In Federalist No. 78, Alexander Hamilton assured us that our fears of the judiciary were mislaid, unfounded even. He wrote that “whosoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Little could Hamilton have imagined the megalomaniacal judiciary or Congressional dereliction of our present state.
He continued, “This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power [The celebrated Montesquieu, speaking of them, says: “Of the three powers above mentioned, the judiciary is next to nothing.”]; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’ And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.”
Hamilton wrote, “Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.” He emphasized that, “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.” Hamilton appears not to have even entertained the notion that the very Article V amendment process he alluded to here would be circumvented by the judiciary. He appears not to have anticipated that the very meaning of “fundamental” would be revolutionized, nor to have asked, “Who watches the watchmen?”
We must note that judicial review is not the same thing as judicial revision. Judicial review was formulated in very narrow terms, only “as a means of policing the constitutional boundaries, the ‘limits’ of a given power.” Judicial review was not conceived of as a “license to supersede the exercise of power by the other branches within those boundaries. In fact, judicial participation in legislative policymaking was unmistakably excluded” by the Founders. The Court is not empowered to “strike down” anything at all. Indeed, during the Constitutional Convention of 1787, Edmund Randolph’s “Virginia Plan” called for a “Council of Revision” of legislation, where the President “and a convenient number of the National Judiciary” would “examine every act of Congress and by its dissent…constitute a veto.” Aside from Randolph, George Mason, James Wilson, and, perhaps most importantly, James Madison, each supported the proposal. Despite the influence of these luminaries, the Framers rejected the proposal “for reasons that unmistakably spell out the exclusion of the judiciary from even a share in policymaking.” Nathaniel Gorham stated that “as Judges, they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures.” Elbridge Gerry concurred, noting that “it was quite foreign from the nature of ye office to make them judges of the policy of public measures…It was making Statesmen of the Judges; and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the people as the guardians of their Rights and Interests. It was making the Expositors of the Laws, their Legislators which ought never to be done.” Charles Pinckney wholeheartedly opposed “the interference of the Judges in the Legislative business.” Rufus King agreed that, as “the judges must interpret the Laws, they ought not to be legislators.” We could go on, as the examples cascade. Plainly, Berger concluded, “the Framers refused to make the judiciary ‘law-givers’, even to the extent of allowing them to share in the legislative making of law, let alone finally to decide on policy, an exclusively legislative function. They drew a line between the judicial reviewing function, that is, policing grants of power to [e]nsure that there were no encroachments beyond the grants, and legislative policymaking within those bounds.”
The notion that judges could make law as an instrument of social change was “altogether alien to colonial thinking.” The idea that the “fundamental” law was alterable by the judiciary was diametrically opposed to the Framers’ very intent in creating a “fixed Constitution.” Chief Justice Hutchinson of the Massachusetts Supreme Court wrote quite presciently in 1767 that “the Judge should never be the Legislator: Because then the Will of the Judge would be the Law: and this tends to a State of Slavery.” Edward Gibbon agreed that, indeed, “the discretion of the judge is the first engine of tyranny.” Similarly, Lord Camden wrote that “the discretion of a Judge is the law of tyrants…In the best of times it is often…caprice — in the worst, it is every vice, folly, and passion, to which human nature is liable.” Berger stated that it was evident that “no one remotely intimated that there would be judicial power to rewrite the Constitution. Nothing could have been better calculated to defeat ratification than a claim of judicial power that would leave the States altogether at the mercy of the federal courts.” Indeed, Justice James Iredell wrote of the Framers that, “having ‘smarted’ under the ‘omnipotent power of the British Parliament’…we should ‘have been guilty of…the grossest folly’ had we ‘established a despotic power among ourselves.’” As Berger remarked to this, “if this could be said of a legislature that could be turned out of office periodically, constitution-makers were even less ready to entrust unlimited power to an untried, unelected judiciary appointed for life.”
Justice William Douglas wrote in his Flast v. Cohen concurrence that “when the Court used substantive due process to determine the wisdom or reasonableness of legislation, it was indeed transforming itself into the Council of Revision which was rejected by the Constitutional Convention.” Chief Justice John Marshall wrote in Osborn v. Bank of the United States that “judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature.” In Kamper v. Hawkins, Judge James Henry of the Virginia Supreme Court wrote that “the judiciary from the nature of the office…could never be designed to determine upon the equity, necessity, or usefulness of a law: that would amount to an express interfering with the legislative branch…[N]ot being chosen immediately by the people, nor being accountable to them…they do not, and ought not, to represent the people in framing or repealing any law.” In Ware v. Hylton, Justice Iredell declared that “considerations of policy, considerations of extreme magnitude” were “certainly entirely incompetent to the examination and decision of a Court of Justice.”
For most of its first 150 years, the Court was content with its negative “boundary-policing” function. Berger stated that “it fell to the Warren Court to initiate policy when the legislative and executive failed to act, to take the lead in deciding what national policy ought to be. But the failure of Congress to exercise legislative power does not vest it in the Court.” The Court began to conceive of itself as the “national conscience”, the “moral voice” of America; as Berger sardonically remarked, “If Frenchmen would not be free and virtuous voluntarily, then [Robespierre] would force them to be free and cram virtue down their throats.” Berger asserted that there was “not a shred” of evidence to even remotely suggest “that the Founders contemplated that judges would serve as arbiters of morals. Their function…was merely to ‘construe’, to ‘interpret’ laws, not to infuse them with moral content. Having rejected judicial participation in policymaking, the Framers were little likely to embrace judicial supervision of morals. What ground was there for attributing special competence to judges in the field of morals?” Thomas Jefferson said it best: “I cannot give up my guidance to the magistrate, because he knows no more the way to Heaven than I do, and is less concerned to direct me than I am to go right.”
Those that argue for the fictional power of judicial revision often cite Chief Justice Marshall’s notorious dictum in McCulloch v. Maryland, that “this provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.” As Berger put it, “Commentators at a loss to justify judicial arrogations fall back on” and have an “incantatory reliance on” this concept of the “living Constitution.” Berger argued that, to the contrary, Marshall’s words “have been removed from context…he flatly repudiated the revisory power…attributed to him…this was merely a plea for some freedom in the ‘choice of means’ to execute an existing power, not for license to create a fresh power at each new crisis.” James Madison was among the army of men who assailed McCulloch, rejecting “the replacement of the amendment process by judicial revision as an ‘assumption of powers never meant to be granted.’” To Madison’s quite valid charge, Marshall replied that the phrase “does not contain the most distant allusion to any extension by construction of the powers of Congress. Its sole object is to remind us that a constitution cannot possibly enumerate the means by which the powers of government are to be carried into execution.” Marshall asserted that the exercise of the judicial power to decide all questions “arising under the Constitution and laws” of the United States “cannot be the assertion of a right to change that instrument.” In other words, Marshall was really making an argument with reference to the “Necessary and Proper” Clause of Article I, Section VIII; we must add to Berger’s argument, though. What is “necessary and proper” in the execution of Congressional power presumes that Congress has the power to act in the first place. Furthermore, Marshall’s expansive reading of “necessary” is the opposite of what the Framers intended; the antonym of “necessary” is “unnecessary”, meaning that “necessary” is employed restrictively, as in, “absolutely crucial.”
In fact, even what Marshall did intend is still ominous, for herein is the creation of “incidental or implied unenumerated powers”; this concept of “implied enumeration” is oxymoronic to the extreme, one of the first doors, if not the first, through which the Tenth Amendment was abrogated. President Andrew Jackson saw this and rebutted Marshall’s “construction” in his 1832 veto message, blocking the re-chartering of the second Bank of the United States. President Jackson wrote that “mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered well settled…The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both…Thus may our own powers and the rights of the States, which we cannot directly curtail or invade, be frittered away and extinguished in the use of means employed by us to execute other powers…There are no necessary evils in government. Its evils only exist in its abuses…Nor is our Government to be maintained or our Union preserved by invasions of the rights and powers of the several States. In thus attempting to make our General Government strong we make it weak. Its true strength consists in leaving individuals and States as much as possible to themselves — in making itself felt, not in its power, but in its beneficence; not in its control, but in its protection; not in binding the States more closely to the center, but leaving each to move unobstructed in its proper orbit.” In any case, Chief Justice Marshall did not advocate for judicial revisionism; as Berger said, “If the Constitution is to be altered by judicial fiat, let it not be under seal of a reading Marshall himself repudiated.”
Some may read the foregoing discussion and respond, “Okay. I see what you mean, and I understand everything. But…so what?” So what? As Lord Chief Justice Denman wrote, “The practice of a ruling power in the State is but a feeble proof of its legality.” Thomas Cooley wrote that “acquiescence for no length of time can legalize a clear usurpation of power.” We have by now proven that often, what the judiciary cloaks in the garb of “constitutionalism” is manifestly unconstitutional. Berger forcefully and wonderfully argued that “it is never too late to challenge the usurpation of power; one gains no title by prescription against the government, still less against the sovereign people. Power reserved to the [States] by the Tenth Amendment cannot be taken over by ‘squatter sovereignty.’…Usurpation—the exercise of power not granted—is not legitimated by repetition.” Dante observed that “usurpation of a right does not create a right.” To disavow and correct past depredations “is to pledge anew to abide by the Constitution, which the Justices are sworn to support.” Under our Constitution, a systematic delegation of limited and reserved powers, “the burden is on a claimant to point to the source of his power — failing which, it is a usurpation.” The Founders were essentially united in their belief in “a fixed Constitution of unchanging meaning. They accorded an inferior place in the federal scheme to the judiciary, deriving from suspicion of innovations by judges theretofore regarded with ‘aversion and distrust’…They were attached to the separation of powers and insisted that courts should not engage in policymaking but act only as interpreters. Above all, judges were not to act as revisers of the Constitution, for that function had been reserved to the people themselves by Article V, the provision for amendment of the Constitution.” Berger asserted that, “until the Court candidly discloses…that it is ‘making new law for a new day’, the people can hardly be held to acquiesce in what they have not been told. They have been told that the Court speaks with the voice of the Constitution; they are constantly told that ‘the Constitution (not the Justices) requires.’ And that cannot be converted into ratification of progressive judicial violation of its limits.”
In Eakin v. Raub, Justice John Gibson wrote that “precedents ought to go for absolutely nothing. The Constitution is a collection of fundamental laws, not to be departed from in practice nor altered by judicial decision, and in the construction of it, nothing would be so alarming as the doctrine of communis error, which offers a ready justification for every usurpation that has not been resisted in limine…the judge who asserts [the right of judicial review] ought to be prepared to maintain it on the principles of the Constitution.” As we have touched upon, the very idea of following “precedent” is a sick illusion. How can we refer to our inexorable motion ever farther away from the Framers’ design as “precedent”? The very nature of “precedent” is meant to reinforce the permanent truths, the bedrock upon which our society is founded; the precedential nature of constitutional jurisprudence is inherently traditionalist and originalist. Continuing headlong into the night, deeper and deeper into the slough of despair, continuing to travel down the wrong path, cannot be following precedent. A return to precedent has to be a return to the Founding. The Constitution is the embodiment of “fundamental choices that have been made by the people, and the task of the Courts is to effectuate them, ‘not [to] construct new rights.’ When the judiciary substitutes its own value choices for those of the people it subverts the Constitution by usurpation of power. No dispensation was given to the Court to step outside its powers; it is no less bound by constitutional limits than are the other branches…it was clearly excluded from participation in the making of policy, the function of the legislature…we need to be rid of ‘the illusion that personal power can be benevolently exercised.’”
Berger brilliantly quipped, as to the distinction between review and revision, that “plainly a power to sell a mule does not authorize sale of the barn.” The judicial review that was provided for by the Framers is wholly different creature than the mutant bastard masquerading as judicial review that we are yoked to today, judicial revision. Policing the delineated boundaries of a fixed Constitution is nothing like rewriting and extraconstitutionally “amending” the Constitution. With each step away from the Framers’ design, with each new abrogation of the separation of powers, the Supreme Court has “engaged in a dazzling display of seemingly free-hand constitution-making without apparent concern for the intention of the Constitutors.” The judiciary has thus claimed for itself a panoptic power as “a catalyst of social change with judges acting as planners and even managers of large-scale intervention in social and economic life.” The Court proudly proclaims that it simply knows better than we mere serfs. We are neither credentialed nor imbued with the deep sense of “morality” that historical accident has conferred upon them. Judges, Berger wrote, “are not oracles who, indifferent to the passions of the time, divine the true meaning of the Constitution. What a judge is ‘really discovering…are his own values.” Justice Jackson admitted in West Virginia State Board of Education v. Barnette that “we act in these matters not by authority of our competence but by force of our commissions.” Berger described with aplomb the doctrine of judicial revisionism laid bare: “Baldly stated, if a result is benign, ergo it is constitutional; the end justifies the means. Against the ‘consequences’ of repudiating unconstitutional decisions…should be weighed the cost of countenancing undeniable judicial arrogations of power, the Court’s operation as a continuing constitutional convention. The view that it is too late to effectuate the unmistakable intention of the Framers is tantamount to claiming that long-standing usurpation confers title. But squatter sovereignty does not run against the people. No one, the Court declared [in Walz v. Tax Commission], ‘acquires a vested interest or protected right in violation of the Constitution by long use.’”
Thomas Jefferson wrote that the Constitution is solely to be construed in conformance to the “safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption — a meaning to be found in the explanation of those who advocated it.” In Marbury v. Madison, Chief Justice Marshall asked the imperative question: “Why does a judge swear to discharge his duties agreeably to the Constitution…if that Constitution forms no rule for his government?” Berger emphasized, as we examined in the light of Chesterton’s “democracy of the dead”, that “our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession.” Similarly, Edmund Burke wrote that society is “a partnership not only by those who are living, but between those who are living, those who are dead, and those who are to be born.” The words within the original Constitution, and those within each appended Amendment, are fixed with unalterable meaning at the very moment that they are written, adopted, and ratified. Justice James Wilson believed that “the first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.” In Gibbons v. Ogden, Chief Justice Marshall wrote that if a word “was so understood…when the Constitution was framed…[t]he Convention must have used it in that sense.” In Eisner v. Macomber, Justice Holmes declared that any Amendment must be read in the “sense most obvious to the common understanding at the time of its adoption.”
In the debates of the Thirty-Ninth Congress, the framers of the Fourteenth Amendment bequeathed us “a transcript of their minds.” The evidence overwhelmingly compels us to conclude that the Amendment was meant only to ban judicial and statutory discrimination with respect to the specifically enumerated “fundamental” rights, each of which carried its own fixed meaning — life, liberty, and property. The unanimous Senate Judiciary Committee Report, signed by the Senators who had voted for the Thirteenth, Fourteenth, and Fifteenth, or “Reconstruction” Amendments, stated thus: “In construing the Constitution we are compelled to give it such interpretation as will secure the result which was intended to be accomplished by those who framed it and the people who adopted it…A construction which should give the phrase…a meaning different from the sense in which it was understood and employed by the people when they adopted the Constitution, would be as unconstitutional as a departure from the plain and express language of the Constitution in any other particular.”
The amendment process outlined in Article V is the exclusive means by which the Constitution may be altered, “under the long-standing maxim that to name a particular mode is to exclude all others.” Amendments were designed to be extremely difficult to achieve, because of the sheer gravity of the task undertaken; it is imperative that this is so, for the alternative is the perpetual revolutionary Year Zero that the Regime has inculcated. Elbridge Gerry confirmed this, stating that “the people have [directed] a particular mode of making Amendments, which we are not at liberty to depart from…Such a power [to alter] would render the most important clause of the Constitution nugatory.” Gerry, along with many of the other Framers, believed that it was self-evident that “an attempt to amend” the Constitution by any other means “may be a high crime and misdemeanor”, i.e., an impeachable offense. Alexander Hamilton agreed, declaring that “judges who usurped power, for example, exercised a power withheld…could be impeached.” Wise words. Kritarchy far exceeds the boundaries of “good behavior.” Judicial contravention of the will of the people is an assault on our nation; merely take the issue of obscenity as an example—as the result of the Court’s obscenity rulings, unsupported by popular mandate or historical precedent, “the nation is deluged by a flood of blatant pornography and filth that the people are powerless to deal with.” From whence, then, does this assumed power of the Court to jettison Article V and “impose a solution on the people that confessedly could not have obtained their assent” arise? This inquiry is one of the most important tasks we may embark upon, for, as John Adams said, “A frequent recurrence to the fundamental principles of the Constitution…[is] absolutely necessary to preserve the advantages of liberty and to maintain a free government…The people…have a right to require of their law givers and magistrates an exact and constant observance of them.”
Power lusts for power, as the horizon endlessly recedes. Berger remarked that “it is axiomatic that all wielders of power, judges included, ever thirst for more.” James Madison understood this, that “power is of an encroaching nature…it ought to be effectually restrained from passing the limits assigned to it.” Thomas Jefferson affirmed that “it is jealousy and not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power…In 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.” At the Virginia Ratification Convention, Francis Corbin said that “liberty is secured…by the limitation of [the government’s] powers, which are clearly and unequivocally defined.” In the First Congress, James Jackson emphasized that “we must confine ourselves to the powers described in the Constitution, and the moment we pass it, we take an arbitrary stride towards a despotic Government.” The Founders all of a piece shared a commitment to written limits on power. Any and every exercise of power absolutely must be predicated on a concrete source, which can only ever be the fixed meaning of the Constitution. Berger explained that the Constitution was written “to make certain that men in power would be governed by law, not the arbitrary fiat of the man or men in power”, “according to the ‘law of the land’, not by the ‘law of judges’…Our system is committed to ‘equal justice under law’, not to ‘Justices above the law.’ They were not authorized to revise the Constitution in the interests of ‘justice.’”
As Jefferson wrote, “I had rather ask for an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is the possession of a written Constitution. Let us not make it a blank paper by construction. If [power is boundless] then we have no Constitution. If it has bounds, they can be no other than the definition of the powers which that instrument gives.” That “definition” was concrete and eternal, “to be read in light of the explanations made to those who ratified the Constitution.” Following the logic of originalism, Justice George Sutherland asserted in Home Building & Loan Association v. Blaisdell that “the whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent, of its framers and the people who adopted it…As nearly as possible we should place ourselves in the condition of those who framed and adopted it.” The Court’s contention that favored policies are “constitutional”, and disfavored “unconstitutional”, is a substitution of its value choices for the choices carefully made by men far greater than we; it is the epitome of folly, tearing asunder “the basic principle of government by consent of the governed…No power to revise the Constitution under the guise of ‘interpretation’ was conferred on the Court; it does so only because the people have not grasped the reality—an unsafe foundation for power.”
Judge Learned Hand called attention to the sordid fact that judges “wrap up their veto in a protective veil of adjectives such as…‘reasonable’, ‘inherent’, ‘fundamental’…whose office usually…is to disguise what they are doing and impute to it a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision.” Berger noted that, just “as in the case of the Chinese ‘mandate from heaven’, we learn a right is ‘fundamental’ only after the Court attaches that label.” Hamilton wrote in Federalist No. 25 that “every breach of the fundamental laws…impairs the sacred reverence which ought to be maintained in the breasts of the rulers towards the Constitution.” President George Washington, the American Cincinnatus, said it best in his Farewell Address: “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 in 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. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.”
The judiciary now governs on behalf of the Egalitarian Regime as a panel of self-appointed Platonic Guardians with a narcissistic savior complex. As Justice Hand said, the Supreme Court cloaks its own whims and fancies for the “self-evident” beliefs of the Founders, a totemic appeal to an historical precedent that simply does not exist. Robert Bork, erstwhile Supreme Court nominee, said that the Court “regularly insists that its results…do not spring from the mere will of the Justices in the majority but are supported, indeed compelled, by a proper understanding of the Constitution…Value choices are attributed to the Founding Fathers, not to the Court.” As Bork observed, “The way an institution advertises tells you what it thinks its customers demand.” Donald Santarelli, Associate Deputy Attorney General in the Nixon Administration, spoke quite candidly on this matter: “The Constitution is flexible…Your point of view depends on whether you’re winning…The language of the Constitution is not at issue. It is what you can interpret it to mean in the light of modern needs. In talking about a ‘Constitutional crisis’ we are not grappling with the real needs of running the country but are using the issues for the self-serving purpose of striking a new balance of power…Today, the whole Constitution is up for grabs.”
Berger wrote that “to thrust aside the dead hands of the Framers is to thrust aside the Constitution. The argument that new meanings may be given to words employed by the Framers aborts their design; it reduces the Constitution to an empty shell into which each shifting judicial majority pours its own preferences.” “Constitutional law”, the cuckoo bird masquerading as the Constitution, is “given a ‘new look’ when a Warren succeeds a Vinson…The changes can be fateful. Vinson ‘held fast to the position that the judiciary should not be an aggressive instrument for invalidating school segregation.’ He was succeeded in the midst of the desegregation case by Warren, and…’in conference at least three Justices came close to dissenting until their new Chief put on all the pressure he could wield.’…Citations can be multiplied. Should what is ‘socially desirable’ for a nation of [350 million] people turn on such accidents? Should grave national policy be the sport of circumstance?” In Oregon v. Mitchell, Justice John Harlan II wrote that, “when the Court gives the language of the Constitution an unforeseen application, it does so…in the name of some underlying purpose of the Framers…[T]he federal judiciary…has no inherent general authority to establish norms for the rest of society…When the Court disregards the express intent and understanding of the Framers, it has invaded the realm of the political process to which the amending power was committed, and it has violated the constitutional structure which it is its high duty to protect.” Berger made the quite terrifying observation that “what the ‘national conscience’ is at any given moment depends on shifting personnel and the nature of the appointees. The replacement of one or two Justices may result in a complete reversal of the prevailing conscience, as when Warren succeeded Vinson. How can we put our trust in a conscience that changes color with every judicial succession, itself subject to shifting political winds?”
The Fourteenth Amendment has thus been replaced in the night with an alien body snatcher. Undeniably, its framers excluded both suffrage and segregation. “Incorporation” of the Bill of Rights against the States was not contemplated. The Amendment, as an embodiment of the Civil Rights Act of 1866, was confined exclusively to the protection of the specifically enumerated “fundamental” civil rights of life, liberty, and property, against statutory and judicial discrimination by the States. The framers deliberately withheld “federal power to supply those rights where they were not granted by the State to anybody, white or black.” “Privileges or immunities”, “due process of law”, and “equal protection of the laws” were not “conveniently vague” “majestic generalities”, but were rather carefully chosen terms of art that expressed these limited aims; we must also remember that the framers were not motivated by abolitionist ideology, or even by anything resembling the egalitarianism and Civil Rights mania with which they have been retroactively imbued. As Berger put it, “Given the clarity of the framers’ intention, it is on settled principles as good as written into the text. To ‘interpret’ the Amendment in diametrical opposition to that intention is to rewrite the Constitution. Whence does the Court derive authority to revise the Constitution? In a government of limited powers, it needs always be asked: what is the source of the power claimed?” Justice Iredell confirmed that any law, or any government action at all, “not warranted by the Constitution…is bare-faced usurpation.” The Court has battered the Fourteenth Amendment far beyond the assumption of powers “not warranted”; the litany of ends to which the Amendment has been put “represent the arrogation of powers that the framers plainly excluded. The Court…has flouted the will of the framers and substituted an interpretation in flat contradiction of the original design”, which was to leave States’ Rights intact.
Chief Justice Warren’s chilling assertion that “we cannot turn back the clock”, Berger remarked, “rejected the framers’ intention as irrelevant. On that premise the entire Constitution merely has such relevance as the Court chooses to give it, and the Court is truly a ‘continuing constitutional convention’, constantly engaged in revising the Constitution, a role clearly withheld from the Court. Such conduct impels one to conclude that the Justices are become a law unto themselves.” Judge Hand wrote that “if we do need a third [legislative] chamber it should appear for what it is, and not as the interpreter of inscrutable principles.” Berger asked, “How long can public respect for the Court, on which its power ultimately depends, survive if the people become aware that the tribunal which condemns the acts of others as unconstitutional is itself acting unconstitutionally?” Not long. Merely witness the political spectacle surrounding the Court today, as well as the ubiquitous habit of Americans to appeal to the Constitution; we deify the Court, hanging onto every last word as the Word of God. Indeed, Gerhard Casper noted that the “American concept of the legitimacy of government is closely tied to the Constitution [“the secular equivalent of the Bible”]. Its limitless manipulation may endanger the very legitimacy that has been the greatest accomplishment of American constitutionalism.” We cannot afford to “tolerate the spectacle of a Court that pretends to apply constitutional mandates while in fact revising them in accord with the preference of a majority of the Justices who seek to impose their will on the nation.” Berger admonished that we must not let it be said of us as Gibbon said of Rome, that “the image of a free Constitution was preserved with decent reverence.” The Western tradition does not blindly uphold “precedent” simply for the sake of precedent, but rather “seeks to rectify, not to build upon, mistakes.” As President William Taft urged us in 1911, “Make your judges responsible. Impeach them. Impeachment of a judge would be a very healthful thing in these times.”
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