedom of religion, speech/press, and assembly in the first amendment) may strike us as contradictory, because we know that restrictions on religious belief and on speech and assembly were common in most states at the time. Some states required public officials to confess the Christian faith before qualifying for appointment. There is little that indicates that early Americans saw such restrictions as violations of their rights. And it is clear that the states did not intend, with these amendments, to surrender their rights to determine their need for such civil restrictions.

If the states could restrict citizens' rights, what was the meaning of the First Amendment? The meaning was very specific, and it had little to do with granting rights. In 1789 the thirteen original states had been largely self-governing colonies, for more than a hundred years in some cases. Thirteen years earlier, in 1776, they had banded together and formed a loose confederation without any federal administration beyond a part-time and largely powerless "congress". Now they realized that some level of central government was needed in order to provide for the common defense and to manage relationships with foreign nations. In short, they needed to convince the European powers that they were one nation, and potentially a substantial nation. But the loyalties of every American in 1789 lay first with his state. A Massachusetts man was first and foremost that, even though he had grudgingly agreed to join these other sovereign states – his own state's rivals and competitors – in some kind of union. Most citizens in 1789 were skeptical of the new government, and practically all the members of the new Congress were determined that the general government should be given as little power as was strictly necessary to manage its business.

And so we come to the wording of the Bill of Rights, particularly the first amendment, which in fact neither grants nor guarantees individual rights. Rather, its purpose is to restrict the power of the federal Congress. Perhaps we could wish for a Bill of Rights that says "All persons within the territory of the United States have the right to free speech," etc. But we don't have that, we don't have such a bill of rights. Instead we have:

"Congress shall make no law" restricting the exercise of religion, speech or press, or freedom of assembly.

That is, the federal Congress shall make no law... In the Bill of Rights the states, wishing to guard their own governmental authority from incursion by Congress, restricted the federal government from stepping on their turf. The preamble to the Bill of Rights also makes this clear: "a number of the States ... expressed a desire, in order to prevent misconstruction or abuse of its [the Constitution's] powers, that further declaratory and restrictive clauses should be added". The individual states were perfectly free to regulate religion, speech, press, assembly, etc., and they did. American citizens were not guaranteed their supposed rights by the first amendment. This original meaning was well understood when the Constitution was adopted in 1789, and it was supported by the Supreme Court in a number of cases in the 19th and 20th centuries (See, for example, Slaughter-House Cases, 16 Wall. 36, 83 U.S. 72-74, 77-80 [1873]; Duncan v. Missouri, 152 U.S. 377, 382 [1894]; Maxwell v. Bugbee, 250 U.S. 525, 538). The meaning of the first amendment had not changed by 1922, when the high court held, in the case Prudential Ins. Co. v. Cheek, (259 U.S. 530), Justice Pitney writing for the court:

"The federal Constitution imposes no restriction on the states protective of freedom of speech, or liberty of silence, or the privacy of individuals or corporations." And further, "the Constitution of the United States imposes upon the states no obligation to confer upon those within their jurisdiction either the right of free speech or the right of silence."

This case dealt in part with the impact of the fourteenth amendment to the Constitution on the rights of citizens. The fourteenth amendment, one of the post-Civil War "Reconstruction" amendments intended to effect and protect full rights of citizenship for former slaves, prohibits the states from abridging "the privileges or immunities" of American citizens "without due process of law". This was the first amendment that would restrict the power of the states to regulate their citizens as they pleased. Ninety years after the adoption of the Bill of Rights, the states could now only restrict citizens' rights if they did so according to "due process of law". But within such due process the states could still restrict rights, as has been confirmed by later Supreme Court cases, such as Roe v. Wade, 1973.

In Prudential, the Supreme Court agreed with its earlier interpretations that the meaning of the text of the fourteenth amendment was not to transfer responsibility for protection of civil rights from the states to the federal government, since this had not been the understanding of Congress when it wrote the amendment. The records of debate, both in Congress and in the state legislatures that approved the amendment, show that such a radical reinterpretation of the Constitution, with a vast shift of responsibilities from the states to the federal government, was clearly not the intent of the amendment; it did not intend to remove from the states their authority within civil rights.

But in 1925, just three years after Prudential v. Cheek, the court had changed its composition and its tone, and it took an entirely different view of the meaning of the fourteenth amendment. At the same time the court gave itself an enormous new power – the power to alter at will the meaning of the Constitution. On June 8, 1925,Justice Sanford delivered the opinion of the court in the case Gitlow v. State of New York (268 U.S. 652):

"For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question."

Here, in the words of Justice Sanford, the court "assumes" an interpretation of the fourteenth amendment that is quite the opposite of what had consistently been held by the court for more than fifty years. He refers to Prudential v. Cheek, decided just three years earlier, and calls that court's confirmation of its earlier interpretations of the fourteenth amendment an "incidental statement" which is not "determinative". But the Prudential court's opinion was far from "incidental". It was based on reasoning detailed in its opinion, and on stare decisis – precedence from previously decided cases which had also argued the same issue. Indeed, it is the assumption by the Gitlow court that is unsupported and summary, that ignores stare decisis without any justification for its reversal, and that engages in the practice of what Justice Stephen Breyer calls "active liberty", which means that the justices may actively take liberties with the Constitution to reach the result that appears most beneficial to them as presumed guardians of the national democracy.

Eager to confirm that the first amendment limitations on Congress had now become guaranteed national rights, subsequent courts fell in line with the Gitlow assumption, which by repetition in case after case quickly became judicial doctrine. Thus, for example, in Near v. Minnesota, 283 U.S. 697 (1931), Chief Justice Hughes wrote, "It is no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action." In Schneider v. New Jersey, 308 U.S. 147 (1939), "The freedom of speech and of the press secured by the First Amendment ... against abridgment by the United States is similarly secured to all persons by the Fourteenth against abridgment by a state." In Cantwell v. Connecticut, 310 U. S. 296, 303 (1940), Justice Roberts again wrote, "The fundamental concept of liberty embodied in that Amendment [i.e., the fourteenth, ed] embraces the liberties guaranteed by the First Amendment. In In Murdock v. Pennsylvania, 319 U. S. 105 (1943), Justice Douglas wrote, "The First Amendment, as made applicable to the states by the Fourteenth...". Similarly, in Everson v. Board of Education 330 U.S. 1 (1947), Justice Black echoed the same words: "...the prohibition of the First Amendment which the Fourteenth Amendment made applicable to the states." The assumption in Gitlow had now become stare decisis, whereas the evident meaning invested in the fourteenth amendment by Congress and approved by the states in the late 19th century, was now heresy, all without any discussion by the court of the merits of their turnaround.

In the present-day American political dialogue (we should rather call it "di-monologue"), which typically knows only a "them or us" polemic, it may be thought that I am arguing that it was wrong to remove civil rights authority from the individual states and give it to the federal government. But that is not the case. I am all in favor of ensuring rights for all by ensconcing such protection in the U.S. Constitution, and I wish that had been done. I share that wish with the Supreme Court justices of the 20th century who reinterpreted (amended, actually) the Constitution to achieve this. I also share their undoubted frustration with a Congress that has routinely failed to deal with difficult societal issues. These two facts, Congress' dereliction of duty and the court's frustration over that, have led to the court's massive arrogation of power, far beyond what was contemplated by the "founding fathers" and what is permitted under the Constitution. Justice Breyer's judicial philosophy of actively taking liberties with the Constitution has its root in Chief Justice Marshall's opinion in 1803 Marbury v. Madison, 5 U.S. 137 (1803), when the court made itself the sole authority on constitutional interpretation, and it got its modern impetus with Gitlow in 1925, when the court seriously (actually flippantly) got into the business of redefining what the Constitution means. They've been in that business ever since.

The highest political and law-giving authority in the U.S. is the citizenry, which – through their representatives – wrote the Constitution and have updated it, albeit inadequately, through amendments. It is a fundamental organizational principle – particularly relevant to political entities – that an agency with delegated powers cannot expand its own power without authorization from the delegating authority. In the U.S., the people – the delegating authority – have, through the Constitution, delegated certain powers to three entities representing three branches of the federal government: the primary delegation of power is to Congress, the people's assembly, while more circumscribed powers are delegated to the President, and yet more restricted power to the Supreme Court. Congress has further delegated numerous powers to the President, and fewer to the court. It is clear that what has been decided by the highest authority – the people – cannot lawfully be changed by a lower authority, such as the Supreme Court, an agency with limited authorities. Efforts by the court to amend the meaning of their authorizing document – the Constitution – is an unlawful power grab and an intrusion on a right reserved to the people.

Justice William O. Douglas, in the Murdock opinion referred to above (1943), admitted openly that the meaning of the fourteenth amendment had been changed by the court, and that its current meaning to the court was not what the authors intended. In a footnote in the court opinion (footnote 2/11) he wrote, "It is only in recent years that the freedoms of the First Amendment have been recognized as among the fundamental personal rights protected by the Fourteenth Amendment from impairment by the states. ... Until then, these liberties were not deemed to be guarded from state action by the Federal Constitution." As pointed out above, and as Justice Douglas here affirms, the intent of the states in approving the Bill of Rights, and later the Fourteenth Amendment, was not to give up control of civic matters within their jurisdiction, but many decades after the ratifications this is what the Supreme Court decided the wording would mean.

So what does all this mean? It means that the Supreme Court has repeatedly and unconstitutionally amended the U.S. Constitution so that it now, according to the court, means something quite different from what it originally meant. In the case of the First Amendment, the Court has "intentionally misread" the amendment's restriction on Congress as an assurance of citizen rights, and with respect to the Fourteenth Amendment the court has equally twisted the intent of the amendment. Who has given the Supreme Court authority to make such changes? The Supreme Court!

While I personally at times agree and at other times disagree with the court's constitutional holdings, that is not the basis of my objection to the court's assumption of undelegated authority. My objection is to the process, to the idea that the Supreme Court can give the Constitution's provisions any meaning they choose. Their excesses in this regard have in my view been unconstitutional, and deserve attention and correction by Congress, which is the court's oversight organ and the only body that can check the court before it truly becomes an Iranian Guardian Council.

I'm sure they'll get right on it.

© 2014 H. Paul Lillebo

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