‘Wizards’
behind the curtain
How the American judiciary squandered its moral inheritance
By Steven
Miller
Randy E. Barnett
makes an excellent point.
The Austin B. Fletcher Professor at Boston University School
of Law has spotted an interesting paradox: While statist
judges and their academic enablers are, and have long been,
confident the U.S. Constitution is defective in important
ways, needing their “fixes,” they nevertheless always go to
great pains to hide behind the document and pretend they are
merely “interpreting” it.
“Since the adoption of the Constitution, courts have
eliminated clause after clause that interfered with the
exercise of government power,” notes Barnett. “This started
early with the Necessary and Proper Clause [that constrained
the power of Congress], continued through Reconstruction with
the destruction of the Privileges or Immunities Clause [that
required states to observe their own citizens’ full human
rights], and culminated in the post New Deal Court that gutted
the Commerce Clause [making it a near-unlimited grant of power
to Congress] and the scheme of enumerated powers affirmed in
the Tenth Amendment, while greatly expanding the unwritten
“police power” of the states.” At the same time, he points
out, “With sporadic exceptions, judges have ignored the Ninth
Amendment.”
“Without these missing clauses,” observes Barnett, “the
general scheme of the Constitution has been radically
altered.” While the framers’ Constitution had created “islands
of government powers in a sea of liberty,” the “judicially
redacted constitution” that has emerged from the hands of
officious jurists “creates islands of liberty rights in a sea
of governmental powers.” This, he notes, resembles not at all
the constitution “written on parchment
that resides under glass in Washington.”
As political warfare gears up in the nation’s capital over
pending U.S. Supreme Court nominations, Barnett’s learned and
competent scholarship reveals what the fight is really all
about. His most recent book, Restoring the Lost
Constitution (Princeton University Press, 2004), not only
exposes the major holes cut into the Constitution by courts
since the founding; it also shows that in each case the effect
has been to eliminate provisions protecting us—our liberties
and our rights—from government. Indeed, it is now clear that
James Madison’s famed definition of faction—“a number of
citizens … united and actuated by some common impulse of
passion, or of interests adverse to the rights of other
citizens”—has increasingly come to fit the judiciary itself,
with its now-institutionalized bias in behalf of ever-more
powerful government.
Barnett identifies an important paradox: On the one hand
“those who practice and advocate judicial amendment of the
Constitution” are sure that the design for limited government
set forth by the U.S. Constitution is defective and requires
nothing so much as their helpful reshaping.
Oddly enough, however, they never go public with this
disdainful point of view. Nor do they seek actual amendments
to the nation’s founding document in accord with the steps it
itself outlines.
This lack of candor, suggests Barnett, bespeaks a basically
cynical focus by these judges and legal theorists on their own
power and their own career prospects. For, should people
actually accept their dismissive view of the Framers’
Constitution, their own authority would most likely be
dismissed along with it.
“To openly challenge the legitimacy of the Constitution held
sacred and regarded as authoritative by so much of the
public,” Barnett points out, “would be to admit that there is
no ‘man behind the curtain.’” Candor, therefore, is judged a
non-starter.
“Instead, by subtly undercutting the legitimacy of the
Constitution while at the same time preserving its much
revered form,” writes Barnett, “a judge or even a clever
constitutional scholar can become the man behind the
curtain. Pay no attention to that figure in the black robe or
to that bookish professor; the great and powerful Constitution
has spoken!”
Ample scholarship demonstrates that this is a fraud upon the
public, one which has gone on for almost two centuries: “Imply
but do not say aloud that the Constitution is illegitimate so
we need not follow what it actually says. Remake it—or
‘interpret’ it—as one wills and then, because it is The
Constitution we are expounding, the loyal but
unsophisticated citizenry will follow.”
They would have, once upon a time. Today, it is far less
likely. Blatant black-robed attacks on liberty, private
property and the original Constitution have become far too
frequent. Those attacks have cost the American judiciary
virtually all of its moral authority.
Restoration of that authority will not happen without
restoration of the lost constitution. As new Supreme Court
nominations are being prepared, that is the real issue at
stake.
Steven Miller is policy director for the Nevada Policy
Research Institute (www.npri.org)
and editor of BusinessNevada (biz.npri.org).
