Our country’s founders created and ratified a Constitution to limit the powers of the new central government, institute structural defenses to individual liberty and solidify the popular sovereignty of the people. Because their experiment in representative government was new, they were rightfully concerned that, without proper protections in place, the new republic might be hijacked by a despotic force. But dictatorial despotism was not their only concern. They recognized that the republic could slip into a form of majoritarianism in the event the Constitution didn’t provide express and structural defenses of individual liberty. As James Madison stated in Federalist No. 51, “It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.” John Adams was more direct, “…despotism, or unlimited sovereignty, or absolute power is the same in a majority of a popular assembly, an aristocratical counsel, an oligarchical junto and a single emperor. Equally arbitrary cruel bloody and in every respect diabolical.”
For the first 150 years of our country’s existence, Americans generally honored and respected the Constitution, maintaining every expectation that it would perform its primary function of limiting the Federal government’s powers and guarding against tyranny from any source. In the 1930’s, progressive politicians decided that additional, extra-constitutional powers were “necessary”, and they argued for a broader interpretation of the Constitution under the theory of the Constitution as a “living” document which must be “interpreted” to change with the needs of society. Of course, what was “needed” was more power for the Federal government, less power for the states and less liberty for the people.
These progressive politicians disregarded the two legal methods of changing the Constitution provided in Article V because those methods were too “difficult” and time consuming. Instrumental to those methods is the popular sovereignty of the American people; not so with the “living” constitution. Unfortunately, The Great Depression rendered much of the public open to the idea of a Federal government with expanded powers. This openness ultimately resulted in a misperceived “mandate” in FDR and the progressive Congressmen who supported him. Ultimately, the Supreme Court capitulated and adopted an interpretive as opposed to literal reading of the Constitution in order to enable the expanded authority the progressive politicians and the public seemed to demand. Thus, the “living” constitution was born.
Likely lost upon the American people who then leant their political support to such a scheme were the long term ramifications of this “living” constitution. Where the “real” Constitution’s literal meaning instituted liberty and expressly limited government authority, the “living” constitution, by design, weakened those edifices. The very purpose of the “living” constitution was to eliminate the real Constitution’s barriers to government power. It is doubtful that they understood the implications of their desire for a more powerful government without employing Article V to specify and limit those additional powers. Those who supported the scheme were in effect saying, “Supreme Court, we want you to read the Constitution so as to give our elected representatives more power over us. We’re willing to trade the Constitution’s iron clad protections of our sovereignty and our liberty for the perceived security of knowing that our elected representatives can do more to solve our problems. We trust them and need them to have the authority to act and we trust you to figure out how to reinterpret the Constitution to achieve these additional powers. There’s no need for a formal amendment specifying what these new powers are to be.” This interpretive approach to determining constitutional issues contemplated by the “living” constitution opened the door to representative majoritarianism in America.
Though the people have maintained the ultimate control over the government by virtue of elections, the government’s powers would now be determined by perceived social need or necessity. The Court would turn rhetorical summersaults and stand logic on its head in order to justify new “interpretations” which would empower the government. Those powers are limited now only by the Court’s imagination and the Justice’s perceptions of “necessity” and “justice”. What distinguishes representative or republican majoritarianism from a constitutional republic is the constitutional restraints on what the majority is able to do. As the restraints weaken and fall, representative majoritarianism is slowly institutionalized and the concern of a tyranny of the majority over the minority becomes very real.
An additional result of the Court’s metamorphosis in the 1930’s was the marginalization of the popular sovereignty of the American people. Where it had once been primary, it would from then on be secondary, subject to the Supreme Court’s interpretive divergences from the Constitution, and exercisable only through Article 5. From that time on, the will of the people expressed in the original, real Constitution could be discarded whenever the Supreme Court became convinced the new “living” constitution called for additional governmental power or new individual rights with which the states could not interfere. The people thereby lost the primary control over effectively amending the supreme law in defining the power of government, the Constitution.
The new “interpretations” which resulted from the Court’s capitulation in the 1930’s have expanded Federal power consistently. In more recent years, an accommodative attitude with respect to social matters and individual rights has resulted in the recognition of such rights as “constitutional” and not subject to state interference. For several decades, we’ve now lived with the ramifications – an ever widening chasm between the “living” constitution, enabling the growing power of the Federal government; and the real Constitution, which limited its powers, honored the authority of the states, and held as its ultimate object, the sovereignty of the American people.
The Supreme Court’s recent rulings are cause for renewed attention. In a two part effort to save the Affordable Care Act, the Court first ruled in National Federation of Independent Business v. Sebelius that the fee which will be imposed on those who fail or refuse to comply with the individual mandate to purchase health insurance is a tax and not a penalty. This, despite the fact that Congress and the President both repeatedly assured the sovereign American people that the fee is a penalty and not a tax.
In part two, the Court ruled in King v. Burwell that, despite the express language of the statute authorizing federal tax credit subsidies only for health insurance which is purchased through an “exchange established by the State”, the subsidies are ok for health insurance purchased through an exchange created by the Federal government as well. Again, we know that Congress intended to leave the Federal government out of the business of creating such exchanges because ACA “architect” Jonathan Gruber told us so. “If you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits. … I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges, and that they’ll do it.”
In these rulings, the Court did more than expand governmental power pursuant to an “interpretive” reading of the so called “living” constitution. It breached the rule of law by discarding the express language of the statute in favor of an “interpretation” which would permit the statute to survive. The ACA could not have survived without congressional intervention if the mandate fee had been deemed not to be a tax or if the subsidies were restricted to insurance purchased through a state exchange. In order to save Congress from itself, the Court took on a legislative role in violation of the separation of powers enshrined in the Constitution, and rewrote the statute twice by false “interpretation”, thereby making it operational where it otherwise was not.
Finally, in Obergefell v. Hodges, the Court imposed upon the states the legal recognition of same sex marriage through a new “interpretation” of the 14th Amendment. The 14th Amendment’s “equal protection” and “due process” clauses do not restrict the states from excluding same sex marriage. We know this because it is beyond argument that the 14th Amendment would not have been ratified if the people understood at the time that it would be interpreted to create a right to same sex marriage. Indeed, it is beyond serious question that at no time since the original ratification of the Constitution in 1788 up to this very day would a proposed amendment establishing a right to same sex marriage have been ratified by the sovereign people of the United States by the three-fourths supermajority required by Article 5.
The 14th Amendment was ratified in 1868. Unquestionably, the Supreme Court of 1870 would not have ruled that states are constitutionally bound by the 14th Amendment to legally recognize same sex marriage. Nor would the Supreme Courts of 1900, 1940, 1970 or 1995. But at some point, the 14th Amendment magically began to require that states legally recognize same sex marriage. Only the Supreme Court can tell us when. Like a mythical oracle, only the Supreme Court can recognize the change in meaning. Only the Supreme Court can know when and why a reinterpretation of the Constitution is warranted to give a different meaning than it has ever had in the past. This is how a “living” constitution works. What was once a document establishing the limits of the Federal government as imposed by a sovereign people, now enables the Federal government to determine the scope of its powers and the limits of our individual liberty by virtue of the Supreme Court’s interpretations.
What has for years been obvious to some is now becoming obvious to all; the original Constitution – the one which limits governmental powers, establishes the three separate branches of government, institutionalizes federalism and preserves all non-enumerated powers to the states or to the people – is being diminished. The original Constitution—the special one, the one that made America unique, the one that birthed American exceptionalism – is becoming a hollow shell. The original Constitution is “dying”, supplanted by the “living” constitution – the one that says whatever at least five members of the Supreme Court says it says.
As a result, the public at large has become more accustomed to living within the paradigm of the “living” constitution. By and large, people are happy when the Supreme Court renders a decision with which they agree. They are angry when a decision goes against their interests. As the Supreme Court becomes more disassociated from the real Constitution and more motivated by their own political sensibilities in rendering decisions under the “living” constitutional paradigm, it is understandable that the public should see it for what it has become, a non-elected, super-legislature with life tenure and no remaining serious constitutional limitations on its power. As the Supreme Court’s use of judicial review becomes more recognized as a tool for placing a phony veil of constitutional legitimacy on the expansion of Federal power over the people and the states, the public may understandably come to the conclusion that judicial review no longer serves any purpose, legitimate or artificial, and may demand that we do away with judicial review altogether. Why should we permit an unelected super legislature of nine appointed lawyers to have the last word over our governance once it is fully understood that they aren’t bound by any real abidance to the Constitution? As Justice Scalia observed in his dissenting opinion in Obergefell, “(w)ith each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
When organizations and individuals express happiness or satisfaction over the results of Supreme Court cases such as the ACA cases and the same sex marriage case, they tacitly ratify the loss of popular sovereignty and acknowledge their willingness to be governed subject to the new paradigm. They fail to recognize that the end result will be the loss of our Constitutionally protected liberty. Those who celebrate a Supreme Court decision founded on the fraudulent notion of the “living” constitution should rethink the proposition they are embracing. The “living” constitution is not a constitution at all, but rather, a license enabling the nine appointed justices to pass final judgement on public matters with no basis or support other than the temporary, tacit permission of the American people. If that permission is withdrawn what will remain will be a real Constitution of relatively little contemporary application or effect and a “living” constitution revealed to be the fraud it has always been. The only viable alternative may be the completion of our move toward representative majoratarianism begun when the “living” constitution became the standard of judicial review. If so, our popular sovereignty will exist not in the Constitution but in the will of the majority as it speaks and acts through its representatives. What were once unalienable rights, will become at best privileges and at worst, distant memories.