Jewish World Review March 30, 2005 /19 Adar II, 5765
The law or good ideas?
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
Your follow-up 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, finding 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 that
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
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