Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (37 page)

William Rehnquist (1924-2005) was for years the leading proponent of originalist jurisprudence on the twentieth-century Supreme Court. By the end of his
tenure, however, he was prone to bow before Court precedent, such as in
upholding the Miranda decision, even though he had long noted that originalism mandated the
opposite result. He presided at the impeachment trial of Bill Clinton before the Senate, generally to
positive evaluations, and he did carry the day in favor of federalism and against a broad (even
untethered) reading of Congress's Commerce Clause power. Resounding originalist opinions such as
his dissent in Wallace v. Jaffree (1985) (wherein he exploded the Court's modern church-state
jurisprudence) were his most lasting contribution.

This formulation is absurd, of course. The actual effect of the law is
not only to protect incumbent politicians but also to protect the incumbent media (and the incumbent corporations that own them), who are free
to editorialize, while restricting the right of people who want to purchase
air time or advertising space in print.

More egregious than the Court's unfounded decisions in restricting
political speech (McConnell being only the most important) was its performance in Bush v. Gore (2000).

In the 2000 presidential election, Florida's Division of Elections first
announced that Governor George Bush of Texas had defeated Vice President Albert Gore, Jr. As the margin was small-fewer than two thousand
votes-Florida law required a machine recount. The recount yielded a
smaller margin, but the same result: Bush
would receive Florida's electoral votes.

When the flurry of suits that demanded
recounts or the stoppage of recounts reached
the Supreme Court, it responded in a "per
curiam" opinion-one, that is, from the
whole Court. The Court solemnly intoned,
"None are more conscious of the vital limits
on judicial authority than are the members
of this Court." That was a laugh, but the
problem in Florida was that its own state
supreme court was interpreting the state
constitution as the U.S. Supreme Court usually interprets the federal Constitution-however it pleased, openly dis regarding the laws governing elections in Florida to allow perpetual
recounts until the preferred outcome (a Gore victory) could be arranged.

Legal Logic and
Affirmative Action

Does anyone outside the Supreme Court
really think the ratifiers of the Constitution imagined the Court setting employment policies for the nation's businesses?

The proper remedy to the Florida Supreme Court's overreaching lay
with the Florida legislature. The legislature was fully empowered by Article II, Section 1 of the federal Constitution to establish the manner of the
Florida electors' allocation between Bush and Gore. The popular votes
had been counted and recounted and recounted in selected counties,
always yielding the same result, and the secretary of state, under the state
constitution, had a deadline for certifying the vote tallies. If counties
failed to submit their votes by the deadline, she was constitutionally
empowered to ignore them. Thus, however one cut it, the issue was
clearly decided. Bush was the electoral choice of the state of Florida,
under the electoral laws of the state, and the Florida legislature was the
constitutional authority-not the Florida Supreme Court-to decide
which electors were going to Washington.

Nevertheless, the Supreme Court couldn't restrain itself from commenting on Florida's electoral processes, implicitly disapproving the
state's method of counting votes, and expressing the Court's concern that
"equal protection" be respected in any recount process (though, as
punch-card ballots are not racially or sexually identifiable, it was not
clear what "equal protection" could amount to beyond an anodyne counsel of "play fair"). Only Chief Justice Rehnquist (with two associates)
pointed out that the Constitution gives state legislatures the power to
assign the states' electoral votes.

Surprisingly, while his reasoning did not attract a majority, Rehnquist's
vote carried the day. George Bush received Florida's electoral votes, as
the Florida legislature intended. The fiasco of the Supreme Court intervening to settle this dispute could only have been made worse by its
doing what the dissenters wanted: returning the matter to a nakedly partisan, Democrat-dominated state supreme court. The Court declined to do so by a margin of one vote. That was a one-vote majority in favor of
the Constitution over the judicial clique that thinks the law is what it says
it is.

hat, then, can be done to right two centuries' nearly uninterrupted misapplication of the federal Constitution? How
might the promises made by Federalists such as James Wilson and Edmund Randolph in the ratification process of 1787-1788 be
made to bear fruit? Specifically, how can we stop the Supreme Court from
acting as the supreme legislator of the United States?

The prospects are dim. One serious obstacle to reform is the Seventeenth Amendment, which substituted popular election of senators for
their original election by state legislatures. This stripped the state governments of their sole significant check on federal overreaching. Also, the
modern case method of instructing prospective lawyers in constitutional
law, which consists simply of discussing judicial opinions about the Constitution, makes it highly unlikely that American attorneys as a class will
ever come to understand that the account of the Constitution judges peddle has little connection to the ratifiers' understanding. Lawyers, then,
will not soon know that the Constitution of the judges is not the one the
people voted for.

The intellectual class, by and large, has no problem with this. The
party line is that Supreme Court rulings are raw exercises of power
whether judges purport to be bound by the original understanding or not, so why not admit it? This idea is promoted in academia, the liberal
media, and elite opinion generally. These circles treat references to originalist understandings of the Constitution as either disingenuous or irrelevant. The New York Times, the Washington Post, and, nowadays, most
people assess Supreme Court rulings according to their policy preferences, along the lines of "I dislike this policy, so it's 'unconstitutional'"
(or the reverse).

What constitutional law is supposed to be is the application of the
Constitution's plain meaning to bind judges, presidents, and congressesall wielders of federal power. If we want to return to Thomas Jefferson's
vision of the Republic, if we want the Constitution enforced in the way
it was explained to the people at the time of its ratification, then we have
to overcome the received wisdom about what constitutional law is. I hope
The Politically Incorrect GuideTM to the Constitution is one small step in
that direction.

There are other steps we can take as well. The main problem with the
Supreme Court's rulings over the last seventy years is that they have
allowed Congress to do too much and state governments to do too little.
In other words, the Supreme Court has ignored the Constitution's division of powers between the state and federal governments. The solution,
then, is to provide the states with a new check on federal interference and
overreaching.

One idea is to create a constitutional council of the fifty states. The
council could consist either of the fifty state chief justices or of fifty members elected to represent the states. The council would be given power to
review the federal courts' constitutional decisions. This council could
help restore the republican federal government of very limited powers we
started off with and undo the unrepublican judgeocracy of limitless powers we have now.

When the Philadelphia Convention of 1787 adjourned from writing the
Constitution, a woman was waiting at the door. She asked delegate Benjamin Franklin what they had wrought, and he said a constitution for "a
republic, if you can keep it." To the extent that we have not kept the Constitution that Franklin helped to write, it is time we took it back.

Agreed to by Congress November
15, 1777; ratified and in force, March
1, 1781.

To all to whom these Presents
shall come, we the undersigned Delegates of the States affixed to our
Names send greeting.

Articles of Confederation and perpetual Union between the States of
New Hampshire, Massachusetts bay,
Rhode Island and Providence Plantations, Connecticut, New York, New
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South
Carolina and Georgia.

Article I. The Stile of this Confederacy shall be "The United States of
America."

Article II. Each state retains its
sovereignty, freedom, and independence, and every power, jurisdiction,
and right, which is not by this Confederation expressly delegated to the
United States, in Congress assembled.

Article III. The said States hereby
severally enter into a firm league of
friendship with each other, for their
common defense, the security of their
liberties, and their mutual and general
welfare, binding themselves to assist
each other, against all force offered to,
or attacks made upon them, or any of
them, on account of religion, sovereignty, trade, or any other pretense
whatever.

Article IV. The better to secure
and perpetuate mutual friendship and
intercourse among the people of the
different States in this Union, the free
inhabitants of each of these States,
paupers, vagabonds, and fugitives

from justice excepted, shall be entitled
to all privileges and immunities of
free citizens in the several States; and
the people of each State shall free
ingress and regress to and from any
other State, and shall enjoy therein all
the privileges of trade and commerce,
subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided
that such restrictions shall not extend
so far as to prevent the removal of
property imported into any State, to
any other State, of which the owner is
an inhabitant; provided also that no
imposition, duties or restriction shall
be laid by any State, on the property of
the United States, or either of them.

If any person guilty of, or charged
with, treason, felony, or other high
misdemeanor in any State, shall flee
from justice, and be found in any of
the United States, he shall, upon
demand of the Governor or executive
power of the State from which he fled,
be delivered up and removed to the
State having jurisdiction of his
offense.

Full faith and credit shall be given
in each of these States to the records,
acts, and judicial proceedings of the
courts and magistrates of every other
State.

Article V. For the most convenient
management of the general interests of
the United States, delegates shall be
annually appointed in such manner as
the legislatures of each State shall
direct, to meet in Congress on the first
Monday in November, in every year,
with a power reserved to each State to
recall its delegates, or any of them, at
any time within the year, and to send
others in their stead for the remainder
of the year.