Presentation, “God, Man and Law” by Joseph Sobran, briefed and [notes] added by David Norris
The Court suffered a bloody defeat at Roosevelt’s hands, and … this has allowed the power of the federal government to grow without restraint. At the federal level, “checks and balances” has ceased to [be enforced by] judicial review. Time after time, it has found “unconstitutional” laws whose legitimacy had stood unquestioned throughout the history of the Republic. Notice how total the reversal of the Court’s role has been. It began with the duty, according to Hamilton, of striking down new seizures of power by Congress. Now it finds constitutional virtually everything Congress chooses to do. The federal government has assumed myriads of new powers nowhere mentioned or implied in the Constitution, yet the Court has never seriously impeded this expansion, or rather explosion, of novel claims of power. What it finds unconstitutional are the traditional powers of the states.
The postwar Court has done pioneering work in one notable area: the separation of church and state. I said “pioneering,” not “praiseworthy”. The Court has consistently imposed an understanding of the First Amendment that is not only exaggerated but unprecedented—most notoriously in its 1962 ruling that prayer in public schools amounts to an “establishment of religion.” This interpretation of the Establishment Clause has always been to the disadvantage of Christianity and of any law with roots in Christian morality. And it’s impossible to doubt that the justices who voted for this interpretation were voting their predilections. Maybe that’s the point. I’ve never heard it put quite this way, but the Court’s boldest rulings showed something less innocent than a series of honest mistakes. Those rulings can be described as wishful thinking run amok, and touched with more than a little arrogance. All in all, the Court displayed the opposite of the restrained and impartial temperament one expects even of a traffic-court judge, let alone a Supreme Court Judge.
It is ironic to recall Hamilton’s assurance that the Supreme Court would be “the least dangerous” of the three branches of the federal government. But Hamilton did give us a shrewd warning about what would happen if the Court were ever corrupted: in Federalist No. 78 he wrote that “liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other [branches].” Since Franklin Roosevelt, as I have noted, the judiciary has in effect formed a union with the other two branches to aggrandize the power of the federal government at the expense of the states and the people. This, in outline, is the constitutional history of the United States. You won’t find it in the textbooks, which are required to be optimistic, to present degeneration as development, and to treat the successive pronouncements of the Supreme Court as so many oracular revelations of constitutional meaning. A leading liberal scholar, Leonard Levy, has gone so far as to say that what matters is not what the Constitution says, but what the Court has said about the Constitution in more than 400 volumes [much of it Darwinian God-rejecting legalese] of commentary.
This can only mean that the commentary has displaced the original text, and that “We the People” has been supplanted by “We the [unelected] Lawyers.” We the People can’t read and understand our own Constitution. Apparently, it must be explained to us by the professionals. Moreover, if the Court enjoys oracular status, it cannot really be criticized, because it can do no wrong. We may dislike its results, but future rulings will have to be derived from them as [Darwinian] Precedents, rather than from the text and logic of the Constitution. Republican presidents [faithful to secular law professors] have by and large upheld not the original Constitution, but the most liberal interpretations of the Court itself — notably [to date] on the subject of abortion, which I’ll return to in a minute.
To sum up this little constitutional history: The history of the Constitution is the story of its inversion. The original understanding of the Constitution has been reversed. The Constitution creates a presumption against any power not plainly delegated to the federal government and a corresponding presumption in favor of the rights and powers of the states and the people. But we now have a sloppy presumption in favor of federal power. [Because of unelected Darwinian lawyers on the federal Supreme Court, local public schools can no longer teach “In God We Trust” foundations of American government.]
The Ninth and Tenth Amendments were adopted to make the principle of the Constitution as clear as possible. Hamilton, you know, argued against adding a Bill of Rights, on grounds that it would be redundant and confusing. He thought it would seem to imply that the federal government had more powers. So the Constitution can’t list all our rights, but it can and does list all the federal government’s powers.
You can think of the Constitution as a sort of antitrust act for government, with the Ninth and Tenth Amendments at its core. It’s remarkable that the same liberals who think business monopolies are sinister think monopolies of political power are progressive. When they can’t pass their programs because of the constitutional safeguards, they complain about “gridlock” — a cliché that shows they miss the whole point of the enumeration and separation of powers.
Well, I don’t have to tell you that this way of thinking is absolutely alien to that of today’s politicians and pundits. Can you imagine Al Gore, Dan Rostenkowski, or Tom Brokaw. having a conversation about political principles with any of the Founding Fathers? If you can, you must have a vivid fantasy life. And the result of the loss of our original political idiom has been, as I say, to invert [reverse] the original presumptions.
Used by the permission of “The Schwarz Report”, August 2005, current address: 227 E. 6th St., Long Beach, Ca, 90802. Pat Buchanan, “Joseph Sobran is perhaps the finest columnist of our generation.”
~ D. Norris