Today is Constitution Day, the anniversary of the day in 1787 when delegates to the constitutional convention in Philadelphia signed the draft charter so it could be considered for ratification by the states. The Constitution is one of the four organic laws of the United States and declares itself to be the supreme law of the land. Federal and state officials in all three branches of government must swear to preserve, protect, defend, or otherwise support the Constitution.
These days, some treat the Constitution as if it were something like the J. Crew catalog, reflecting only the shifting and morphing tastes and fads of the moment. If that is all the Constitution is, then our liberty is no more secure than the Supreme Court’s latest mood swing.
Understanding the true relevance of the Constitution comes only after understanding the true nature of the Constitution. And that can come only by, as Madison said, recurring to principles. The Declaration of Independence lays the foundation of these principles, or what it calls self-evident truths. These include that government derives its powers from the consent of the governed, that government exists to secure unalienable rights, and that the people have the power to alter or to abolish government.
Madison defined a republic as a system in which government derives all its powers, directly or indirectly, from the people. James Wilson served in Congress, signed both the Declaration of Independence and the Constitution, and was one of President George Washington’s original appointees to the newly created Supreme Court. In his famous lectures on law, Wilson described our system of government by saying that “here, the people are masters of the government.”
President Washington expressed this sovereignty of the people more specifically in his farewell address, which was published on September 19, 1796, in a Philadelphia newspaper, the Daily American Advertiser. He said this: “The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, until changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”
Therefore, in this republic, government derives its powers from the people who have the right to establish and change both their government and the Constitution. What, then, is the Constitution? It is the primary mechanism by which the people continue to be masters of the government and, therefore, to remain free.
Neither the basis of our political system nor the principles of free government have changed. Therefore, liberty itself depends upon the people remaining the masters of government and the people retaining authority to control the Constitution.
Chief Justice John Marshall wrote in Marbury v. Madison that the Constitution is intended to govern judges as much as legislators. Alexander Hamilton described the judiciary as the weakest and least dangerous branch of government. The limited role for federal judges no doubt made more acceptable the fact that they have unlimited terms of office. In fact, their tenure is probably the closest thing to eternal life that exists on this planet.
The conflict over judicial appointments is really a conflict over two fundamentally different models of judicial power. In one model, which is often called judicial restraint, judges submit to the Constitution. Restrained judges read the words of the Constitution and look to the same authority that provided them, namely, to the people for the meaning of those words. In the other model, which is often called judicial activism, judges control the Constitution. Activist judges read the words of the Constitution but look wherever they wish for the meaning they want to give those words.
The debate is not about what the meaning of the Constitution is, or what we might want that meaning to be. The debate is about whose meaning counts. The power to alter the Constitution, which Washington said is the very basis of our political system, is not limited to choosing the Constitution’s words. The real essence of the Constitution, after all, is not the mere form of its words, but the substance of their meaning. Whoever controls the meaning of the Constitution controls the Constitution. If the people are to remain masters of the government, then the people and not government must control the meaning of the Constitution.
Activist judges change the meaning of the words that are actually in the Constitution, and they invent provisions that the people never put there at all. One of my predecessors as Senator from Utah, George Sutherland, served on the Supreme Court for 16 years. He called judicial activism “amendment in the guise of interpretation.” Justice Hugo Black criticized what he called the Supreme Court’s “day-to-day constitutional convention.” And Justice Antonin Scalia, whose nomination the Senate confirmed 24 years ago today, called it simply power-judging.
If the Constitution cannot mean whatever judges want it to mean, it cannot mean whatever legislators want it to mean. Utah and 19 other states, as well as the National Federation of Independent Business, have sued the federal government over the constitutionality of the new health-care law. We are challenging both the mandate that individuals buy health insurance and the mandates on states and on businesses. Just three days ago, U.S. District Judge Roger Vinson in Pensacola, Florida, heard arguments about the government’s motion to dismiss the case. I am encouraged by reports from those who attended that the judge appears to recognize the substance of the issues and seems inclined to at least hear the arguments on the merits. He noted during the argument that the federal government has never before required individuals to purchase a particular good or service.
Just as in the debate over judicial philosophy, this lawsuit is about whether the people or the government control the Constitution. The Constitution, for example, gives Congress the power to regulate commerce among the several states. Commerce is activity in which individuals choose to engage. Even when the Supreme Court expanded the commerce clause in the 1930s, it still said that Congress may regulate activities that substantially affect commerce. The mandate that individuals use their own money to purchase government-approved health insurance is another thing altogether. Congress is now in the business of regulating not activities, but decisions. To paraphrase the opening of the old Star Trek episodes, this would boldly go where government has never gone before.
In one of its earliest decisions in 1795, the Supreme Court asked: what is the Constitution? The Court’s answer was this: “It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental law are established. The Constitution is fixed and certain; it contains the permanent will of the people, and is the supreme law of the land…and can be revoked or altered only by the authority that made it.”
America’s founders believed that liberty requires limits on government and that those limits come from a Constitution that the people established and the people alone may control. It comes from a Constitution with words and with meaning that do not change unless the people change them. Only then can the Constitution be, in Thomas Jefferson’s words, a peculiar security for liberty.