If there were any lingering doubts that the Constitution of the United States is largely irrelevant to what our government is now doing and plans to do in the future, recent events have surely dispelled them. Actually, for some time, that tattered old document has had little to do with the actions of legislators, judges and presidents. Most of our laws have essentially no traceable or definable relationship to the letter or the spirit of the Constitution.
This is to say, it wouldn’t take much to push the Constitution off the judicial stage and into, as we commentators like to say, the garbage can of history. Time will tell whether such a push was recently administered by Sen. Charles Schumer, in his capacity as chairman of the Judiciary Courts subcommittee.
On June 26, 2001, Sen. Schumer advised all attentive Americans that the Democrat members of the U.S. Senate would apply ideological (political) litmus tests to judges nominated by President George W. Bush. Nominees will be asked questions about their personal and legal positions on key issues, including but not limited to: abortion, gun control, homosexual rights, campaign financing, tobacco legislation, states rights, property rights, school choice, environmentalism and separation of church and state.
To what end? Sen. Schumer makes it crystal clear by asserting that the Senate has the right to oppose nominees “whose views fall outside the mainstream.” In this context, it is not inappropriate to note that on most of these issues, the ideology of most conservatives falls well outside Sen. Schumer’s personal “mainstream.”
Sen. Schumer’s announcement of his party’s intention to do ideological tests runs counter to 200 years of tradition, during which the Senate, with a few exceptions, conscientiously worked at insulating judges from politics.
Tom Jipping of the Free Congress Foundation spoke for many legal experts when he noted in the Washington Times that “demanding to know how a judge will rule on issues is demanding that he violate his judicial oath before even taking it.”
It may be confidently asserted that if former Senate Judiciary Committee Chairman Orrin Hatch had announced in advance that he and other Republicans planned to probe Supreme Court nominee Ruth Bader Ginsburg’s liberal views and vote against her confirmation if she seemed too radical, the mainstream media would still be howling over the unfair litmus test.
In retrospect, this aggressive move by the Democrats to politicize the courts could have been expected. In his last debate with Bill Bradley, Al Gore declared that “the Constitution is a living and breathing document … intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.”
George Washington was truly familiar with what was intended by our Founders. He said this in his Farewell Address: “the Constitution … till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. …” He emphasized his point with these words: “Let there be no change by usurpation … it is the customary weapon by which free governments are destroyed.”
The Constitution has been changed by usurpation. It was not amended to legalize the expansion of the federal government. For example, the 10th Amendment to the Constitution, which limits the federal government to specific powers, while retaining everything else for the states and the people, was not repealed – it was simply abandoned.
At the other extreme, a simple clause in the Constitution dealing with interstate commerce, to keep states from setting up trade barriers, was expanded to mean the federal government could do essentially anything it wanted to do. As the Constitution was being turned upside down and perverted, a succession of presidents and legislators, vows forgotten, looked on as silent accessories.
In 1907, Chief Justice Charles Evans Hughes inadvertently prophesied the death of constitutional government when he proclaimed, “the Constitution is what the judges say it is.”
His thought was echoed by former U.S. Associate Justice Felix Frankfurter in 1949: “The words of the Constitution … are so unrestricted by their intrinsic meaning or by their history or by tradition or by prior decisions that they leave the individual Justice free, if indeed they do not compel him, to gather meaning not from reading the Constitution but from reading life.”
Frankfurter might as well have said, as did Louis XIV, “L’etat, c’est moi.” (I am the state.)
The struggle in America today is between those who want to return us to constitutional principles and the religious values that inspired them, and those who have been corrupted by their fraudulently acquired power and cannot bear the thought of returning it to its rightful owners, namely the people.
We are on the slippery slope.