When I hear my local “fiscal conservative/social liberal” drive-time radio talk show hosts espouse the belief that the Constitution is malleable and left to be interpreted by the Supreme Court “for the times” and that the meaning of the Constitution changes with precedents set in Supreme Court decisions, I know we messed up somewhere.
It’s true that a lot people believe that. It’s also true that some Supreme Court Justices believe that (while others have not), as well as some constitutional scholars (while others have not) and many people who have served in government.
But, no matter how esteemed those are who believe it, the belief itself does not make it true. In order to prove their belief correct, they would need to produce evidence. Evidence would be specific passages from the Federalists papers or passages from the writings by the authors of the Constitution.
I agreed with the drive time radio hosts long ago in my life and I earned an A in my high school civics class.
But, on further reflection, that belief doesn’t make much sense.
Why separate government power into three branches — executive, law making (congress) and law enforcing (courts), but also give the law enforcing branch (courts) the power to make law (which is the power reserved for Congress)?
That’s the result of allowing courts to broadly “interpret the Constitution for times”. That doesn’t sound like a power separation to me.
This makes even less sense when you consider the authors of the Constitution put a specific representative process in place to amend the Constitution if need be: Article V: Amendment.
I recommend for anyone who agrees with my local drive time hosts to read this week’s column from Walter Williams, What Our Constitution Permits. Here’s an excerpt (emphasis added).
You might think, for example, that there’s constitutional authority for Congress to spend for highway construction and bridges. President James Madison on March 3, 1817 vetoed a public works bill saying: “Having considered the bill this day presented to me entitled ‘An act to set apart and pledge certain funds for internal improvements,’ and which sets apart and pledges funds ‘for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,’ I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States and to return it with that objection to the House of Representatives, in which it originated.”
Madison, who is sometimes referred to as the father of our Constitution, added to his veto statement, “The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers.”
Here’s my question to any member of the House who might vote for funds for “constructing roads and canals, and improving the navigation of water courses”: Was Madison just plain constitutionally ignorant or has the Constitution been amended to permit such spending?
I’m adding Walter’s final question above to my list of questions the media should ask political candidates. They should also ask it of Supreme Court candidates as well.