Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (2 page)

From Affirmative Action to Sodomy

Affirmative action

Sex discrimination and the Fourteenth Amendment

The Supreme Court and "privacy"

The Supreme Court's electoral interventions

Conclusion
219

Appendices

The Articles of Confederation
223

The Declaration of Independence
229

The Constitution of the United States
231

Acknowledgments
241

Notes
243

Index
245

ew subjects in American life are so thoroughly mystified, so completely surrounded by a myth of incomprehensibility, as the
United States Constitution. From its earliest days, its exponentschiefly lawyers and judges, but with a helping of other politicians, journalists, and authors of various kinds thrown in-have trained the people
at large to believe that only the few, the specially trained "elite," can
understand it. If court rulings "interpreting" the Constitution defy common sense, well, that must be because common sense is so ... common.

In introductory lessons about America's federal government, students
are introduced to the ideas of "republicanism," "limited government,"
and "federalism." Republicanism refers to a system in which policymakers are chosen through popular elections. Limited government and federalism are simply two sides of the same coin. They are different ways of
understanding a system in which the states came first, delegated some
carefully enumerated powers to a central government, and retained the
rest for themselves.

But in what sense is our federal government limited? What remains of
the idea that power over almost all significant issues is retained by the
states? Why is it, in other words, that issues such as homosexual sodomy,
abortion, and affirmative action-not to mention prayer in schools and
the outcome of the 2000 presidential election in Florida-are decided by federal judges? What ever happened to republicanism, limited government, and federalism?

In recent decades, numerous judges-and particularly the Platonic
guardians on the Supreme Court-have undertaken to use the Constitution as a blank check allowing them to write into American law their own
ideas of "the evolving standards of decency that mark the progress of a
maturing society," as Chief Justice Earl Warren put it in Trop v. Dulles
(1958). Note the allusion to Darwin's theory of evolution here: if the
judges' conceptions of decency differ from those of all their predecessors,
then today's judges must be superior to their predecessors, because they
have "evolved" within their "maturing" society. And of course, if the
judges' ideas differ from those of the majority of the electorate, that only
shows how much further the judges have evolved and how superior they
really are.

This is not to say that every federal judge, or every judge on the
Supreme Court, fancies himself a Platonic guardian. But it is to say that
judges face few constraints on foisting their own views on the people as
"constitutional law." Yet for a judge today disinclined to legislate "constitutional law," the obstacles to self-restraint are formidable. First, he
will have to deal with the criticism, and, if he is consistent, eventually
with the derision of the media, of politicians, and of legal academics. Second, and perhaps more important, he will have to escape from the mode
of thought inculcated in him by his legal education.

For a century now, instruction in American law schools has focused
on the "case method." Prospective lawyers do not study the continental,
English, and colonial antecedents of the federal Constitution. Neither do
they read the records of the Philadelphia Convention of 1787, where the
Constitution was written, or the ratification debates that led to its implementation. Instead, they imbibe the latest opinions on constitutional matters from the courts, and particularly from the Supreme Court. Those opinions, and not the Constitution's text as understood by the people
when they ratified it, are what law schools teach as "constitutional law."

This "law" is the product, to a large degree, of the political preferences
(refracted through the constitutional "theories") of judges and lawyers. It
has almost nothing to do with history or with the original understanding
of particular provisions. Thus, asked by a student why his constitutional
law class would not be reading any of The Federalist, a famous constitutional law professor at an elite law school responded that The Federalist
had nothing to do with constitutional law. The sad thing is that the professor was right, because today's "constitutional law" is not constitutional
at all.

Even "originalist" judges' application of the Constitution to real cases,
as we will see, is far removed from Thomas Jefferson's test of the Constitution's meaning: "the true sense in which it was adopted by the States,
that in which it was advocated by its friends." Jeffersonian judges have
seldom dominated the Supreme Court-certainly not in the last threequarters of a century.

This book's goal is to explain how the Constitution was understood in
the first place and then to chronicle the federal courts' history of dealing
with it. It will show how we went from the Constitution's republican federal government, with its very limited powers, to an unrepublican judgeocracy with limitless powers. The approach is historical-to see the
Constitution as we should see it, in its original context, as it was originally understood, and to chart, over the course of two centuries, how we
got from there to here. Perhaps more than anything else, The Politically
Incorrect GuideTM to the Constitution provides further illustration of the
old adage that "absolute power corrupts absolutely."

by do we have a federal constitution, anyway? Before we
can understand the Constitution's meaning, we have to have
an idea of its purpose. There were twenty-six British
colonies in the New World when the American Revolution began. They
had distinct histories, and they had been founded for distinct purposes,
at distinct times, by distinct groups of people.

The British government essentially displayed an attitude of "benign
neglect" toward the American colonies, including the thirteen that ultimately joined together in 1775 to fight for their rights. It did not, for the
most part, legislate regarding their internal affairs, and it did not tax them
internally.

Each of the colonies had its own government, including a governor and
an assembly with a representative element. The colonists grew accustomed to considering their colonial governments as analogous to the
British government in England: the British had their king, House of Lords,
and House of Commons (made up of elected members), while Virginia,
for example, had its appointed governor, its Council, and its House of
Burgesses (the first elective assembly in the New World).

Colonial charters, which described how the government of a particular
colony worked, often included guarantees to the colonists of their rights.
Thus, Virginia's charter said that King James I's colonists there would have all the rights of his subjects in England. When one governor of colonial
Virginia left office, a new one, with a new commission, replaced him.
These commissions often included new guarantees of the colonists' English rights. People in Virginia-the first, largest, and most populous
colony-sanguinely enjoyed their ongoing status as Englishmen.

Guess what?

-40 The American
colonists fought to
rid themselves of
an intrusive
government they
couldn't control.
(Does that remind
you of nine
unelected oracles
in robes?)

-sW The Articles of
Confederation were
not designed to
create a new
nation, but to
protect the rights
of the states that
were joined as the
United States.

Well, not entirely as Englishmen: they had no representation in Parliament and after the middle of the seventeenth century could not export
goods from Virginia without transshipment through England. This regulation of commerce, as it was called in those days, seemed a small price
to pay for inclusion in the British Empire-which benefited colonists and
denizens of the home islands alike.

None of this is to suggest, however, that there was never conflict
between the colonies and England over events in the New World. There
certainly was. In the 1750s, Virginians bridled at the attempt of one of
their governors to charge them for land patents in the Pistole Fee Controversy. The elected House of Burgesses insisted to the royally appointed
governor that he had no authority to tax the colonists and that this new
fee amounted to a tax. In the end, the governor backed down.

The real theoretical difficulty arose in the 1760s when Britain won the
Seven Years' War (1756-1763), which in America was called the French
and Indian War (1754-1763). This first world war had begun with a skirmish started by a young Virginia militia major named George Washington. Victory in the war proved a mixed blessing for Great Britain.

On one hand, the British had seized much of France's colonial empire,
including Canada. On the other, they had done so chiefly through the
invention of modern deficit finance, which allowed them to buy the latest warships in numbers the French (who had far more men and natural
resources than Britain) could not match.

So, in the end, Britain had acquired a greater empire and a huge debt.
While people throughout the Empire (including in the thirteen American
colonies) celebrated their victory, the question arose: what was to be done
about the debt?

The period 1763-1775 was marked by repeated British efforts to get
some money, any money, out of the colonists to help service the new
imperial debt. While the colonists had willingly provided men and
money, along with various supplies, to the war effort, they proved unwilling to be taxed directly. As the New York Assembly put it in a 1764 petition to the British House of Commons, New Yorkers had been willing to
provide money when asked to do so, and even to provide more than had
been requested, but they would not accept being taxed by a legislaturethe British Parliament-in which they were not represented.