Americans need to ask themselves the following question: Do I want the courts to decide cases on the basis of good public policy, or do I want them to decide them on the basis of what the Constitution says?
Nearly every ruling of the U.S. Supreme Court, including the recent overturn of the Washington, D.C., gun ban confronts us with this dilemma.
Naturally, most Americans want their own opinions to prevail in court cases, just as they would like their opinions to prevail in legislative debates or in elections.
However, the courts were never established for this purpose. Courts were established to uphold the existing laws, and, in the case of the U.S. Supreme Court, to uphold the U.S. Constitution.
While I’m gratified that the Constitution was upheld in the D.C. case, I am alarmed it came in a 5-4 ruling. That means we are just one Supreme Court justice away from a ruling that proclaims the Constitution unconstitutional!
Of course, it wouldn’t be the first time it has happened in American history. And it usually occurs when a decision of the court is popular because it seems to uphold justice and is in line with popular opinion.
Such was the case in one of the most celebrated Supreme Court rulings of the 20th century – Brown v Board of Education.
I know what you’re thinking: “Please, Farah, tell me you are not going to say this widely acclaimed 1954 ruling banning racial segregation of schools was wrong?”
As the new book, “Who Killed the Constitution?” by Thomas E. Woods Jr. and Kevin R.C. Gutzman shows, I am absolutely persuaded Brown v Board of Education was wrongly decided. In fact, I would say the decision of the U.S. Supreme Court was unconstitutional on its face.
I know this puts me in dangerous company. I know there are those out there who will call me a racist for saying it. I know it’s yesterday’s battle, and there is little good that can come from opening up this old can or worms.
However, it is bad precedent law that is subverting the Constitution day by day, year by year, piece by piece in ways that has brought us to the point in which politicians and judges can do pretty much whatever they want without a thought as to the shackles the founding document placed on them with the intent of preserving liberty for the people.
As Woods and Gutzman state it: “To make exceptions for government actions that seem ‘right’ but aren’t consistent with the Constitution is to make arbitrary, and quite dangerous distinctions. Doing so breaks ‘the chains of the Constitution’ that in [Thomas] Jefferson’s memorable phrase, are needed to ‘bind down’ politicians. Once we allow the government to go outside the bounds of the Constitution, we have created a precedent for other extra-constitutional actions later.”
The authors build a persuasive case that the court could not arrive at its conclusion on the basis of precedent law, legislation by Congress, nor the Constitution. Brown was clearly a case of a group of justices determining which policy outcome they preferred and ruling accordingly – in spite of precedent, in spite of the will of Congress and in spite of the Constitution.
Of course, it wasn’t the first time it happened – though it may be one of the most shameless displays of justices assuming the role of legislators.
Interestingly, the outcome the justices hoped to achieve – namely desegregated schools – failed to materialize. If you say to yourself: “Well, it might have been a bad decision, but at least some good emerged from it,” I urge you to think again.
Far from it. If you think segregated schools are a thing of the past, I urge you to visit a few institutions of public education in the Washington, D.C., system – even a few blocks from the Supreme Court building.
Which leads me to believe, following the Constitution is not only the right thing to do as a matter of principle, it is the right thing to do as a matter of policy.