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Chapter 8
How Flexible is the Constitution?
Consideration of the Constitution as drafted and intended by the Framers raises the question of how the federal government was changed from the small, limited government established by the Framers to the gigantic government Americans are living under today, a government claimed by many to have unlimited power.
The False Doctrine of Flexibility of the Constitution
One of the principal devices used to accomplish this transformation is the widely taught doctrine of flexibility of the Constitution. This is the doctrine that the Framers of the Constitution foresaw that over the years the Constitution would have to be changed to keep up with changing times and differing economic circumstances, and that they wisely made provision for those changes by making the Constitution a flexible instrument that could be readily adapted to changing circumstances by interpretation.
As is typical of false doctrines, there is some truth in the doctrine of flexibility of the Constitution. The function of a constitution is to set up basic principles and limitations under which a government is to operate. Because of this function, there is inherent in constitutional government an element of flexibility as those basic principles and limitations are applied to changing circumstances.
But it should never be forgotten that the true area of flexibility is always within the principles and limitations provided in the Constitution.
On the other hand, under the false doctrine of flexibility of the Constitution the principles and limitations [p. 50] of the Constitution are themselves changed without any constitutional amendment. This is a very different thing from merely applying those principles and limitations to changing circumstances.
The underlying premise of the doctrine of flexibility of the Constitution is that the Constitution is based on particular times and economic circumstances.(1) This underlying premise is false. The Constitution is not based on particular times and economic circumstances, but on human nature.(2) Since human nature does not change, the claimed need for flexibility in basic principles and limitations to keep up with changing circumstances does not exist.
False Flexibility Doctrine Compared With Amendment Procedure
That the doctrine of flexibility actually is a false doctrine becomes clear by examination of the amendment procedure of the Constitution. What the people accepted when they ratified the Constitution was a small, limited federal government having only specific conferred powers. This clearly defined government they agreed to was not to be taken from them or from their descendants and another government substituted in its place even by agreement of an ordinary majority of the people. Under the amendment procedure built into the Constitution, amendments are not valid until ratified by three fourths of the states.(3)
This clear and specific amendment procedure is completely incompatible with the loose flexibility doctrine. Under the flexibility doctrine, the most far-reaching changes have been made—not by careful deliberation of the people and acceptance by three fourths of the states—but by a [p. 51] majority of five of nine judges who are not elected by the people and are not accountable to them.
There is another reason why the doctrine of flexibility of the Constitution is a false doctrine—the doctrine of flexibility itself destroys the Constitution. If the principles and limitations of the Constitution are themselves flexible and are only what the Supreme Court thinks they should be at any given time, then there are no fixed principles and limitations, and the federal government can do anything the Supreme Court is willing to permit. This is the basis of the oft repeated statement that the Constitution is only what the Supreme Court says it is(4) in spite of the known intent of the Framers, the understanding of the people when they accepted the Constitution, and the provisions of the Constitution itself.
In addition to being a false doctrine, the doctrine of flexibility is also a most inappropriate doctrine, because it violates the basic constitutional concept of separation of powers. Under the flexibility doctrine, the Supreme Court not only makes the changes, but then proceeds to sit as a court of last resort and pass judgment on the constitutionality of the very changes it has made.
False Flexibility Doctrine Violates Intent of Framers
The comments thus far made in this work concerning the impropriety of constitutional changes made by the Supreme Court are out of harmony with the currently popular and widely accepted point of view that the Constitution is flexible and may be changed by "interpretation" of the Supreme Court. However, it should also be clearly recognized that the currently popular point of view is out of harmony with the intent of the Framers, the provisions of the Constitution, and the understanding of the people who ratified the Constitution. For example, George Washington [p. 52] expressed the following warning against changes made other than by the regular amendment procedure.
If, in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. — But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.(5)
It is sometimes said that the changes made by interpretation are not real amendment-type changes, but only the application of basic constitutional principles to new facts and circumstances. The falsity of such a claim becomes apparent when one compares the small limited government established by the Framers with the large all but unlimited government into which it has been transformed.
False Flexibility Doctrine Is Perversion of Judicial Review
It is of interest that the false doctrine of flexibility is really a perversion or counterfeit of a true constitutional doctrine, that of judicial review. The doctrine of judicial review refers to the concept that the Supreme Court has the right and duty to interpret the Constitution and declare unconstitutional those laws or activities that are inconsistent with its provisions and principles.(6) The perversion or counterfeit occurs when the Supreme Court, instead of merely interpreting the Constitution, actually changes it under the guise of interpretation.
The landmark case of Marbury v. Madison, decided by the Supreme Court in 1803 clearly established the doctrine of judicial review. The counterfeit doctrine of flexibility so closely masquerades as a part of the doctrine of [p. 53] judicial review that the case of Marbury v. Madison is sometimes referred to as authority for the flexibility doctrine. Yet that case not only contains no discussion of the right of the Supreme Court to change the Constitution, but recognizes the absolute supremacy of written constitutions and the United States Constitution in particular. In fact, the court clearly recognized that its own authority was limited to the specific provisions of the Constitution. For example, the opinion, in that case, contains the following statement in the context of the Supreme Court's own authority.
Thus, the particular phraseology of the Constitution . . . confirms and strengthens the principle . . . that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument.(7)
A noted modern authority on constitutional law is Dr. Edward S. Corwin who headed a project initiated by Congress to prepare an annotated edition of the Constitution, including cases decided by the Supreme Court through June 30, 1952. Before referring to comments made by Dr. Corwin, it is appropriate to mention that he clearly subscribes to the currently popular and acceptable point of view that judicial review includes the doctrine of flexibility of the Constitution, and that the Supreme Court may properly change the Constitution by reinterpretation without going through the amending process set forth in the Constitution.(8) For example, Dr. Corwin expressed this point of view in the Editor's Foreword, in these words:
The Constitution has possessed capacity for growth in notable measure. . . . Nor has this capacity resided to any great extent [p. 54] in the provision which the Constitution makes for its own amendment. Far more it has resided in the power of judicial review exercised by the Supreme Court.(9)
Vast Extent of Constitutional Changes Made Under Flexibility Doctrine
Bearing in mind that Professor Corwin endorses the doctrine of flexibility, which this writer considers to be a false doctrine, it is instructive to quote from his Introduction to see more clearly the extent to which the Supreme Court has transformed the United States constitutional system.
Considered for the two fundamental subjects of the powers of government and the liberties of individuals, interpretation of the Constitution by the Supreme Court falls into four tolerably distinguishable periods. The first, which reaches to the death of Marshall,(10) is the period of dominance of the Constitutional Document. The tradition concerning the original establishment of the Constitution was still fresh, and in the person and office of the great Chief Justice the intentions of the framers enjoyed a renewed vitality. . . . the theories which Marshall urged in support of his preferences were, in fact, frequently verifiable as theories of the framers of the Constitution.
The second period is a lengthy one, stretching from the accession of Chief Justice Taney in 1835 to, say, 1895. . . . More and more the constitutional text fades into the background, and the testimony of the Federalist, Marshall's sole book of precedents, ceases to be cited . . . the theories which . . . received the Court's approval during this period . . . put the national law-making power into a strait-jacket so far as the regulation of business was concerned.
The third period was that of Judicial Review pure and simple. The Court, as heir to the accumulated doctrines of its predecessors, found itself . . . in possession of such a variety of instruments of constitutional exegesis that it was often able to achieve almost any result in the field of constitutional interpretation [p. 55] which it considered desirable, and that without flagrant departure from judicial good form. Indeed, it is altogether apparent that the Court was in actual possession and in active exercise of what Justice Holmes once termed "the sovereign prerogative of choice." It was early in this period that Governor Hughes, soon to ascend the Bench, 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." A decade later it was suggested by an eminent law teacher that attorneys arguing "due process cases" before the Court ought to address the Justices not as "Your Honors" but as "Your Lordships"; and 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 has 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 fourth period is still with us. It was ushered in by World War I, but its results were consolidated and extended during the 1930's, and have been subsequently still further enlarged and confirmed. . . . What they sum up to is this: that what was once vaunted as a Constitution of Rights, both State rights and private rights, has been replaced to a great extent by a Constitution of Powers. The Federal System has shifted base in the direction of a consolidated national power; within the National Government itself there has been an increased flow of power in the direction of the President.(11)
The above lengthy quotation lucidly indicates the vast changes made in the constitutional system by Supreme Court interpretation without complying with the amendment procedure specified in the Constitution.
An Unauthorized Change By the Supreme Court—The Reapportionment Cases
That changes made by the Supreme Court have actually been real amendment-type changes becomes even more [p. 56] apparent through examination of a specific example. A particularly clear example of a constitutional amendment made by the Supreme Court is in the reapportionment of state voting districts.
The Framers' Intent Concerning Federal Authority Over State Election Procedures
The Framers felt that the vital principles of separation of powers and checks and balances applied not only among the branches of the federal government, but also between the states and the people on the one hand and the federal government on the other.(12)
As a matter of fact, the independent sovereignty of the states was clearly recognized and confirmed in the Bill of Rights itself:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.(13)
One problem discussed by the Framers was the possibility of the states destroying the federal government by not making provision for election of federal officials.(14) In The Federalist this possibility was expressed in this way:
An exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it, by neglecting to provide for the choice of persons to administer its affairs.(15)
It was argued that such action by the states to destroy the federal government was so unlikely that it could be ignored. But the Framers felt that such a possibility should not be ignored, particularly since one of their principal [p. 57] objectives in drafting the Constitution was to protect against abuses of power by public officials. They felt that such abuses could come from state as well as federal officials.
If we are in a humor to presume abuses of power, it is fair to presume them on the part of the State governments as on the part of the general government.(16)
Constitutional Provision Concerning Federal Authority Over State Election Procedures
The Framers therefore inserted the following provision in the Constitution conferring upon Congress the power to make or alter the provisions made by the state legislatures with respect to elections of federal senators and representatives.
The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time by Law make or alter such Regulations.(17)
Several aspects of this provision made by the Framers should be noted particularly:
Authority Given Congress—Not Courts
1. This power was exercisable by "law" passed by Congress, a political body of elected representatives, not by decision of the Supreme Court, a judicial body not accountable to the people or the states.(18)
2. The purpose of the power was not to enable the federal government to exercise general supervision of state election procedures. Rather it was intended to protect the federal government from being damaged or destroyed by improper actions of state legislatures with respect to procedures for election of federal officials. [p. 58]
Authority Extends Only To Election of Federal Officials
3. In harmony with this intent, the power given extends only to election of federal senators and representatives, not to election of state officials.
Framers Intended Federal Authority To Be Limited
Not only is there no provision in the Constitution for federal supervision of voting procedures with respect to election of state officials, but it was clearly contemplated that there be no such power. Such a provision would have violated the principles of separation of powers and checks and balances by making the state governments subject to the control of the federal government. Negating any such intent is the following statement in The Federalist:
Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments?(19)
Until Recently the Supreme Court Has Followed Constitution on State Election Procedures
Until very recently the Supreme Court has consistently taken the following positions:
1. It has held that the federal government has no authority over elections of state officials.
2. It has recognized that federal authority over elections of federal senators and representatives was vested in Congress and not in the courts.
3. It has refused to become involved in questions of districting even for elections of federal senators and representatives. This was on the ground that apportionment problems were political questions to be worked out in the [p. 59] political arena by the people's elected representatives, and were not the type of disputes to be decided by the courts.(20)
Congress Has Acted Under Its Constitutional Authority
On the other hand Congress, recognizing its authority to regulate elections of federal senators and representatives, has enacted laws prescribing regulations of such federal elections beginning in 1842. These laws have varied from time to time. For many years prior to 1929 Congress required that federal election districts contain "as nearly as practicable an equal number of inhabitants," but this requirement was dropped in 1929.(21) From 1929 until the present there have been many attempts to have Congress reinstate the requirement that federal election districts be approximately equal in population, but such attempts have consistently failed.(22)
In summary then, it appears that since 1929 the repeatedly considered judgment of Congress has been not to require districting according to population even in federal elections over which it had jurisdiction.(23)
Suddenly Supreme Court Reverses Itself, Changes Constitution and Overrules Congress
Suddenly, between 1962 and 1964, with no constitutional amendment adopted in the manner specified in the Constitution, all this prior law was reversed by the Supreme Court which decreed that in spite of the intent of the Framers, in spite of the wording of the Constitution, in spite of its own prior decisions, and in spite of the considered [p. 60] judgment of Congress, the new constitutional law on the subject would be as follows:
1. Henceforth, the federal government would have authority not only over elections of federal senators and representatives, but also over elections of state officials. It is of interest that, as indicated above, such an authority claimed by the federal government was referred to in The Federalist as not only improper but as "a premeditated engine for the destruction of the State governments."(24)
2. Henceforth, federal authority over apportionment would be vested not only in Congress, but in the federal courts as well. By this requirement, the Supreme Court with no constitutional authority simply assumed a power given to Congress in the Constitution.
It should be noted that, by the above two court-made changes in constitutional law, the Supreme Court not only assumed a power given by the Constitution to Congress, but actually took upon itself a greater power than that given to Congress because the power of Congress was limited to federal elections whereas the power assumed by the Supreme Court extended to both state and federal elections.
3. Henceforth, all apportionment must be based on population. This new constitutional requirement imposed by the Supreme Court raises serious questions as to the constitutional relationship between the Supreme Court and Congress as independent co-equal branches of the federal government. Under the Constitution, Congress was given the power to regulate election procedures for elections of federal senators and representatives. Pursuant to that power Congress validly enacted various requirements from time to time. At the time these cases were decided Congress, after repeatedly considering the matter, had decided that apportionment according to population should not be required. However, in these cases the Supreme Court, not [p. 61] being authorized in the Constitution, overruled a decision of Congress acting entirely within its constitutional authority.
In Judge Harlan's dissenting opinion in Wesberry v. Sanders, this action of the Supreme Court in overruling the considered decision of Congress is clearly set forth. Referring to the history of congressional enactments under the authority granted to Congress over state apportionment for elections of federal senators and representatives, Judge Harlan stated:
This history reveals that the Court is not simply undertaking to exercise a power which the Constitution reserves to the Congress; it is also overruling congressional judgment.(25)
New Supreme Court Theory Inconsistent With Constitutional History
In his dissenting opinion in Baker v. Carr, Justice Felix Frankfurter presented the following historical summary indicating how out of harmony with constitutional history is this new requirement of representation apportioned according to population.
The notion that representation proportioned to . . . population is so universally accepted as a necessary element of equality between man and man . . . that it is, in appellants' words "the basic principle of representative government"—is, to put it bluntly, not true . . . it has never been generally practiced, today or in the past. It was not the English system, it was not the colonial system, it was not the system chosen for the national government by the Constitution, it was not the system exclusively or even predominantly practiced by the States at the time of the adoption of the Fourteenth Amendment, it is not predominantly practiced by the States today.(26) [p. 62]
Supreme Court Relies on Fourteenth Amendment
In arriving at these changes the Supreme Court relied heavily on the equal protection clause found in the second sentence of Section 1 of the 14th Amendment. The applicable part of that sentence reads as follows:
No state shall make or enforce any law which shall . . . deny to any person . . . the equal protection of the laws.
The Supreme Court interpreted the equal protection clause not just to prohibit discrimination by government agencies because of race, but also to require legislative apportionment according to population so that every person's vote would have the same weight. The majority opinion in Reynolds v. Sims expressed this new requirement in this way:
We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats of both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.(27)
Fourteenth Amendment Not Applicable
Judge Harlan, in his dissenting opinion in Reynolds v. Sims, made the following comment concerning the majority's interpretation that legislative apportionments are within the purview of the equal protection clause of the 14th Amendment:
The Court's action now bringing them within the purview of the Fourteenth Amendment amounts to nothing less than an exercise of the amending power by this Court.(28) [p. 63]
The majority position was that while their new interpretation of the 14th Amendment in this series of cases did represent a major change of prior law, still it was a proper exercise of the Supreme Court's power of judicial review by which it interpreted the Constitution in applying it to changing times. To this majority contention, Judge Harlan replied:
It is meaningless to speak of constitutional "development" when both the language and history of the controlling provisions of the Constitution are wholly ignored.(29)
Supreme Court Ignores Fourteenth Amendment Context
This new majority interpretation furnishes an instructive illustration of the willingness of Supreme Court judges to change constitutional provisions to suit their ideas of what such provisions should be, even to the extent of taking a few words out of context and giving them a meaning both their context and the surrounding circumstances indicate was not the intended meaning.
In his dissenting opinion, Judge Harlan pointed out that the entire 14th Amendment is a single text, and must be read as a whole. He then made the following comment on the majority's willingness to interpret the first section in a manner inconsistent with the context that follows it:
Whatever one might take to be the application to these cases of the Equal Protection Clause if it stood alone, I am unable to understand the Court's utter disregard of the second section which expressly recognizes the States' power to deny "or in any way" abridge the right of their inhabitants to vote for "the members of the [State] Legislature," and its express provision of a remedy for such denial or abridgment. The comprehensive scope of the second section and its particular reference to the state legislatures precluded the suggestion that the first section was intended to have the result reached by the Court today. If indeed the words of the Fourteenth Amendment speak for themselves, as the majority's disregard [p. 64] of history seems to imply, they speak as clearly as may be against the construction which the majority puts on them.(30)
Supreme Court Ignores Fourteenth Amendment Legislative History
Judge Harlan then explained that not only does the language of the 14th Amendment preclude the majority's interpretation, but also that the history of its adoption clearly shows the majority interpretation to be inconsistent with the intended meaning of the 14th Amendment. He declared:
The history of the adoption of the Fourteenth Amendment provides conclusive evidence that neither those who proposed nor those who ratified the Amendment believed that the Equal Protection Clause limited the power of the States to apportion their legislatures as they saw fit.(31)
In the debates concerning the 14th Amendment it seems to have been recognized unmistakenly that a state had the power not only to apportion as it pleased, but even to deprive some of its citizens of the right to vote. Hence the second section of the 14th Amendment provided that if it did exercise that power and did deprive some of its citizens of the right to vote, Congress could impose a penalty of decreasing that state's representation in Congress in proportion to the number of otherwise qualified citizens the state deprived of the right to vote.
This clear understanding in the debates is evidenced, for example, by the following comments made by Mr. Bingham, the author of the first section of the 14th Amendment in the Reconstruction Committee:
The amendment does not give, as the second section shows, the power to Congress of regulating suffrage in the several States. The second section excludes the conclusion that by the first section suffrage is subjected to congressional law.(32) [p. 65]
In the interest of brevity, it seems inappropriate to present extensive material on the intent of the 14th Amendment in connection with federal control over reapportionment, or the understanding of those who debated the proposed amendment or the states that adopted it. As Judge Harlan points out in his dissenting opinion, including two appendices of additional contemporary quotations, there was no intent whatsoever that the 14th Amendment give the federal government control of state apportionment. As a matter of fact, there was a very good reason for making the 14th Amendment so limited in its application. This reason is summarized by Judge Harlan as follows:
The facts recited above show beyond any possible doubt . . . that Congress did not include in the Fourteenth Amendment restrictions on the States' power to control voting rights because it believed that if such restrictions were included, the Amendment would not be adopted.(33)
Comments From Dissenting Opinions
Other comments in dissenting opinions by Justices Frankfurter and Harlan declaring that the majority of the Court was not just interpreting the Constitution but was actually amending it are as follows:
The Court today reverses a uniform course of decision established by a dozen cases, including one by which the very claim now sustained was unanimously rejected only five years ago. . . . Such a massive repudiation of the experience of our whole past in asserting destructively novel judicial power demands a detailed analysis of the role of this Court in our constitutional scheme. . . . To find such a political conception legally enforceable in the broad an unspecific guarantee of equal protection is to rewrite the Constitution.(34)
The claim for judicial relief in this case strikes at one of the fundamental doctrines of our system of government, the separation of powers. In upholding that claim, the Court attempts [p. 66] to effect reforms in a field which the constitution, as plainly as can be, has committed exclusively to the political process.(35)
This Court, limited in function . . . does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process. For when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality substitutes its view of what should be so for the amending process.(36)
It should be emphasized that these dissenting opinions by Judge Frankfurter and Judge Harlan are not offhand conclusions but are carefully thought out and well documented analyses by judges who are regarded as two of the most mature, experienced, and learned members then serving on the Supreme Court.
Supreme Court Rejects Federal Analogy
One of the arguments used by the states to justify their existing apportionment was what was called the "federal analogy." Surely, they contended, the Supreme Court could not declare unconstitutional apportionment arrangements similar to those provided for the federal government in the Constitution itself. They pointed, for example, to the following ways in which federal representation is not based on population.
1. Each state has equal representation in the Senate, regardless of population.(37)
2. The Constitution may not be amended to deprive any state, without its consent, of its equal representation in the Senate.(38)
3. Each state has at least one representative in the House of Representatives, regardless of its population.(39) [p. 67]
4. The number of presidential electors chosen in each state is equal to the whole number of its senators and representatives. If no one candidate receives a majority of the electoral votes, the President is chosen by the House of Representatives voting by states rather than by population.(40)
However, the Supreme Court held the federal analogy to be "irrelevant to state legislative districting schemes."(41) The majority opinion justified this conclusion by first pointing out that the federal system was not intended as a pattern of what might be permissible, but was simply a compromise without which the Constitution would not have been adopted.
The system of representation in the two Houses of the Federal Congress is . . . one conceived out of compromise and concession indispensable to the establishment of our federal republic.(42)
Another reason the Court gave for considering the federal analogy irrelevant was that the states of the federal government are separate and independent sovereign entities that have surrendered some of the sovereignty to form a more perfect union, whereas the counties or other election districts are merely political subdivisions created by and continuing at the sufferance of the states.
Political subdivisions of States — counties, cities, or whatever—never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.(43)
Following its explanation of why it considered the federal analogy irrelevant, the Court went on to explain why it felt it necessary that both houses of a state legislature [p. 68] be apportioned by population. The Court's concern was that if one branch of a state legislature can be apportioned other than on a population basis, it would be possible for the minority to frustrate the will of the majority.
Deadlock between the two bodies might result in compromise and concession on some issues. But in all too many cases the more probable result would be frustration of the majority will through minority veto in the house not apportioned on a population basis.(44)
Supreme Court Rejects Framers' Constitutional Philosophy
The Supreme Court's rejection of the federal analogy argument in order to facilitate majority control confirms the correctness of Judge Frankfurter's comment in his dissenting opinion in Baker v. Carr concerning the real issue in these reapportionment cases. Judge Frankfurter wrote:
What is actually asked of the Court in this case is to choose among competing bases of representation—ultimately, really, among competing theories of political philosophy.(45)
As pointed out elsewhere in the work,(46) it was the political philosophy of the Framers that democracy was an intrinsically undesirable and unstable form of government. For example, James Madison wrote:
Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property.(47)
It was the feeling of the Framers that while in general the will of the majority should control, the majority should not be able to disregard the will of the minority. Hence [p. 69] there were built into the Constitution devices for protecting minority rights by limiting the power of the majority. While it is true that the arrangements worked out were the result of compromise, the system adopted was in harmony with the philosophy of the Framers and did not represent a surrender of their basic principles.
However, in these apportionment cases, the Supreme Court not only amended the Constitution to take upon itself authority over state apportionment, but it also imposed on the states a democratic theory of political philosophy contrary to that of the Framers. In doing so, it disregarded the traditional American concept that questions of political philosophy are matters that should be decided by the people through their elected representatives. Certainly such basic decisions should not be imposed on the people by judges not selected by them or accountable to them. In this regard there is in Judge Frankfurter's dissenting opinion in Baker v. Carr an interesting quotation from an early opinion by Judge Woodbury.
Fortunately for our freedom from political excitements in judicial duties, this court can never with propriety be called on officially to be the umpire in questions merely political. The adjustment of these questions belongs to the people and their political representatives. . . . These questions relate to matters not to be settled on strict legal principles . . . if the people . . . should ever think of making judges supreme arbiters in political controversies . . . they will dethrone themselves and lose one of their own invaluable birthrights; building up . . . —slowly, but surely—a new sovereign power in the republic, in most respects irresponsible and unchangeable for life, and one more dangerous, in theory at least, than the worst elective oligarchy in the worst of times.(48)
Essentially, what the Supreme Court did in these cases was to undercut a widely and successfully used method of protecting minority groups against having their wishes and [p. 70] interests engulfed by the voting strength of the large population centers. This has led to the comment that in these cases the Supreme Court accomplished a gerrymander, which is a device by which persons in key political positions distort political processes to increase the influence of those who support them or agree with them and diminish the influence of those who oppose them or their point of view.(49)
In justification of these decisions, it is sometimes argued that the Supreme Court had to take the law into its own hands because of the unwillingness of the states to reapportion their voting districts fairly. If fairness were really the Court's objective, it would seem that this could have been accomplished by correcting clear abuses without imposing on the states a political philosophy contrary to that of the Framers. Those who are inclined to feel impressed by this argument, that the Supreme Court's action was necessary to correct clear abuses the states were unwilling to correct, should look closely to the case of Lucas v. Forty-Fourth General Assembly of Colorado.
In Colorado two alternative reapportionment proposals were presented to the voters. One proposal provided that both houses of the legislature should be apportioned solely according to population. The other proposal provided that the lower house be apportioned solely according to population, but that the upper house be apportioned according to population and other interests. The voters of the state rejected the first proposal and adopted the second by a more than two to one majority.
Suit was brought by a small group of voters who claimed that the method of apportionment so overwhelmingly adopted by the people was unconstitutional. Even though a majority of the voters in every county in which any of the plaintiffs lived voted for the method of apportionment that was adopted, the Supreme Court set it aside. [p. 71] Chief Justice Earl Warren, in writing the majority opinion, declared:
An individual's constitutionally protected right to cast an equally weighted vote cannot be denied even by a vote of a majority of the state's electorate.(50)
As indicated in the foregoing discussion, there was no such "constitutionally protected right" until the Supreme Court in these cases created one, in spite of the fact that such a "right" was plainly contrary to the philosophy of the Framers and the provisions of the Constitution.(51)
Meaning of "Constitutional" In Court Opinions
This use by the Supreme Court of the expression "constitutionally protected right" raises a question of the meaning of the word "constitutional" as used by the Supreme Court today.
When the Supreme Court says that something is constitutional or unconstitutional, many people believe this means that they have found it to be consistent or inconsistent with the words or principles of the Constitution as intended by the Framers. Actually, as illustrated in these cases, this is not the correct meaning of these words when used by the Supreme Court today. Instead, the words constitutional or unconstitutional used in modern Supreme Court opinions simply mean that at least 5 of the 9 judges believe this is what the law should or should not be, even though their decision may be the opposite of the wording of the Constitution and of the known intent of the Framers.
Supreme Court Responsible for Unconstitutional Changes
It is sometimes argued that the Supreme Court is not to blame for changing the Constitution because it cannot [p. 72] take the lead in initiating changes, but only interprets laws made by Congress and the state legislatures. There are several basic weaknesses in this argument.
1. It overlooks the reality of court-made law. America's basic system of law is the Common Law, which is actually court-made law except to the extent changed or added to by legislative enactments. One of the fundamental principles of the Common Law has been that of stare decisis (pronounced star'e di si'sis) which essentially means that prior decisions are regarded as binding in similar future cases. However, in recent years the courts have taken upon themselves to an increasing extent the right to change prior law without waiting for action by the legislature.(52)
2. Laws passed by legislatures today are molded by prior Supreme Court decisions to a very real extent. Such molding results from the fact that proposed laws are consciously and deliberately drafted to comply with standards set by the Supreme Court in its prior decisions. This is done with full realization that if those standards are not complied with, the legislation being drafted may be declared "unconstitutional," even though it is clearly in harmony with the plain wording of the Constitution and the known intent of the Framers.
3. Some of the most sweeping changes have been initiated directly by the Supreme Court in its decisions of cases before it. In the legislative reapportionment cases for example, prior enactments by Congress and the states were in harmony with the words of the Constitution and the intent of the Framers. Yet, the Supreme Court, on its own, with no prior legislation in the direction it chose to go, changed the Constitution and overruled the repeatedly considered judgment of Congress.
Furthermore, the argument that the Supreme Court does not lead misses the point of one of the most important functions of the Supreme Court. That is its function to [p. 73] prevent the Constitution from being corrupted. The Supreme Court is charged with the responsibility of protecting the Constitution as written and intended by the Framers and understood by the people who adopted it, until it is changed in the proper way by amendment.
This responsibility of the Supreme Court to protect the Constitution is as clear as the responsibility of a policeman to maintain order. If the people start a riot, their culpability does not excuse him from neglecting his duty and joining in the riot. In fact, if he does so, he is much more culpable than they because he's also violating his duty to stop the riot. Similarly, if Congress passes a law which violates the Constitution, such action by Congress does not justify the Supreme Court in also violating the Constitution.
The Supreme Court has recognized its obligation to protect the Constitution against changes made by others, as is evidenced by the many times it has declared unconstitutional acts of Congress or state legislatures. Yet, when it changes the Constitution by interpretation, it is itself doing the very thing it recognizes its obligation to prevent others from doing.
It is therefore submitted in all soberness and without rancor or emotionalism that the many changes that have been made in our constitutional system without amendment in the manner provided in the Constitution are the direct responsibility of the Supreme Court for the following reasons:
1. The Supreme Court has violated its acknowledged duty to protect the Constitution against unconstitutional changes made by others. Instead, it has "reinterpreted" (changed) the Constitution to conform to such unconstitutional changes.
2. Even in the absence of unconstitutional changes initiated by legislatures or other government agencies, the Supreme Court has decided cases before it on principles contrary to the words of the Constitution, the known intent [p. 74] of the Framers, and the understanding of the people who ratified the Constitution. In this way, the Supreme Court has itself taken the initiative in imposing unconstitutional changes. An example of such a direct court-made unconstitutional change is in the reapportionment cases just discussed.
Jefferson Foresaw Danger
What has actually happened has confirmed Thomas Jefferson's oft repeated fear that the federal judiciary would ultimately be the means of destroying our free constitutional system. For example, he said:
It has long 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 scarecrow), working like gravity by night and by day, gaining a little to-day and a little to-morrow, 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 centre 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.(53)
Congress Also Responsible
Although the Supreme Court is directly responsible for the many unconstitutional changes, it is not solely responsible for them. Under the system as designed by the Framers, it was not intended that any one branch of the government be vested with final authority, thereby making that branch superior to the others. Instead it was intended that, as men with ambition and drive in a particular department begin to usurp authority, those in the other departments because of their own ambition and drive, [p. 75] would repel such invasions. To accomplish this, the Framers took care to provide each department with not only the incentive, but also the means to repel such usurpations. This concept was expressed in The Federalist in these words:
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.(54)
As indicated earlier in this work,(55) the Framers provided a specific means by which Congress can check the authority of the Supreme Court and protect itself and the American system against judicial usurpation. Practically all cases involving possible judicial usurpation of authority come before the Supreme Court on appeal from lower courts. As to these cases, the Framers made the authority of the Supreme Court subject to the control of Congress; thereby giving Congress the constitutional means to clip the wings of the Supreme Court if it should become necessary to check its usurpations of authority. The specific constitutional provision is as follows:
In all other Cases before mentioned, the "Supreme Court" shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.(56)
The responsibility for the many unconstitutional changes made by the Supreme Court must, therefore, be shared by Congress. This is because Congress failed to use the means provided by the Constitution to do its constitutional duty of protecting the system against judicial usurpation. [p. 76]
People Also Responsible
Furthermore, the blame for the unconstitutional changes must be shared by the people. It should be clearly borne in mind that the preservation of the constitutional system rests ultimately not with mechanical checks and balances, but with the people themselves. The failure of constitutional systems patterned after America's to secure liberty in other countries is evidence of this truth. James Madison expressed it this way:
No theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men; so that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.(57)
This ultimate responsibility of the people for the preservation of their constitutional system and their sleepy unconcern while the bulwarks of America's freedom are destroyed was clearly understood by President McKay who said:
We therefore commend and encourage every person and every group who is sincerely seeking to study Constitutional principles and awaken a sleeping and apathetic people in the alarming conditions that are rapidly advancing about us.(58)
It is interesting to note in President McKay's statement an echo of a famous statement made by James Madison in the context of the need for vigilant and jealous guarding of liberty. [p. 77]
It is proper to take alarm at the first experiment on our liberties.(59)
Desirable Actions By People
In taking alarm, what should the people do about the Supreme Court's unconstitutional usurpation of authority?
In the first place, they should study this country's constitutional system from authentic sources and learn the basic principles of the system and the intent of the Framers. In making such a study, care should be used to distinguish between true constitutional principles and the counterfeit constitutional principles which are now so popularly believed, taught, and promoted. Although the counterfeit principles are made to sound plausible, they are really the philosophy of men mingled with constitutional sounding words and phrases.
In addition, the people should be indignant, vocal, and insistent that the unconstitutional tampering with the constitutional system be stopped and that the damage that has been done be corrected; and they should persist until these results are fully accomplished. Such persistent indignation would not only correct existing damage, but would serve as a warning that future usurpation will not be tolerated.
Furthermore, the people should be much more concerned about who is appointed to the Supreme Court. The constitutional philosophy of most persons nominated to serve on that court is known from their prior writings and speeches.(60) Although many persons nominated to serve on [p. 78] the Supreme Court have previously indicated a clear rejection of the principles of the Constitution as designed and intended by the Framers, there seems to have been little objection to their confirmation by the Senate on this ground. Again, if the people would insist to their Senators that only those appointments be confirmed in which the nominee has indicated a clear belief in the principles advocated by the Framers (who Mormons believe to have been inspired), the Senate would not confirm the others; and the President would be on notice to submit only the names of those who have indicated support of the Constitution in the tradition of the Framers. [p. 79]
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