Judges shouldn’t control Constitution

By Walter Williams

Here’s my question to you: Should we be governed by good ideas?

You say, “Williams, what do you mean?”

Here’s an example: I regularly bike for fun, cardiovascular fitness and, hopefully, for a longer, healthier life. In my opinion, that’s a good idea. That being the case, would you deem it proper for Congress to enact legislation requiring Americans to bike regularly or perform some other cardiovascular fitness exercise?

What if Congress didn’t act on this good idea? Would you deem it proper and acceptable if five out of nine U.S. Supreme Court justices, in the name of “evolving standards” and promoting the general welfare, decreed that we all participate in some fitness exercise?

Let’s look at it. It’s easy to dismiss my questions and example by saying they’re stupid and far-fetched. A more enlightened response would be to quote from Thomas Jefferson: “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” In other words, Congress holds only those powers delegated or enumerated in the Constitution.

Your followup response might be another Thomas Jefferson quotation: “(T)hat whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” That means if Congress or the courts were to mandate biking, we could ignore it.

Suppose biking advocates saw no hope in getting Congress to enact legislation mandating regular biking and saw the U.S. Supreme Court as a means to accomplish their ends. Tell me your preference. Would you prefer the justices to rule along the lines they did in the recent Roper v. Simmons case? In that case they found the execution of teenagers unconstitutional because, as Justice Anthony Kennedy speaking for the 5-4 majority said, “It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.”

Modified to fit my biking example, Justice Kennedy might say, “We acknowledge the overwhelming weight of international opinion that regular biking is a good idea.”

Or, would you prefer the justices to say, “We’re guided by the U.S. Constitution, and we find no constitutional authority to rule that Americans must regularly bike, despite your nonsense argument about the ‘promoting the general welfare’ clause; get out of our court?”

Whether “evolving standards,” the “weight of international opinion” and good ideas should determine court decisions underlies much of the ongoing conflict over President Bush’s federal court appointees. A federal court appointee who’d say his decisions are guided by the letter and spirit of our Constitution would be tagged by Democrat senators and a few Republican senators, such as Arlen Specter, as an extremist. They’d prefer justices who share former Chief Justice Charles E. Hughes’ vision that, “We live under a Constitution, but the Constitution is what the judges say it is.” Translated, that means we don’t live under the Constitution; we live under tyrannical judges.

Many law professors, and others who hold contempt for our Constitution, preach that the Constitution is a living document. Saying the Constitution is a living document is the same as saying we don’t have a Constitution. For rules to mean anything, they must be fixed. How many people would like to play me poker and have the rules be “living?” Depending on “evolving standards,” maybe my two pair could beat your flush.

The framers recognized there might come a time to amend the Constitution, and they gave us Article V as a means for doing so. Early in the last century, some Americans thought it was a good idea to ban the manufacture and sale of alcohol. They didn’t go to court asking the justices to twist the Constitution to accomplish their goal. They respected the Constitution and sought passage of the 18th Amendment.

The founders were right about a lot of things, but they were dead wrong when they bought into Alexander Hamilton’s Federalist Paper No. 78 prediction that the judiciary was the “least dangerous” branch of government.

Walter E. Williams is a professor of economics at George Mason University. He writes for Creators Syndicate and may be contacted at: wwilliam@gmu.edu