America ‘s Constitution – Betrayed by the Bench
A number of years ago during a Constitutional seminar in a city in east Texas, a man came up to me at the break and introduced himself. He said he was a practicing attorney in the city and since graduating from law school many years before had never thought it necessary to attend a “Constitutional Seminar.” He said he thought he knew all he needed to know about the document because he had taken the required courses of Constitutional Law in law school. But, said he, I have learned more about the Constitution this morning than I have ever known before. Over the years, he had finally come to the realization that what he had been taught in law school was not the Constitution. He expressed gratitude that someone was out there trying to bring the Founder’s Constitution back again. I later learned that this man was a most prominent, respected attorney in this city and that our host had persuaded him to attend our seminar.
Since this experience, we have met many lawyers who have who have expressed the same disappointment in their law school experience when it comes to the Constitution of the United States. It has reinforced in my mind over the years that knowledge of the Constitution in the tradition of the Founding Fathers is a great void and vacuum in our legal culture today.
Anti-Constitutionalists rule our judicial system today
Perhaps one of the best-qualified persons to ever describe this condition in our legal system today was Judge Robert H. Bork, who was nominated to become a Supreme Court Justice by President Ronald Reagan in 1987. For several years Judge Bork was a distinguished professor at the Yale Law School , then Solicitor General of the United States . He served as acting U.S. Attorney General and was then appointed as circuit judge of the U.S. Court of Appeals for the District of Columbia in 1982.
Judge Bork was outraged by the law schools of today and their obvious disdain for the Constitution. He said:
“Few professors spend even a week on Story [former Chief Justice Joseph Story’s commentaries on the Constitution], or The Federalist Papers [the Founders’ commentaries on the Constitution], or the original Constitution. I know I didn’t [at the University of Chicago Law School]…. Nobody in law schools is teaching the Constitution. They are teaching Supreme Court opinions.”
Judge Bork also criticized the law-school textbook:
“Most law students today read primarily cases of the last twenty years or so because the older cases get weeded out of the case book. They have no idea that some constitutional subjects have undergone a revolution, because they don’t know any prior history. They sometimes think that some decision is really essential to our freedom, and if it were overruled, all kinds of terrible things would happen, without realizing that this country went on for a century and three quarters without that decision. Maybe it’s a good decision or a bad decision — but it is not, as students tend to suppose, an inevitable decision.”
Of course, the tragedy of this educational anemia is the fact that the courts have made their decisions the supreme law of the land. If that is all the student learns, he or she will never know the principles of constitutional law in the tradition of the Founding Fathers. Judge Bork commented on this, saying:
“There has recently grown up, in the law schools in particular, a school of constitutional philosophy which holds that judges are not properly bound by the intent of the framers of the Constitution, but may, indeed should, make new constitutional law, create new rights. And it is suggested that they may do so either because moral philosophy suggests inhibitions on legislative powers not found in the Constitution, or because judges think the legislative process is malfunctioning in some way that they themselves define.”
When Judge Bork was asked why he felt this trend among both lawyers and judges was extremely dangerous to the future of America, he replied:
“Because you would have a small group of unelected, unrepresentative judges making the basic law of the nation, quite irrespective of the desires of the electorate, and quite irrespective of the meaning of the Constitution. That would bring minority tyranny in spades.” (Quoted from The Constitution magazine, August 1987 by W. Cleon Skousen)
The Founders leave us the key to understanding the Constitution
Of course, this could have been prevented if the courts had stayed with the doctrine of “constitutional supremacy” and interpreted the Constitution according to the original intent of the Founders. The Founders left no doubt as to how this document should be read. When Jefferson became President he said:
“The Constitution on which our Union rests shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption — a meaning to be found in the explanations of those who advocated, not those who opposed it…. These explanations are preserved in the publications of the time.”
Later, he emphasized the same views:
“On every question of construction, [let us] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
These comments are similar to those expressed by the other leaders in the early chapters of the country’s history. Chief Justice Taney expressed the traditional view of the Founders when he wrote:
“It [the Constitution] speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States . Any other rule of construction would abrogate the judicial character of the Court and make it the mere reflect of the popular opinion or passion of the day.”
In a textbook, he wrote:
“The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intentions of the parties.”
The Danger Signals Appeared Early
In spite of the severe restrictions which were placed on the Supreme Court in its interpretation of the Constitution, it soon became apparent to Thomas Jefferson that this judicial body had the potential power of using judicial review to seriously distort the original intent of the Founders by twisting the meaning of the Constitution. Through clever “interpretations,” Jefferson saw the possibility of the Supreme Court creating new laws and even using its opinions to unlawfully amend the Constitution. In 1821, he wrote:
“It has long, however, been my opinion, and I have never shrunk from its expression … that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body, (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”
In many respects the justices of the Supreme Court restrained themselves for several generations, but eventually the temptation to substitute their own wisdom for that of the Founders began to manifest itself with increasing frequency. Just as Jefferson had predicted, the court’s decisions began to transfer both political and economic power to Washington . The Supreme Court became so involved in using judicial review, with non-constitutional interpretations, that the Founders would have undoubtedly accused the court of “legislating” in some cases and “amending” the Constitution in others. In both situations the court was acting without authority, and there should have been some constitutional procedure to nullify their decisions.
To appreciate how far we have strayed, let us examine the words of a notable constitutional authority, Edwin S. Corwin, who wrote The Constitution of the United States, Annotated, an official government publication. He points out that the Supreme Court has passed through four identifiable stages of development, which may be summarized as follows:
- There was the John Marshall period when the Constitution was used to establish “national supremacy.” The Federalist Papers and the words of the Founders were almost the exclusive guide to constitutional interpretations during this first period.
- The second period began with the appointment of Chief Justice Taney in 1835 and extended to approximately 1895. During this period the Supreme Court leaned heavily on various doctrines of constitutional theory and seldom quoted the Founders or the Federalist Papers. Nevertheless, the Court adhered rather strictly to the philosophy of the Founders, even though they seldom quoted them.
- Beginning around 1895, the Supreme Court moved into a third phase by gradually replacing constitutional supremacy with judicial supremacy. The Constitution was no longer what the Founders said it was, but rather what the Supreme Court said it was. To quote Dr. Corwin:”It was early in this period that Governor [Charles Evans] Hughes, soon to ascend the Bench [and later serve as Chief Justice from 1930 to 1941] said, without perhaps intending all that his words literally conveyed, ‘We are under a Constitution, but the Constitution is what the judges say it is.’ … Senator Borah, in the Senate debate on Mr. Hughes’ nomination for Chief Justice, in 1930, declared that the Supreme Court had become ‘economic dictator in the United States .’ Some of the Justices concurred in these observations, especially Justices Holmes and Brandeis. Asserted the latter, the Court had made itself ‘a super-legislature’ and Justice Holmes could discover ‘hardly any limit but the sky to the power claimed by the Court to disallow State acts’ which may happen to strike a majority [of its members] as for any reason undesirable.”
- The final period is one which is continuing today. It is the spectacle of a judiciary virtually out of control and seriously in need of repair by a constitutional amendment.
Betrayed by the Bench – How judge-made Law Has Transformed America ‘s Constitution, Courts and Culture
In the 1960s, John Stormer published a book entitled None Dare Call It Treason. This book ignited the conservative movement of the 60s and was distributed by the hundreds of thousands by those supporting the presidential campaign of Senator Barry Goldwater. It became a runaway best-seller and, together with his other four books, has sold over eleven million copies. His latest book Betrayed by the Bench describes in very understandable terms what judges in our land have done to our Constitution. It is a short, easy-to-read book that can, once again, be an item to distribute to those who are concerned about America. Its chapters include:
What Happens When Judges Violate Their Oath of Office?
School Have Eroded Constitutional Awareness and Respect
To Interpret the Constitution, Start with the Declaration
Biblical Support for the Declaration, and the Constitution
A Nation Under God – What Does History Say?
America Changed by Two 19 th Century Academic Theories
Roscoe Pound, Sociological Jurisprudence and Judge-Made Law
Common Law or Code Law? What’s the Difference?
Using the 14th Amendment to Negate the 9th and 10th Amendments
Is it Unconstitutional for the State to Acknowledge God?
Will Men Again Pledge Their Lives, Fortunes, and Sacred Honor?
The ACLU-Its History, Its Goals and Its Financing
Should the Supreme Court Use International Precedents?
Restoring Godly Constitutional Justice and Culture
Change the Debate to Reclaim the Cultural Initiative
At the request of NCCS the author is reprinting his book in paperback so it can be distributed en mass. Every citizen, every attorney, every educator, every parent, should read this book.
Click here to order your copy of this book for only $14.95.