A Nation Ruled by Its People? Or By Malcontents with Friends?

“Agreement” suggests several possibilities, including a contract, shared understanding, amity. More is implied than absence of conflict. At least, in terms of contract, an agreement suggests that two minds have met, reached an understanding, and have a planned course of conduct. Volumes of law -- both statutes and judicial decisions -- exist as a testament to the value of agreements and the imperfections inherent in them.

“Constitution,” like “agreement,” suggests several possible meanings, including the makeup of individual organization, and more often, a plan of government for an organization, including private organizations like clubs and associations, and public ones like corporations and governments. Volumes of law, and of history, exist as a testament to the value of constitutions and the imperfections inherent in them.

For two and a quarter centuries, the American people have existed together in a union of states. Throughout that time, every American’s lives under the terms of two constitutions: their own state Constitution and the United States Constitution. During that period, state constitutions have been amended by the will of the people. In addition, the U.S. Constitution has been amended 27 times. Changes addressed a myriad of matters, from voting ages to taxation to presidential succession.

All these amendments, changing this scope and terms of state and federal Constitutions, reflect the exercise of popular sovereignty by electoral majorities. Among the means by which constitutions may be changed, amendment by the exercise of popular will, at least in the view of Abraham Lincoln, was the only approach consonant with a popular republican form of government. In his first inaugural address, Abraham Lincoln responded to the popular fear in southern states and that the ascendancy of Republican president would threaten the desire of the southern states to maintain their institutions, including slavery, against the popular will of the northern states. 

To get to his point, Lincoln had to speak with care about a decision of the Supreme Court, Dred Scott v. Sanford, in which the Supreme Court had held that the Congress acted unconstitutionally when it regulated the institution of slavery in federal territories that had not yet been admitted as states to the union. In Lincoln’s view, the Dred Scott Court had, essentially, usurped the role of the Congress in representing the will of the People:

Is it true, then, that any right plainly written in the Constitution has been denied? I think not. Happily, the human mind is so constituted that no party can reach to the audacity of doing this. Think, if you can, of a single instance in which a plainly written provision of the Constitution has ever been denied. If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one. But such is not our case. All the vital rights of minorities and of individuals are so plainly assured to them by affirmations and negations, guaranties and prohibitions, in the Constitution that controversies never arise concerning them. But no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say.

From questions of this class spring all our constitutional controversies, and we divide upon them into majorities and minorities. If the minority will not acquiesce, the majority must, or the Government must cease. There is no other alternative, for continuing the Government is acquiescence on one side or the other. If a minority in such case will secede rather than acquiesce, they make a precedent which in turn will divide and ruin them, for a minority of their own will secede from them whenever a majority refuses to be controlled by such minority. For instance, why may not any portion of a new confederacy a year or two hence arbitrarily secede again, precisely as portions of the present Union now claim to secede from it? All who cherish disunion sentiments are now being educated to the exact temper of doing this.

Is there such perfect identity of interests among the States to compose a new union as to produce harmony only and prevent renewed secession?

Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

Only a rugged individualist or an oligarch would argue against such republican exercises of electoral will. Nonetheless, such individualists and oligarchs have objected to these constitutions and these amendments. Merely objecting to them would mark them as malcontents but leave our republic intact. Contentment is not, however, a signal feature of a malcontent.

Over the course of our two century experiment in republican democracy, constitutional malcontents have grown to rely more and more on one sure source of recourse: judges. Consider, for example, one such case of an early malcontent.

In the waning days of the administration of Pres. John Adams, William Marbury received an appointment as a justice of the peace in the District of Columbia. As Adams administration ended the commissioning papers for Marbury were prepared, but never delivered. After Thomas Jefferson took office, and James Madison was installed as secretary of state, Marbury sought his commission papers from Madison. Madison refused to deliver the commission papers to Marbury. Without the commissioning papers Marbury did not validly hold his office as justice of the peace.

To put Marbury’s demand to Jefferson in perspective, imagine a circumstance in which, in the waning days of the George W Bush administration, a Jewish judicial nominee was confirmed by the Senate. Further, imagine that a commission embodying Bush’s nomination and the Senate’s consent was prepared. Yet, through oversight or neglect, the commission was never issued to the nominee I know oath of office administered. On inaugural day, picture newly installed Pres. Obama entering the Oval Office for the first time as president of the United States. Take in his pleasant surprise on discovering the as yet unknown transmitted commission sitting on his desk, a Post-it note attached to it stating, “Please transmit to nominee.”

Even were Obama a nice man, a decent sort, it asks too much of him that he installed in office-for life-a judicial officer selected by the previous president. The likelihood that such a nominee would meet the ideological preferences of a president of a different political party is laughably small. So, like Jefferson did, you can easily see that Obama would decline to transmit the judicial commission.

In Marbury’s case, being denied the all-but-transmitted commission proved too much. Marbury acted. He filed suit against James Madison, Thomas Jefferson’s Secretary of State. Marbury demanded that the court issue an order requiring Madison to grant the commission prepared during John Adams administration. Because Congress had authorized such suits to be filed in the Supreme Court, rather than in a Trial Court, Marbury filed suit at the Supreme Court.

The Supreme Court dismissed Marbury suit.

In its view, Congress across the boundary in the Constitution by its enactment of the Judiciary act. Congress enacted the Judiciary Act, exercising an express power set out in the Constitution:  “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” In the case of the Judiciary Act, Congress was in fact establishing and ordaining inferior courts. In addition to establishing lower tribunals, however Congress had also enacted a provision in the law allowing litigants to seek writs of mandamus at the Supreme Court.

Since its decision, Marbury v. Madison has come to stand for another principle. The Supreme Court asserted as part of its discussion in Marbury that it had supremacy over Congress and the president in deciding the meaning of the words of the United States Constitution. Such an assertion should have provoked the other branches to immediate response. The decision in Marbury, however, favored Jefferson’s administration in its treatment of Marbury, so it’s provocative dictum was without present harm. In Congress, the House of Representatives had selected Jefferson for president, so again little motivation existed for an immediate reaction there. Thus, the Supreme Court’s otherwise controversial claim -- that between it and the other branches of the federal government, it was the ultimate arbiter of the meaning of the Constitution -- went unanswered.

Now, not every suit fits the mode of the constitutional malcontent. When Acme Company sues John Doe for payment on services rendered, a court may have to interpret the contract. When a man is prosecuted for crime, the meaning of a criminal statute may have to be construed. These judicial extractions of meaning-- from statutes, from contracts, and from constitutions -- are ordinary in the course of adjudication.

The hallmark of the constitutional malcontent is the search for a new or contradictory meaning of the Constitution via judicial decision-making, rather than via amendment of the Constitution. You know the obvious case: Jane Roe, suing to prevent the State of Texas from enforcing its long-standing statutory ban on abortion, and Mary Doe, suing to prevent the State of Georgia from enforcing its modern-day reformed abortion laws.  No honest broker of American history claims that the United States Constitution literally guarantees the right to have an abortion.  Yet, at the time of Roe v. Wade, there was NO likelihood that an amendment to the US Constitution could be ratified that would legalize abortion broadly as did Harry Blackmun’s hit piece.  So, rather than engage hearts and minds of Americans in a longer term conversation about liberty, equality, women’s health, or related issues, Roe and Doe were made the frontispiece of the pro-abortion lobby’s frontal assault on the Constitution, an assault welcomed by a complicit Supreme Court already long comfortable in its assumed role as final arbiter of the Constitution’s meaning.

Still other cases, ripped from today’s headlines, mark the newest ventures into the field of the amendment-free amendment of the Constitution.  These are the cases seeking a federal constitutional home for a right to overturn State laws defining marriage, even State Constitutions defining marriage.  These most recent cases, now a string of successful appeals to federal judges to re-read the federal Constitution in a way that rejects the long-settled statutory definitions of marriage in virtually every State of the Union.  These litigants are the latest constitutional malcontents.  They cannot converse with the People and persuade hearts and minds.  But they can get themselves to a courthouse and find respite there.

What should worry the malcontent, but which they never seem to grasp, is the danger of the precedent involved in propping up this false judicial oligarchy.  Now we do NOT rule ourselves by common agreement.  We are ruled, and overruled, by the preferences of unelected micro-minorities:  appointees who enjoy lifetime employment, undiminished income, and freedom from the democratic urge to engage.  These judges DICTATE, they do not discuss; they COMMAND, they do not invite. When such a judge should turn on them, how will they save themselves?  By recourse to the People, whose laws they reject, whose judgments regarding social convention they reject?  By recourse to judges, whose autocracy is without pity?

Ultimately, if the Nation is to survive, there has to be AGREEMENT under a CONSTITUTION.  But that agreement cannot bear the weight of a Nation unless it is the voluntary agreement of minds that have shared values and common purposes.  The day when such an outcome is possible seems to be something visible only in the rear view mirror.  Still, inviting the conversation may be the way to discover whether that is so.