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Why We Need A New Constitution: Part 16 of 21

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Brennan (1982) rejected the notion that the Supreme Court could legitimately either implement or ratify constitutional revisions:

If indeed, courts may appropriately 'apply values not articulated in the constitutional text'; if they are to act as 'expounders of basic national ideals of individual liberty and fair treatment, even when the context of those ideas is not expressed . . . in the written Constitution,' . . . then it is literally true . . . that the Supreme Court exercises veto power over the actions of state legislatures, executives, and judiciaries, and that the Court is 'a continuing constitutional convention, updating the meaning of the Constitution as new times and new situations demand . . . .'[1]

Indeed, the Supreme Court, in ratifying the usurpations of power by all Branches of Government, has functioned as a "continuing constitutional convention":

There are those who hold that the American Constitution is not a written law at all, but is rather the sum total of all those customs, traditions, institutions and practices which have grown up over the years, and which influence or control the workings of our national government. In this view, the Constitution is considered coextensive with the governing Establishment. It is the way things are. It is the distribution of power, as it actually exists and is effectively exercised in modern American society. This might be termed the empirical constitution. . . .

It may be that every written code or constitution is eventually eroded by conflicting customs. It is, however, peculiar to the American experience that disregard and diminishment of our written Constitution has been a work of great sophistry, combined with an incongruous deference to the original text. We have paid lip service to the immutable words of the Constitution. We have demonstrated great resistance to constitutional amendments proposed through the processes established by Article V. At the same time, our courts have shown blithe disregard for the intent of the authors of the Constitution and the obvious purposes and understanding of those who ratified the Constitution, whenever it has seemed practical or expedient to do so. [2]

As Former Chief Justice Hughes stated, "We are under a Constitution, but the Constitution is what the judges say it is."[3] This was confirmed by the authors of The Constitution and What It Means Today, who noted that there has been an "enormous change in the meaning of the Constitution over the last twenty years. One does not fully appreciate the full impact of that change until he goes over the Constitution provision by provision."[4] This would not have surprised Robert Yates, one of the Framers of our Constitution who later wrote essays against its ratification. According to historian Jackson Turner Main, Yates observed in 1788 that

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[M]ost of the powers [of the Constitution] were granted 'in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold the extent of their meaning.' The meaning of the Constitution would be decided by the Supreme Court, and therefore the judges could 'mould the government, into almost any shape they please.'[5]

Vague language gave the green light for Judicial constitutional revision, a phenomenon which appeared early on in our Republic, as predicted by Yates. The Supreme Court, the final link in the constitutional chain, granted itself the power of exclusive constitutional "interpretation," even though Jefferson had vehemently argued against the power of the Supreme Court to exclusively interpret the Constitution - a power which goes far beyond our traditional conception of Judicial Review as the power to declare laws unconstitutional. As Jefferson wrote,

In denying the right they [the Judiciary] usurp of exclusively explaining the constitution, I go further than you do, if I understand rightly your quotation from the Federalist, of an opinion that 'the Judiciary is the last resort in relation to the other departments of the government ['] . . . if this opinion be sound, then indeed is our constitution a complete felo de se [a suicide]. For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation. . . . The constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary, which they may twist, and shape into any form they please.[6]

In point of fact, the Constitution has indeed become a "mere thing of wax in the hands of the Judiciary," as the Supreme Court has actually rewritten provisions of the Constitution by construction, and created an Empirical Constitution - that is, the constitution we actually live under, as opposed to the one contained in that glass case in Washington, D.C. . To take one of hundreds of examples, the Court has stated on different occasions that the provision "The trial of all crimes . . . shall be by jury" in Article Three of the Constitution (and a similar provision in the Sixth Amendment) really means "The trial of all serious crimes . . . shall be by jury." The Judicial Branch, of course, is to be the arbiter of what distinguishes "serious" from "petty" crimes. In one of the rare acknowledgments by the Court of the extent to which they have revised the Constitution by construction, Justices Black and Douglas stated in their concurrence in Baldwin v. New York, 399 U.S. 66 (1969) that

Many years ago this Court, without the necessity of an amendment pursuant to Article V, decided that 'all crimes' did not mean 'all crimes,' but meant only 'all serious crimes.' Today three members of the Court would judicially amend that judicial amendment and substitute the phrase 'all crimes in which punishment for more than six months is authorized.' This definition of 'serious' would be enacted even though those members themselves recognize that imprisonment for less than six months may still have serious consequences. This decision is reached by weighing the advantages to the defendant against the administrative inconvenience to the State inherent in a jury trial and magically concluding that the scale tips at six months' imprisonment. Such constitutional adjudication, whether framed in terms of 'fundamental fairness,' 'balancing,' or 'shocking the conscience,' amounts in every case to little more than judicial mutilation of our written Constitution. Those who wrote and adopted our Constitution engaged in all the balancing necessary. They decided that the value of a jury trial far outweighed its costs for 'all crimes' and '[i]n all criminal prosecutions.' Until that language is changed by the constitutionally prescribed method of amendment, I cannot agree that this Court can reassess the balance and substitute its own judgment for that embodied in the Constitution. [7]

A rare admission. But every term of the Court brings new changes to our Constitution. [8][9] In a remarkable piece of scholarship, Dr. Thomas Ladanyi bravely attempted to reduce to writing the Supreme Court's constitutional rewrites in his book The 1987 Constitution. The Baldwin decision explains in part Ladanyi's version of the Sixth Amendment of the Empirical Constitution, which begins as follows: "In all prosecution of serious crimes, subject to sentences exceeding six months . . .", replacing the original, which simply states "In all criminal prosecutions . . . ." We have previously noted the Delegation Doctrine. The 1787 Constitution reads as follows:

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All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Short, sweet, and to the point. But the Empirical Constitution reads somewhat differently, after the various Delegations of power have been factored in:

The Congress of the United States, which consists of a Senate and a House of Representatives, possesses all legislative power herein granted, with the exception of the following, all of which may have the same force and effect as a law directly adopted by the Congress: international treaties initiated by the President, subject to approval by the Senate and executive agreements with other sovereign states entered into by the President without Congressional approval, both relating solely to the external concerns of the Union; executive orders and regulations issued by the administrative bodies and regulatory agencies validly created, and the scope of which is properly within the Congress's authority to delegate; the exercise of war powers by the President as Commander-in-Chief; final judgments of courts of law concerning the interpretation of all laws, treaties, agreements, orders, rules, regulations and other acts dealt with in this section; and the Supreme Court's final determinations, in the light of the dictates and the spirit of this Constitution, as to the validity of all of the foregoing, as well as its interpretations thereof. While the Congress may neither delegate its legislative powers to the Executive and Judicial Branches, nor invest itself with their powers, being one of the three co-ordinate Branches of the National Government, in carrying out its legislative functions it shall, where proper and necessary, cooperate with, and, on a mutual basis, provide assistance to the other two Branches. Such cooperation and mutual assistance may include narrowly defined, essential, convenient and fully revocable delegation of some of its legislative powers.[10]

Note one of the main failings of Supreme Court re-writes. While some Court decisions have held that Congress may not delegate its powers, the majority have. This inconsistency is reflected in Ladanyi's reduction of the Empirical Constitution on the Delegation issue (may not vs. may). The Supreme Court is not only poorly equipped to redraft the Constitution, but their method of operation guarantees an inconsistency which renders their re-writes permanently ambiguous.



[1] "Return to Philadelphia," Thomas Brennan, 1 Cooley Law Review 1, 35 (1982) (footnotes omitted).

[2] 1 Cooley Law Review 1, 35-6 (footnotes omitted).

[3] The Constitution and What It Means Today, p. xiii.

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[4] The Constitution and What It Means Today, p. vii.

[5] The Anti-Federalists, Jackson Turner Main (Norton: 1974), pp. 125-6.

[6] Letter from Thomas Jefferson to Spencer Roane, Sept. 6, 1819, 3 Founders' Constitution 261.

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Barry Krusch is president of Intelligent Communities, Inc., sponsors of The Intelligent Community Initiative. He is also author of 2 books, The 21st Century Constitution and Would The Real First Amendment Please Stand Up?

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