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Subverting the Constitution By: Henry Mark Holzer
FrontPageMagazine.com | Monday, November 14, 2005


The retirement of Supreme Court justice Sandra Day O’Connor (contingent upon her replacement being seated), and the ensuing nominations of John G. Roberts, Jr. and Samuel Alito, exposed once again the ongoing moral, political, and legal schism between liberals and conservatives over such hot-button constitutional law issues as abortion, affirmative action, prisoners’ rights, establishment of religion, and the power of Congress.

Liberals were desperate to extend, or at least retain, their hegemony on the Court.

Conservatives saw an opportunity for the President to return the Court to a proper constitutional balance, where respect for federalism, separation of powers, and judicial restraint was not the exception but the norm.

Judge, now Chief Justice, Roberts dazzled the Senate Judiciary Committee and was easily confirmed.

Judge Alito will similarly impress the Committee, albeit in a more understated manner, and he too will be confirmed.

Their addition to the Court now makes for a solid four-justice conservative bloc: Scalia, Thomas, Roberts, and Alito.

The solid liberal bloc consists of Justices Stevens, Souter, Ginsburg, and Breyer.

That leaves Justice Anthony Kennedy—sometimes a fellow traveler of the conservatives, and sometimes of the liberals—as the swing vote.      

This means that even with Roberts and Alito joining Scalia and Thomas, solidly conservative decisions are not guaranteed.  Nor are they assured for another reason, ironically one that’s rooted in conservative jurisprudence: the doctrine of stare decisis— sometimes referred to as “precedent.”  As a matter of judicial philosophy, conservatives believe that precedents should not easily be overruled.  Indeed, opinions of Justices Scalia and Thomas, for example, are replete with statements that, while they may disagree with a current decision, they are obliged to accede to it because of controlling precedents.

The problem for the Supreme Court’s new conservative bloc is that from at least the beginning of the New Deal in the 1930s, liberal justices in decision after decision—creating precedent after precedent—judicialized their personal policy preferences, ignoring the Founders’ intent and subverting the Constitution.

Primarily, there have been two vehicles that made the subversion possible: the Interstate Commerce Clause, found in the Constitution’s Article I, Section 8, and the Fourteenth Amendment’s “Incorporation Doctrine,” found nowhere in the Constitution.

The Commerce Clause cases shifted the center of political gravity from each of the states to the federal government—essentially to Congress and its bastard offspring, the administrative agencies—exalting federal power at the expense of the intended beneficiaries of the Tenth Amendment, the states and their citizens.  It also widened the chasm of accountability of government.  This was a betrayal of the federalism principle, which bespeaks of shared power between the federal government and the states and their citizens. 

The Incorporation Doctrine—making applicable to state action via the Due Process Clause of the Fourteenth Amendment virtually every provision of the federal Bill of Rights—shifted power from state legislatures to federal courts (especially to the Supreme Court of the United States).  For example, if the California legislature enacted a law censoring newspapers (a free press problem) and a federal court ruled the statute unconstitutional under the Due Process Clause of the Fourteenth Amendment, the federal power would be trumping the state power, and the judicial power would be trumping the legislative power.  The former infringes on federalism and the latter on separation of powers.  Yet that is exactly what the Incorporation Doctrine has done, holding hostage to the power of federal courts the actions of state and local legislatures with regard to virtually everything actually or arguably protected by the federal Bill of Rights.

The subversion of the Constitution by liberal judges for most of the past seventy-five years can best be understood against the background of our founding documents: the Declaration of Independence, the Articles of Confederation, the Constitution of the United States, and the Bill of Rights.

The Declaration of Independence was grounded in the Founders’ belief in natural rights.

The Articles of Confederation, whatever its merits in that revolutionary time, were of no use as a charter for a federal union.

The Constitution was intended to create that union, delegating to the federal government specific powers, with all other legitimate powers expressly reserved to the states and their citizens. The rights of individuals were not intended to be, nor were, surrendered by the Constitution to the federal government .

The Bill of Rights was promulgated to ensure that the creation of the new federal government did not deprive individuals of their rights.

 How, then, has the power of the federal government become so broad and so deep? How, for example, could the Supreme Court have just recently nullified California’s “medical marijuana” law, despite the Tenth Amendment?

 How could the Supreme Court have recently interpreted the Fifth Amendment’s “public use” requirement for an eminent domain “taking” to be satisfied by a mere “public purpose”?

Indeed, how could a federal government with only delegated limited powers, circumscribed by an explicit Bill of Rights, have become a force that dominates virtually every aspect of its citizens’ lives?

The answer is simple: because the Constitution in the hands of liberal justices has become, in Jefferson’s words, “a thing of clay.”

Relying on its power to regulate “interstate” “commerce,” the Supreme Court has upheld Congress when it controlled the price of wheat grown at home for personal consumption.  Similarly, the Court has upheld many other exercises of Congressional power when its statutes neither affected interstate activity nor in any way involved commerce.  In doing so, Supreme Court liberals “grew” the federal government, while simultaneously shrinking the role of the states, despite the clear dictate of the Tenth Amendment that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Fourteenth Amendment provides, in part, that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law . . . .“   In time, the Court defined “due process” to be synonymous with virtually every provision of the Bill of Rights.  In other words, just as “Congress shall make no law respecting an establishment of religion” because of the First Amendment, California, according to the Supreme Court, can make “no law respecting an establishment of religion” because of the Due Process Clause of the Fourteenth Amendment.

This “incorporation” of the Bill of Rights against the states via the Fourteenth Amendment’s Due Process (and Equal Protection) Clause is responsible for the creation of scores of ersatz “rights” and the subversion of the Constitution as originally conceived and written.

If the new Supreme Court’s near-conservative majority is to rescue the Constitution, they must begin with proper interpretations of the Commerce Clause and they must scale back the freewheeling Fourteenth Amendment decisions that have virtually rewritten our Fundamental Charter.

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Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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