OUR EVOLVING CONSTITUTION 


Imagine that you live in Plum Creek, a fictitious, medium size town somewhere in the United States.  It has two high schools, East High and West High.  The rivalry between the two schools' football teams has been a major feature of local culture for decades.  Last year, a boy living next door to your home was playing on the West High team.  He invited you to attend the season finale, the game against East High.  It began with the usual rules; however, East High couldn't seem to move the ball.  The team had big, strong players but they were slow, and they had no passing game.

The referees reacted by announcing some rule changes.  From now on, a team only needed thirty-nine and one half inches for a first down.  And it had five attempts rather than four, but only if it didn't try a pass play.  Any forward pass would end a series of downs.

People sitting near you in the stands were quite upset about the changes.  They were aware that two of the three referees were uncles, and the third a next door neighbor, of East High players.  A committee elected by all the high school coaches in the state had hired the referees.  But they had long term contracts, and it was almost impossible to get rid of one who was biased, corrupt, or incompetent.

Many years ago, the coaches committee had also written a rule book, and all the coaches had then voted to adopt it.  It stated that no rule could be changed without the written approval of three-fourths of the coaches.  It also said, "A first down requires an advance of ten yards or more in no more than four plays."  It didn't say anything about special limits on pass plays.

When irate fans complained about the clearly fraudulent rule changes, the referees brushed them off.  "You don't understand the rule book," they said, "it's a living document which evolves to meet the needs of changing times.  And we have the authority to guide that evolution."

You have just read a rough description of modern U. S. Supreme Court jurisprudence.
 

THE EVOLVING CONSTITUTION SCAM

Just as we trust referees to faithfully follow the rule book, we trust Supreme Court justices to faithfully follow the Constitution.  And we generally accept their power to impose their understanding of that document on other government institutions.  The Constitution didn't assign that power to the lawyer-politicians on the Court, they just claimed it.  And most Americans, most of the time, accept that claim and trust them to use the power honestly.

However, the Court routinely finds material in the Constitution that was never put there by people we elected.  So millions of Americans no longer trust it.  You might be surprised to learn that many legal scholars have implied that the loss of trust is well deserved.  They've acknowledged that Supreme Court rulings are often based on partisan bias and that much of what the Court now claims to find in the Constitution was really made up by the justices themselves [1].

Unfortunately, no one in a position of authority takes those facts to their logical conclusion.  Our legal elites, even those who most strongly disapprove of fraudulent Supreme Court opinions, are too cautious to use the word "fraudulent."  At worst, they'll call a judicial fabrication "mistaken" or "wrongly decided."  And they all support the pernicious fraud that the Constitution "evolves" to incorporate bad Supreme Court opinions.  Never mind what our founders intended to put in the Constitution, they say, and never mind what is written there.  The only Constitution that matters is the one the Supreme Court made up. That, in a nutshell, is the evolving Constitution scam.

Our legal elites would never think of admitting that the Supreme Court is trashing the Constitution.  The consequences of that admission would be too terrible to contemplate: "We the People" might do something rash; we might elect a bunch of radicals that would use the impeachment power to keep the justices honest.  Our elites do not want the Court kept honest; they fear and dislike the idea of a government that's too responsive to the wishes of "We the People."  They're convinced that we're too selfish, fickle, and irresponsible to elect folks who will make wise and just laws.  So it's better that well educated (and politically unaccountable) judges exercise veto power over the small-minded folks we do elect.
 

A LIVING CONSTITUTION

Two or three times each year the Supreme Court issues an opinion which proclaims some surprising new constitutional principle.  Journalists then seek out law professors to explain to their readers why the strange new principle is really on the up and up.  The law professors respond with complex and windy theories asserting that the principle is not new at all, it's just that nobody ever noticed it before.

Never mind that it defies the plain language of the Constitution.  Never mind that it also defies the well documented intention of "We the People" at the time we allowed the relevant constitutional passages to be ratified.  The law professors say that none of this matters.

Surely you wouldn't want to be ruled by the ideas of people who've been dead for 200 years.  Our founders expected that new problems would arise calling for new solutions.  So they gave us a living Constitution which would evolve to meet the needs of changing times.
Then, in their spare time, the professors write books full of hokum to explain how fraudulent Supreme Court opinions are part of the "living Constitution."  And they teach the hokum to their students, the next generation of judges.

It seems quite likely that every law professor has read the Constitution at least once.  So they all know about Article V which our founders included therein to provide a mechanism we could use to amend it, from time to time, so we wouldn't have to be ruled by the ideas of people who were dead for 200 years.  They are also well aware that our founders amended the Constitution, using the mechanism in Article V, eleven times within the first six years after they ratified the Constitution and twelve times within the first fifteen.  So our founders were clearly quite serious about the use of Article V whenever our "living Constitution" needed to be "evolved."  It's hard to escape the conclusion that our entire constitutional law community is participating in a giant scam.

On reflection, it's not too hard to understand why they go along with the scam.  Deep in their heart-of-hearts, they know they are defending judicial usurpation of legislative and executive power, a crime against the Constitution.  However, from their perspective, the alternative would be even worse.  Adhering to the plain truth would be tantamount to admitting that the U. S. Supreme Court is a criminal enterprise.  God only knows what terrible changes would follow if the public got wise to that.
 

STARE DECISIS

A key element in the evolving Constitution scam is the legal principle of "stare decisis," which we inherited from English common law.  According to Black's Law Dictionary, stare decisis (a Latin term) means "to abide by, or adhere to, already decided cases."  Most of the time judges follow, or at least pretend to follow, earlier precedents in their decisions.  In doing this, they embrace the teaching of Niccolo Machiavelli, author of The Prince, a well known early Sixteenth Century handbook for results oriented politicians.  Machiavelli advised his students to avoid backing off from bad decisions: ". . . a prince is contemptible when he is counted . . . inconstant . . . and . . . irresolute; and of this he ought to be as careful as of a rock in the sea."

Supreme Court justices, therefore, usually follow the rule of stare decisis, confirming earlier decisions they know to be wrong.  As a result, our Constitution is being gradually replaced by an imposter.
 

THE THEORY OF EVOLUTION

Let's all agree that we need a "living Constitution" which "evolves" to meet the needs of changing times.  We've been presented with two mechanisms of evolution, a legitimate one that is mandated by the Constitution itself in Article V, and a fraudulent one that was developed by our legal aristocracy.  In this section we'll see if either mechanism is consistent with the theory of evolution [3].

The theory depends on two key ideas, "random mutations" and "natural selection. " Mutations are genetic accidents; the theory of evolution holds that the mutations occur randomly, that is purely by chance.  "Natural selection" is just another way of saying the survival of the fittest.  The environment automatically selects for survival those mutations best suited to survive and thrive in it.  After many generations, descendants of the more "fit" mutants exist in great numbers and the less "fit" members of their ancestral species have died out.  Operating over very long times, these processes can bring about dramatic changes.  For example, some life scientists believe that modern birds evolved from dinosaurs [4].

The theory of evolution seems to be an apt metaphor to describe the legitimate (Article V) approach to evolving our Constitution.  In a large, diverse republic with many states numerous policy ideas for reform and adaptation occur randomly each year.  Most of them are not good enough to justify amending our fundamental law.  Occasionally, the political environment (a consensus of "We the People" which persists for years) selects a new idea for incorporation in the Constitution, displacing some old ideas in the process.  It's happened twenty-seven times since the dawn of the Republic.

On the other hand, the process by which judges "evolve" our Constitution is not at all consistent with the theory of "evolution;" there are two key points of contradiction.  First, the mutations born in the Supreme Court are not "random."  A special interest group conceives a scheme to amend our Constitution without obtaining the consent of "We the People."  The group's lawyers take the scheme to the U. S. Supreme Court.  For various reasons, a majority of the nine lawyer-politicians on the Court like the scheme.  Corrupted by their partisan biases, they hand down a decision that defies the plain meaning of the constitutional passages they invoke to support it.  That sums up the first difference.  Five or more justices midwife the birth of a mutant whose origins are not "random."  It issues forth from a conspiracy.

The second point of contradiction has to do with the selection process.  Mutants born in the Supreme Court do not have to survive any meaningful test of "fitness."  The Court's policy of following the principle of stare decisis nurtures and protects them all.  This kind of evolution kills off perfectly good members of our living Constitution and replaces them with a menagerie of freaks.  Songbirds disappear and are replaced by big ugly lizards.
 

NOTES AND CITATIONS

1.  See, for example, the books by Raoul Berger and Robert Bork.

2.  Machiavelli wrote The Prince in 1513.  The quotation above is from its Chapter XIX in the 1889 translation by Henry Morley.  The observation that the Supreme Court follows the teachings of Machiavelli is a recurring theme in The Temple of Karnak: How Rogue Judges Have Been Strangling Your Democracy.

3.  Alexis De Tocqueville wrote in his 1835 classic, Democracy in America that in large measure America was actually ruled by an "aristocracy" of lawyers.  De Tocqueville was ahead of his time.

4.  See, for example, "Feathered Dinosaur Ruffles Paleontology," USN&WR, July 6, 1998, page 62, an article by Laura Tangley.  Our description of the theory of evolution is from the National Academy publication by Kennedy and others.  See the Bibliography.

 

For publication information on works cited, check the Bibliography

 

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This article is excerpted from material in Chapter 11 of Grand Larceny: An Unexpurgated History of the Supreme Court.  It also cantains material from The Temple of Karnak: How Rogue Judges Have Been Strangling Your Democracy.

 

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D. J. Connolly