I’m not a particularly learned student of history and even less so of the law. In spite of this, I have a deep and abiding respect of and love for the U.S. Constitution.
This love has, like with most great loves, instilled some strong convictions and hard-held opinions. The most significant of these is my belief that Americans are, in general, painfully unaware of the import of our courts and the Constitution.
Many people are only too eager to invoke the power of the Constitution in myopic, self-serving efforts to advance a particular political agenda or social cause. The Bill of Rights does lend itself to such abuse. What is often forgotten is that those rights are framed in a much larger and equally significant document.
Recent history has demonstrated an interesting cast of characters in our courts. Not surprisingly, it is the U.S. Supreme Court that has been cast as the main character in this unfolding drama. And, as in most good dramas, this character is deeply flawed. The Supreme Court has, for the past 45 years, engaged in activity that has not only shaped our culture, but the Constitution itself. I suggest it might be time to take the Constitution back.
While many will disagree, I believe the 1965 Supreme Court decision in Griswold v. Connecticut could be identified as the turning point for the court. It is, in my opinion, the pivotal decision that set the court on a path of judicial activism that remains in place today.
Interestingly, it was the liberals who heralded the court’s activism through the 1960s and ‘70s. Far-reaching liberal agendas were advanced and given the court’s blessing. But judicial activism is a knife that cuts both ways, and today’s court has become a bane to liberals and the sweetheart of the far right.
Returning to Griswold v. Connecticut, I was drawn to the dissenting opinion of Justice Hugo Black, who wrote prophetically, “I repeat, so as not to be misunderstood, that this court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts, and worse for the country.
“Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up, and, at the same time, threaten to take away much of the power of states to govern themselves which the Constitution plainly intended them to have.”
Justice Black’s call for judicial restraint was roundly ignored, and the decision in Griswold v. Connecticut ushered in, as Justice Black foresaw, an era of unrestrained judicial activity. The “great unconstitutional shift in power” occurred, and I would suggest every caveat Justice Black advanced has come to pass.
Whether you are liberal or conservative, it is in everyone’s interest for the people to rescue the Constitution from the courts. The only way that will be accomplished is through the amendment process. That is the mechanism the framers of the Constitution put in place in order for it to be a living document, able to adapt to a changing world. It is a mechanism we have too long ignored.
And so let me boldly advance my first choice for the next amendment to our Constitution. “No nationally organized political party or candidate for federal office shall accept contributions from any corporation, political action committee or any other legal entity foreign or domestic. Contributions made to nationally organized political parties or to campaigns of candidates running for federal office can only be accepted from individual citizens of the United States of America.”
This is how we can respond to a Supreme Court run so amuck. This is how we, as a people, can reclaim our constitutional protection and privilege. While this is almost certainly an exercise in futility, such exercises have been the source of all political progress and substantive change. I think I find myself in good and welcome company.