What if the American people (electorate), upon ratifying our new Constitution, had elected their first President, Congressmen and, Senators not on their political views so much, but their knowledge of the Constitution and the intent of those who produced the document? And if this practice had been continued to the present day, this would be a far different country today, wouldn’t it? Imagine if the debates in both houses of the Congress were first over whether or not the law met the test of the original intent of the Constitution and only if it did would the debate move to whether or not the law was actually needed.
What I described might have been nice but, once the Founders were no longer available to consult on their original intent, our elected officials were left to interpret as best they could what the original intent was. And, if the Constitution is open to interpretation, who has the final word? The Constitution belongs to the people and not to the government; so, in the end the people are the final arbiters and they exercise their decision with their votes. As a practical matter, the people’s representatives in government are charged through their oath to preserve, protect and defend the Constitution and therefore, they must interpret the constitutionality of every law and every Supreme Court decision.
Clearly throughout our history, our elected officials have not adhered to their oaths nor have the people been the least bit diligent in electing their representatives based on their knowledge of the Constitution and its original intent and in using their votes to remove those who have not lived-up to their oaths.
What prompted me to write this post was an article in National Review Online written by a student a Harvard Law School, Joel Alicea. The title of Joel’s article is Questioning the Supreme Court’s Supremacy and what caught my eye was this:
The most dramatic challenge to the Supreme Court’s authority as the ultimate constitutional interpreter has come from former speaker of the House Newt Gingrich, who gave a speech at the Value Voters Summit earlier this month asserting that the constitutional judgments of the president and Congress are entitled to as much respect as those of the Court. Mr. Gingrich promised that, as president, he would challenge the Court’s role as the final arbiter of constitutional meaning — he would even ignore a Court decision if he strongly believed that the Court’s judgment on an important issue was contrary to the true meaning of the Constitution.
If you read the article, you will find that a number of intellectuals and pundits do in fact support the idea that the Supreme Court is the final arbiter of the Constitution. To me the idea is absurd on its face. If the Supreme Court had the final word we would not be a constitutional republic but a constitutional oligarchy. The members of the Supreme Court are not elected by the people. The Supreme Court is not an equal branch of our federal government.The most powerful branch of government is the two houses of Congress. The House controls the purse strings and together with the Senate they can impeach a President or a federal judge.
Getting back on point. Since our founding, our elected presidents and congressmen and senators and our appointed Supreme Court justices have in general not lived-up to their oaths to preserve, protect and, defend our constitution. And, we the people have shirked our responsiblity to elect those that would honor the oath they take.
Well, we can’t go back in time and have a do-over, unfortunately. But, if enough of the electorate want to begin a do-over in the next election cycles, we could bring about tremendous change in this country solely by returning to the Constitution’s original intent.
What if we elected in 2012 a President that was well versed in the Constitution and its original intent and who took his/her oath of office very seriously? What could he/she do? Plenty! Theoretically and constitutionally, this new President could, without the consent of Congress, decide that thousands of our federal laws were not constitutional and, therefore, tell the justice department to stop enforcing those laws. This new president could unilaterally decide that any number of government agencies were unconstitutional and, therefore, shut them down. There are two parts to deciding if a law or an agency is unconstitutional. Something can be unconstitutional because it violates our inalienable rights. Something may be unconstitutional for the federal government but not necessarily unconstitutional for a state or local government.
Other than public opinion pressure, there is nothing to stop a president from taking such measures except impeachment. As long as this President had sufficient support in Congress, he/she could not be stopped from taking such measures.
There is also much a new Congress could do. If the votes are there, they could review all past Supreme Court decisions and decide if some of them should be declared unconstitutional.
Obviously, how far and how fast a president or congress moved to declare laws and Supreme Court decisions unconstitutional would have to be tempered by politics. For in the end, it is the people that have the final word and the people don’t necessarily make their decisions based on their interpretation of the Constitution, do they? My point is, even taking politics into account, there is much a new president and anew congress could do. They have the power and they have the obligation of their oaths to do what is right constitutionally.
Well, that’s what I’m thinking. What are your thoughts?
My blogging friend, AOW at Always On Watch just left me a message with a suggestion that I read a quote made by Milton Friedman refering to John F. Kennedy’s innaugural address tat was carried in American Spectator article. Her reasoning for the suggestion was not related to this post but I find that it fits very well and so I am sharing it here:
“In a much quoted passage in his inaugural address, President Kennedy said, “Ask not what your country can do for you – ask what you can do for your country.” Neither half of the statement expresses a relation between the citizen and his government that is worthy of the ideals of free men in a free society. The paternalistic “what your country can do for you” implies that government is the patron, the citizen the ward, a view that is at odds with the free man’s belief in his own responsibility for his own destiny. The organismic, “what you can do for your ‘country” implies the government is the master or the deity, the citizen, the servant or the votary.To the free man, the country is the collection of individuals who compose it, not something over and above them. He is proud of a common heritage and loyal to common traditions. But he regards government as a means, an instrumentality, neither a grantor of favors and gifts, nor a master or god to be blindly worshipped and served. He recognizes no national goal except as it is the consensus of the goals that the citizens severally serve. He recognizes no national purpose except as it is the consensus of the purposes for which the citizens severally strive.
The free man will ask neither what his country can do for him nor what he can do for his country. He will ask rather “What can I and my compatriots do through government” to help us discharge our individual responsibilities, to achieve our several goals and purposes, and above all, to protect our freedom? And he will accompany this question with another: How can we keep the government we create from becoming a Frankenstein that will destroy the very freedom we establish it to protect?