The Future of Self-Government

In a speech to the Woodrow Wilson Center, Supreme Court Justice Antonin Scalia discussed a vital issue upon which the survival of our liberty and our ability to govern ourselves largely depends. Scalia describes himself as an “originalist” on Constitutional interpretation, which means

“that you give the text [of the Constitution] the meaning it had when it was adopted…the Constitution is not a living organism for Pete’s sake; it’s a legal document, and like all legal documents, it says some things, and it doesn’t say other things”.

If the people who adopted the Constitution want to change it, the democratic procedure by which that can and should be done, by the amendment process, is established in Article V of the Constitution itself. In this idea, Scalia is in the best of company:

“My idea of the sovereignty of the people is, that the people can change the Constitution if they please; but while the Constitution exists, they must conform themselves to its dictates.” – James Madison

“...fundamental republican principles...admits the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness... Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act.” – Alexander Hamilton

“If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” – George Washington

Scalia advanced what he called “the best debaters argument” against the concept of a “living” Constitution. An originalist judge bases his decisions on the original meaning of the Constitution. The people adopted the Constitution, and can alter it by amendments adopted democratically by the people. Thus, judges who base their decisions on the meaning of the Constitution are deciding on the basis of what the people intend. But if the living Constitution judge rejects the controlling authority of original meaning – and thereby rejects what the people intend – upon what does he base his decisions?

This question goes to the very heart of the meaning of self government. We have already seen the Supreme Court base its decisions on foreign laws and foreign court decisions, on unratified treaties, and on what Supreme Court Justice Ginsburg called “comparative dialogue” and “good thinking foreign sources” (“good” as determined by the unfettered discretion of Justice Ginsburg) – none of which the American public has any ability whatsoever to influence. This is a process that one commentator called the “spontaneous amendment” of the Constitution. Scalia said, “I don't think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text, and even from the traditions, of the American people.”

Scalia then explained why the confirmation of judges has grown so contentious:

“If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience a new constitution with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right and the other right. We want to pick people that would write the new constitution that we would want.”

We are now, Scalia says, at “the point of selecting people to write a constitution [emphasis added], rather than people to give us the fair meaning of one that has been democratically adopted.” Nine justices on the Supreme Court writing a new Constitution as they see fit, and then mandating that the entire nation obey, is a decidedly undemocratic process which results in meanings that were never adopted or ratified by the people, but which are imposed upon them without their consent. Recall the words of our Declaration of Independence: “…governments are instituted among men, deriving their just powers from the consent of the governed”.

If we believe these words still have meaning, what can we say about a government that exercises powers which were not derived from the consent of the governed? And let’s not forget that the federal judiciary has declared itself to be the final authority – subject to no higher authority or control – in relation to both the Legislative and Executive branches, and the People. James Madison (Federalist # 47):

“The accumulation of all powers, legislative, executive, and judicial in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

The restoration of self-governance and federalism according to original constitutional intent seems further away than ever. Originalist judges are routinely vilified as “outside the mainstream”. Leftists consider the Constitution itself to be “outside the mainstream”. The failure of our schools to teach fundamental constitutional principles has convinced the public that unchallengeable pronouncements from judges is how we are supposed to be governed.

Elections grow less relevant as our governance is increasingly dictated by a multitude of unelected bodies. Unelected government agencies promulgate millions of pages of regulation over our everyday lives, writing rules with the force of law that even many of them can’t understand, but the very incomprehensibility of which serves as a useful tool with which to threaten the population into subservience. In many instances it doesn’t even require a showing of criminal intent for someone to end up in jail. The 9/11 Commissioners recently demanded that their nostrums of national security be implemented, and said they intend to “hold the government’s feet to the fire” until that happens. Their ideas may be excellent or they may be foolish, but nobody elected them to make those decisions. To whom are they accountable?

There may yet be hope for the revival of self-government. After decades of being ruled from on high by courts imposing dictates that everyone outside the ACLU sees as ludicrous or harmful to society, the public finally seems to growing weary of being told by elitists that they’re too stupid to manage their own lives. But maybe that’s too optimistic.

In March, it was widely reported that enactment of the Bipartisan Campaign Reform Act (BCRA) was, as one account put it, “a carefully crafted fraud perpetrated by political groups”, accomplished by creating the appearance of a grass-roots movement favoring BCRA that did not, in fact, exist. The effort was funded by well-known left-wing groups. It has now been several months since the details of this massive hoax were revealed in a videotape reportedly showing a former high-ranking member of one of those groups boasting how the public, the congress, and the media were hoodwinked – and there has been barely a murmur of outrage from anyone.

Naturally the media is not concerned that they were duped; after all, the effect of BCRA is to give them more power to misinform the public without contradiction. But there has been no anger from congress either, including BCRA’s prime sponsors, Senators McCain and Feingold, or Congressmen Shays and Meehan. We can only speculate why they are so uninterested that they were manipulated. And there’s been barely a ripple of protest from an apparently uninterested public. Nobody seems to care.

See the TYSK Library for links to the
U.S. Constitution
Declaration of Independence
The Federalist Papers
and much more.

The above article is the property (copyright) of Kim Weissman, and is reprinted with his permission.
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