Reviving the Constitution in the 2012 Elections
An "uncommon view" of the U.S. Supreme Court was penned by Cornell Law Dean William Forrester in an article published in the American Bar Association Journal:
[The U.S. Supreme Court as an institution] is even more unique
and unprecedented than commonly supposed. Indeed, the
institution can no longer be described with any accuracy as
a court, in the customary sense. Unlike a court, its primary
function is not judicial but legislative. It is a governing body
in the sense that it makes the basic policy decisions of the
nation, selects among the competing values of our society, and
administers and executes the directions it chooses in political,
social and ethical matters. It has become the major societal agency
If anything would seem more startling to most of us than the content of Dean Forrester's observation, it might be the date — 1977. More than thirty years ago, before the Court had rendered the body of decisions that most of us Court observers consider the most egregious rulings, Dean Forrester was describing the Court as it is today — only the Court is more radically altered today, if possible. Indeed, shortly after the publication of Forrester's article, U.S. Senator Sam Ervin lamented that "the Constitution is dead, and . . . the people are being ruled by the transitory personal notions of Justices who occupy for a fleeting moment of history seats on the Supreme Court bench . . . ."
The "death of the Constitution" — the disastrous results of this radical metamorphosis of the federal judiciary — demands that we Americans curb the courts, and the elections of 2012 offer an unprecedented opportunity for us to do just that. The most educated and energetic action is required of us, the people; and becoming educated NOW is essential. We must remember the call to action issued by the Father of the Constitution, James Madison. In 1822, Madison, declared that "[k]nowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
Accordingly, in this Court Watch Briefing, as well as subsequent issues, we shall empower ourselves with the knowledge necessary to revive our dying Constitution. In this issue, we shall examine some of fundamental principles of the Constitution which give us not just the option, but impose on us the obligation, to revive the Constitution. And we shall draw from Dean Forrester's description of the Court phrases that demonstrate the attack on these principles.
- Principle #1: Constitutional Supremacy: The Constitution is intended to be the "Supreme Law of the Land" (Article VI). But as Forrester correctly observes, "[the Court today] is a governing body . . . of the nation . . . and of our society . . . ." The Constitution is beneath the Court, and judicial supremacy has replaced Constitutional supremacy.
- Principle #2: Separation of Powers: The Framers intended that the three primary functions of government be execised by three different branches of government. But of the current Court, Forrester declares, "its primary function is not judicial but legislative." Furthermore, the Court "administers and executes the directions it chooses." Thus, the Court engages in all three government functions — legislative, executive, and judicial. Separation of powers has been replaced by fusion of powers.
- Principle #3: Checks and balances: Although separate, the three branches of government were intended to relate to one another in appropriate ways, including "checks and balances." Each branch is given certain powers vis-à-vis the other two branches. Thus, the government can move in a single direction (the three branches not veering off in their own directions - too often, anyway), no one branch can exceed its authority and capability, and each branch has mechanisms to protect itself from the other two branches. Today, however, as Forrester states, ". . . the institution [i.e., the Court] can no longer be described with any accuracy as a court, in the customary sense." Indeed, one wonders whether the judicial function "in the customary sense" is even being performed anywhere in the national government today. These facts, plus others already discussed picture a moribund, if not dead, system of checks and balances.
- Principle #4: Federalism: The Framers established a political system with a "division" of powers — a vertical allocation of governmental powers between national and state governments. Limited government was again the purpose. But as Forrester points out, "[the Court] makes the basic policy decisions of the nation . . . ." This leaves the state governments with little or no effective power. A federal system of government is replaced with a unitary system (the form against which the colonists revolted in the American Revolution).
- Principle #5: Consent of the Governed: America's legal/political system was founded on the concept of "government of the people, by the people, and for the people." But Forrester's Court ". . . administers and executes the directions IT chooses," not the direction the people choose. Thus, the Court pictured by Forrester has morphed America into a government "of the courts, by the courts, and for the courts" — judicial supremacy, not constitutional supremacy; a "judiocracy."
- Principle #6: Institutional Pluralism: This phrase is rarely used, but it describes a concept which is fundamental to our Constitution and our culture. The phrase describes the society intended by the Framers — one in which there exists a pluralism (multiplicity) of societal institutions (e.g., family, church, and civil law/government) and a multiplicity of viable institutions within the political system (reflected in separation of powers and federalism). Obviously, the Court has virtually expunged from within the legal/political system the multiplicity of agencies necessary for our Constitution and culture to survive and thrive. Likewise, the Court has marginalized societal institutions such as the family and church. Forrester correctly depicts this tragedy in noting that "[the Court] selects among the competing values of our society, and administers and executes the directions it chooses in political, social and ethical matters. It has become the major societal agency for reform." BUT, the making of basic societal value choices, the selection of directions the culture must go in political, social and ethical matters, and the guiding impulse in societal reform SHOULD be institutions and forces outside of the political/legal system. The latter is simply to implement the former. To do otherwise is to endanger the Constitution and the culture. And such is the situation prevailing in America today.
To understand these truths and further empower ourselves with vital knowledge is essential if we are to revive the Constitution in the 2012 elections. We shall therefore pursue additional analysis of this critical subject in future Court Watch Briefings.
- Pursue your own individual study of the numerous Blackstone
materials available on this website
- Hold small group studies of the "Blackstone Blitz" series
- Advance your individual knowledge with Blackstone's "flagship study" — the multi-media online course, "Reviving the Constitution"
- Gain in-depth understanding from Blackstone's "Companion Curriculum"
- Experience a unique and exciting educational experience by sponsoring a "Blackstone Blitz Workshop" with Dr. Virginia Armstrong — in person, or via Skype internet conferencing