The crisis of the Constitution, in process for a long time, has entered a new and intensified stage.
As Attorney General Edwin Meese told the American Bar Association in 1985:
It was not long ago when constitutional interpretation was understood to move between the poles of ‘strict construction’ and ‘loose construction.’ Today, it is argued that constitutional interpretation moves between ‘interpretive review’ and ‘non-interpretive review.’ As one observer has pointed out, under the old system the question was how to read the Constitution; under the new approach, the question is whether to read the Constitution.
The Constitution’s framers clearly understood that our founding document would be interpreted according to “jurisprudence of original intent,” that is, it must be interpreted as the framers intended it, unless and until amended. “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation,” James Madison said. “And if that be not the guide in expounding it, there can be no security … for a faithful exercise of its powers.”
But beginning in the late 1800s and accelerating in the 1900s, judges and constitutional scholars moved toward the “Living Constitution” school of interpretation by which each succeeding generation (meaning each succeeding generation of unelected federal judges) may reinterpret the Constitution according to their own values. I have long argued that this is a dangerous approach because the same Court that can read into the Constitution rights that aren’t there can read out of the Constitution rights that are there, like free speech, free exercise of religion, and the right to keep and bear arms.
As Professor Lino Graglia of the University of Texas wrote in 1985:
[T]he central truth of constitutional law today is that has nothing to do with the Constitution except that the words ‘due process’ or ‘equal protection’ are almost always used by the judges in stating their conclusions. Not to put too fine a point on it, constitutional law has become a fraud, a cover for a system of government by the majority vote of a nine-person committee of lawyers, unelected and holding office for life.
But that was a generation ago. Leftists no longer twist and stretch the Constitution to give it a convoluted interpretation. Now they utterly ignore it so they can do what they want to do to America. Thus, we see President Biden and Vice President Harris advocating term limits for Supreme Court justices, despite the plain wording of Article III, Sec. 1, which says federal judges “shall hold their Offices during good Behavior.” They are simply venting their anger at the Supreme Court’s Dobbs v. Jackson (2022) decision, which correctly overruled Roe v. Wade (1973) because the Constitution contains no right to abortion, and therefore, the regulation or legalization of abortion is properly left to the states.
A growing chorus of constitutional law professors, whom you would expect to be guardians of the Constitution, are joining the attack. Erwin Chemerinsky, Dean of the University of California at Berkeley Law School and author of a widely-used constitutional law textbook, has published a book titled, “No Democracy Lasts Forever: How the Constitution Threatens the United States.” Chemerinsky argues that the Constitution is outmoded and must be replaced, primarily because of anti-majoritarian policies such as the filibuster and unlimited terms for Supreme Court justices. I respectfully note that the filibuster can be eliminated without replacing or even amending the Constitution and that a major concern of our framers was to protect minorities from abuse by majorities.
Harvard Law Professor Ryan Doerfler and Yale Law Professor Samuel Moyn go a step further. In a 2021 California Law Review article titled, “Democratizing the Supreme Court,” they suggest limiting the Court’s power by stripping it of jurisdiction over some matters (which can be done under Article III, Sec. 2) or requiring a supermajority for declaring laws unconstitutional. This, they suggest, would remove power from the judicial branch, transferring it to other branches of government. More recently, Doerfler and Moyn authored a New York Times opinion piece titled, “The Constitution Is Broken and Should Not Be Reclaimed.”
Back when liberals dominated the Court, the left strongly defended judicial activism. Now that the pendulum has swung to the right, although we don’t know how far it has swung, they excoriate judicial activism as anti-democratic. Conservatives have also followed this double standard, attacking the Court when it was liberal but now defending it as the last bastion of constitutionalism stemming a leftist tide.
Attorney Elie Mystal, in a Salon interview, says the Constitution not only is “not good” but is “actually trash,” because it was drafted by white slave-owners. While roughly 17-25 of the 55 Convention delegates held slaves, many delegates were strongly opposed to slavery and were members of abolitionist societies. Plus, the constitutional provisions condoning slavery were eliminated by the 13th, 14th and 15th Amendments.
Why do leftists trash the Constitution that provided us with 235 years of relative liberty, stability, justice and prosperity? The answer is simply this: The Constitution does not protect the so-called “liberties” that lead to self-destruction and bondage to sin; and properly interpreted, the Constitution prevents leftist demagogues from seizing power and using it to transform this nation into a secular socialist country.
We would do well to heed the words of Thomas Jefferson (once a hero to American liberals) in the Kentucky Resolutions of 1798: “[I]n questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu) and as Senior Counsel & Resident Scholar for the Foundation for Moral Law (morallaw.org). He may be contacted for speaking engagements at eidsmoeja@juno.com.
