“We are slaves to a document that was written more than 230 years ago by a tiny group of slave-owning men. . .this ancient document is not serving us well.” Rosa Brooks, Georgetown University Law Professor.
This statement, and others like it, are protected free political speech under the very Constitution that Professor Brooks thinks illegitimate. What does she mean by “we are slaves to a document’? It would be very helpful to the nation if we, in fact, were.
First, the US Constitution is not ancient, nor was it written by a tiny group of slave-owning men. It is only 235 years old and less than half of the delegates to the Constitutional Convention of 1787 were slave owners (though all of them were men). Though common and legal at the time, slavery was always vigorously opposed by many in British America and banned for new territories by the Northwest Ordinance under the Articles of Confederation. The 13th Amendment ended it after the Civil War.
The issue is not that the delegates were men and some of them slave owners, the issue is whether what they created was worthy of the nation’s allegiance in 1787 and whether it is still worthy of that allegiance today.
Here is the governance structure the Founders created:
- Federalism. Vertically divided governance by and through the consent of the governed. Limited power and limited issues belong to the national government and broad (plenary) power and issues belong to the states. Some issues are outside the power of either state government or national government.
- Separation of national powers. Horizontally divided power between the executive branch, the legislative branch, and the judicial branch. These co-equal national branches of government check and balance each other. Each branch is to be respectful of the other two in word and deed.
- Political rights for individuals. These political rights apply against government power.
- Equality between states. Each state gives other states full faith and credit for its acts, records, and judicial proceedings. Privileges enjoyed in one state must be shared with all who reside within the state’s jurisdiction. This is also true for American territories.
- Two methods for amending the Constitution itself. One method begins with Congress and one method begins with the states themselves, bypassing both Congress and the President. We have twenty-seven amendments, so far.
Here is what the Constitution tells us the national government is supposed to do:
- Provide a sturdy defense of the nation and an orderly immigration system.
- Oversee ordered Liberty at the national level through Congressional legislation, Presidential management, and judicial oversight.
- Maintain the proper balance of power between the national government and the states. The national government is not to overwhelm the states with its military and financial power.
Here is what the Constitution tells us the national government is not supposed to do:
- Replace Moral Law (right from wrong), Natural Law (unalienable rights from God), or Unwritten Law (good manners) through Congressional legislation, executive orders, or judicial decree.
- Replace the private sector as the engine of the nation’s economy through Congressional legislation, administrative law, or judicial decree.
- Replace the states as the innovators of social policy and families as the backbone of the social order.
What has happened over time is that Presidents, Congresses, and Supreme Courts have not followed either the spirit or the letter of the US Constitution. It is especially egregious when the Supreme Court itself loses its way.
The Supreme Court’s historic role as unelected, lifetime members of a small group of scholars is simply to make sure that Congressional legislation meets Constitutional standards. This was expanded by the Court to include state legislative law by magically funneling some of the Bill of Rights through the Due Process Clause of the 14th Amendment. This idea was wholly made up by certain Justices and began as a ruling in Gitlow v. New York (1925), regarding the first Amendment.
In the 100 years since the Gitlow decision, the Selective Incorporation Doctrine, as it is called, has caused a distortion of our Constitutional system. Issues that belong to be decided by state Constitutions or the People through state elections are now the province of federal power and Supreme Court jurisdiction. The havoc created in our culture, especially when the Court has to backtrack, is damaging.
Early on, the Court tried to substitute its economic judgment for that of Congress. Later, the Court created affirmative rights, not political rights, that have no Constitutional anchorage.
What the Founders created for our national government, what that national government is supposed to do, and what that national government is not supposed to do deserves our allegiance today. The genius of the structure, the restraint that it calls for relative to power, and its integration with what is moral, unalienable, and companionable is unmatched in the history of statecraft.
As Justice Black articulated in Ferguson v. Skrupa (1963), “[C]ourts do not substitute their social beliefs for the judgment of legislative bodies who are elected to pass laws.” Nor are Justices of the Supreme Court to reflect the social beliefs of the Presidents who appoint them. They are, in fact, to be “slaves to the document” (the US Constitution) and in doing so will be setting an example of duty and restraint that helps assure the Liberty of a free people over eons of time.
If the Supreme Court continues to make things up as “doctrine” or substitute their personal views for the democratic process, what is “unmatched in the history of statecraft” will be swallowed whole by tyranny – a new Dark Ages for the world.