Chapter 2
The New Meaning of Judicial Review
Original concept of Judicial Review.
As the judicial branch of the federal government, the Supreme Court has the responsibility of judging the constitutionality of laws involved in cases that come before it. That responsibility was clearly expressed in the often referred to case of Marbury v. Madison in which Justice Marshall stated that where a case before the court involves a law incompatible with the Constitution, its duty is to enforce the Constitution and not the law contrary to it. This obviously sound doctrine came to be known as judicial review.
Changed modern concept of Judicial Review.
In time the doctrine of judicial review was changed although the label "judicial review" remained the same. Under the modem doctrine of judicial review the Supreme Court still purports to be enforcing the Constitution, but actually changes the Constitution to conform to what a majority of its justices feel the Constitution should have provided but did not.
In other words what the Supreme Court enforces is a Constitution of its own, which it refers to as the Constitution, but which in reality is not the Constitution that was drafted by the Framers and ratified by the people. This other Constitution enforced by the Supreme Court is an unwritten Constitution, the provisions of which are contained in various Supreme Court opinions. Its provisions are adopted and changed at will by the Supreme Court without any input or consent from the people.
It is important that Latter-day Saints understand how the Supreme Court misuses its Constitutional responsibility as part of deafly recognizing the difference between the true Constitution of the Founding Fathers and our present different form of government imposed upon us by unconstitutional actions of the Supreme Court.
Was the Constitution deliberately made flexible?
Various arguments are used to justify changes in the Constitution itself made by the Supreme Court under the modern changed doctrine of judicial review. For example, it is sometimes declared that the Framers deliberately made the Constitution flexible so it could be changed by Supreme Court interpretation. Proponents of that point of view even argue that the Constitution was intentionally made so vague that many of its terms require Supreme Court interpretation to give them meaning. [p. 13]
From that foundation they claim that the changes made by the Supreme Court have not violated the Constitution at all. Instead they contend that the Supreme Court has only done its duty in giving the Constitution meaning.
In addition they argue that changing that meaning from time to time is also within the Supreme Court's authority because that was what the Framers intended in order to avoid the necessity of amending or rewriting the Constitution to adapt it to changing circumstances.
Some people may find the flexible Constitution point of view impressive. But it is based on several major fallacies.
One fallacy is the assumption that the Constitution is so vague that Supreme Court interpretation is needed to give it meaning. The Framers went to great lengths to be clear rather than vague. While it is possible to argue about the application of particular provisions in unusual situations, the Constitution itself is clear enough for people of ordinary intelligence to read and understand.
Another fallacy is the way proponents of the flexibility point of view deceptively misuse the word "interpret" to make their position appear authentic. While it is true that the Supreme Court is authorized to interpret the Constitution in the sense of applying it to new and unusual factual situations, there is a world of difference between that meaning of "interpret" and changing the Constitution itself under the pretense of interpreting it.
A third fallacy is the premise that the Framers intended the Supreme Court to make necessary changes. On the contrary, the Framers intended and the Constitution provides that any necessary changes be made by consensus of the people in general. Changes were clearly not to be made by a handful of judges whose constitutional function is to decide cases between contesting litigants, not to decree fundamental changes in our system of government or the rights of individuals.
Judicial review and opinions of state court justices.
The arrogant and unconstitutional usurpation of authority by the United States Supreme Court has been largely concealed from the public by the silent acquiescence of the media. Although the media are sometimes referred to as the watchdog of the public interest, in this instance the watchdog has been facing in the wrong direction.
Opinions of justices of state courts are far less widely known than information carried in the major media. But they do have the advantage of being permanently bound so they are less likely to be lost with the passage of time. Occasionally state court justices clearly point out the high handed usurpation of the United States Supreme Court. For example, the following are some notable comments made by Utah Supreme Court justices in which the rogue status of the United States Supreme Court is described with great clarity. [p. 14]
In the 1968 case of Dyett v. Turner (439 Pacific 2nd 266), which involved a claim by a prisoner that he had not been sufficiently informed of his fight to counsel at state expense before he pleaded guilty, the main opinion written by Justice Ellett contains the following statement beginning at page 267:
The United States Supreme Court, as at present constituted, has departed from the Constitution as it has been interpreted from its inception and has followed the urgings of social reformers in foisting upon this Nation laws which even Congress could not constitutionally pass. It has amended the Constitution in a manner unknown to the document itself. While it takes three fourths of the states of the Union to change the Constitution legally, yet as few as five men who have never been elected to office can by judicial fiat accomplish a change just as radical as could three fourths of the states of this Nation. As a result of the recent holdings of that Court, the sovereignty of the states is practically abolished, and the erst while free and independent states are now in effect and purpose merely closely supervised units in the federal system.
We do not believe that justices of once free and independent states should surrender their constitutional powers without being heard from. We would betray the trust of our people if we sat supinely by and permitted the great bulk of our powers to be taken over by the federal courts without at least stating reasons why it should not be so. By attempting to save the dual relationship which as heretofore existed between state and federal authority and which is clearly set out in the Constitution, we think we act in the best interest of our country.
We feel like galley slaves chained to our oars by a power from which we cannot free ourselves, but like slaves of old we think we must cry out when we can see the boat heading into the maelstrom directly ahead of us; and by doing so, we hope the master of the craft will heed the call and avert the dangers which confront us all. But by raising our voices in protest we, like the galley slaves of old, expect to be lashed for doing so. We are confident that we will not be struck by 90 percent of the people of this Nation who long for the return to the days when the Constitution was a document plain enough to be understood by all who read it, the meaning of which was set firmly like a jewel in the matrix of common sense and wise judicial decisions. We shall not complain if those who berate us belong to that small group who refuse to take an oath that they will not overthrow this government by force. When we bare our legal [p. 15] backs to receive the verbal lashes, we will try to be brave; and should the great court of these United States decide that in our thinking we have committed error, then we shall indeed feel honored, for we will then be placed on an equal footing with all those great justices who at this late date are also said to have been in error for so many years.
The introductory comments quoted above are followed by a major discussion of constitutional history pointing out the groundlessness of the United States Supreme Court's pretended authority.
In the 1975 case of Utah v. Phillips (540 Pacific 2nd 936), which involved a claim that the Utah pornography statutes are unconstitutional, the main opinion written by Justice Crockett contains the following statement on federal misinterpretation of constitutional law beginning at page 938:
This has resulted in a constant and seemingly endless process of arrogating to the federal government more and more of the powers, not only not granted to it, but expressly forbidden to it, and in disparagement of the powers properly belonging to the sovereign states and the people. This development is a clear vindication of the forebodings of the founding fathers and their fears of centralization of power. This was but natural because of the conditions out of which our form of government came into being and because history is strewn with other examples which demonstrate that undue, uncontrolled and unwieldy concentrations of power in any individual or institution tends to destroy itself. It is our opinion that this is the evil which the founders feared so keenly and tried so zealously to guard against, but which is now rife upon us. It is plainly evident that it was their desire and purpose to avoid this by providing for what they believed to be an essential and desirable balance of power between the sovereignties of the states and of the federal government.
What we have just said is with the utmost respect, and indeed devotion, to our system of government. This includes devotion to the founders' concept of a sovereign nation consisting of sovereign states, with the respective sovereignties so interrelated that their sovereign powers check and balance each other; which we think it is of the utmost importance to respect and maintain. Consequently, we feel impelled to voice our disagreement with the almost unbelievable arrogation of power by and to the federal government and its judiciary. [p. 16]
Agitation in selection of Supreme Court justices.
Many comments have been made about the remarkable change in the process of selecting and confirming Supreme Court justices. In the past the process was usually quiet and without agitation, while today there is much agitation and behind the scenes maneuvering.
The difference is not hard to explain. When people believed Supreme Court justices only applied the law, they were not greatly concerned with who was appointed to the Supreme Court. But as people have become increasingly aware that Supreme Court justices make and change law and even change the Constitution, they have been greatly concerned that justices be appointed whose political philosophy is similar to their own.
In addition, those committed to the prevailing Constitution of the Supreme Court philosophy have gone to great lengths to be sure no one committed to the Constitution of the Founding Fathers becomes a Supreme Court justice.
The Senate rejection of Judge Robert H. Bork.
The 1987 nomination of Judge Robert H. Bork to become a justice of the United States Supreme Court is an instructive example. Although Judge Bork was an unusually well qualified nominee, his confirmation was furiously opposed with a combination of misrepresentation and political pressure that resulted in his being rejected by the United States Senate.
What was there about Judge Bork that was so frightening to those who engineered the campaign against his confirmation?
Judge Bork was committed to the idea that a judge is to "apply to modem circumstances the principles laid down by those who adopted our Constitution but must not invent new principles of his own." (The Tempting of America, by Robert H. Bork, p. 318)
In describing what was really at issue in the Senate hearings, Judge Bork wrote:
The orthodoxy of original understanding, and the political neutrality of judging it requires, are anathema to a liberal culture that for fifty years has won a succession of political victories from the courts and that hopes for more political victories in the future. The representatives of that culture hate the American orthodoxy because they have moral and political agendas of their own that cannot be found in the Constitution and that no legislature, or at least none whose members wish to be reelected, will enact. That is why these partisans want judges who will win their victories for them by altering the Constitution. (Ibid., p. 7) [p. 17]
Former heresy becomes new orthodoxy.
I believe Judge Bork was correct in characterizing as heresy from the American orthodoxy of original understanding of the Constitution the presently popular concept of judges deciding cases the way they personally think they should be decided, instead of according to the Framers' Constitution. He wrote:
The heresy, which dislocates the constitutional system, is that the ratifier's original understanding of what the Constitution means is no longer of controlling, or perhaps of any, importance . . . . The result is a belief, widely held and propagated in the law schools and even by some Justices of the Supreme Court, that judges may create new principles or destroy old ones, thus altering the principles actually to be found in the Constitution. The innovations are announced in the name of the Constitution—though they have little or nothing to do with it—and are therefore intended to be, and are accepted as, final. (Ibid., pp. 6-7)
In commenting further on that heresy, Judge Bork perceptively explained:
Courts have behaved in this way on occasion throughout our history, but never so often as in the modem era; what is more ominous, never before has such behavior been so popular in the law schools, in the press, and in the opinions of elite groups generally. Heresy sometimes becomes so pervasive that it becomes the new orthodoxy. (Ibid., p. 7)
Promoting the new orthodoxy.
In my opinion, one important danger resulting from acceptance of this heresy, that I believe actually has become the new orthodoxy, is the way it influences many who otherwise might expose its unsoundness. This danger arises out of the reality that conformity (or at least the appearance of conformity) is the usual price of acceptance as a recognized authority.
The impetus to conform to the former heresy become new orthodoxy reaches even to judges who may not previously have been infected by it. For example, Judge Bork wrote:
Judges are aware that there is an enormous literature and that it is almost entirely disapproving of the idea that courts are bound by the original understanding of the Constitution . . . . It is, moreover, important to federal judges to be well-thought-of and well-written-about in the law schools. Over time, disdain [p. 18] for the original meaning of the Constitution has a considerable impact. (Ibid., pp. 135-136)
What about the influence on law students who will become future lawyers, law professors and judges? Judge Bork wrote:
Few students will master the complexities of the particular systems taught by the constitutional gurus in their schools, but that is not important. What is learned is an attitude . . . . Generations of law students are being trained to believe that one or another method of reasoning from nonlegal sources provides the method proper to constitutional argument. (Ibid., p. 135)
Aside from being taught to disregard or explain away the words of the Framer's Constitution, and ignore the understanding of the people who ratified it and the intent of the Framer's themselves, what is it that law students are affirmatively taught is the true meaning of the Constitution? Of this Judge Bork wrote:
Law school moral philosophy . . . turns out upon examination to be only a convoluted way of reaching the standard liberal or ultra-liberal prescriptions of the moment. One of my colleagues suggested that a professor of this bent change the name of his course from "Constitutional Law" to "Trendiness Made Complex." What the students learn, to put it bluntly, is that legal reasoning of the sort that served us for centuries is now utterly outmoded, and a verbal formulation can always be devised to reach the correct political result. (Ibid., p. 135)
Some additional reasons the Supreme Court does not apply the Framers' Constitution.
There are significant additional reasons that help explain why the Supreme Court would apply a Constitution other than that of the Framers.
For many years it has been customary in our educational system to belittle the Framers and to disparage the Constitution they produced. In fact, even though the Constitution is based on human nature rather than an agrarian or industrial society, the untrue statement has frequently been made that the Constitution is outmoded and no longer appropriate for our modern industrial society because it was designed for an 18th Century agrarian economy. Supreme Court justices raised and trained in that intellectual environment have not held the Constitution in high regard or felt a strong loyalty to it.
Additionally being a judge on the highest court of what has come to be a great nation is a heady experience. Supreme Court justices tend to think very highly of their own [p. 19] opinions and do not hesitate to prefer them to the provisions the Framers incorporated into the Constitution.
Another reason the Supreme Court has been inclined to substitute its own Constitution for that of the Framers is that over the years many of our people, including Supreme Court justices have been influenced to reject the freedom oriented political philosophy of the Framers and adopt the political philosophy of using government and law as tools for accomplishing desirable social engineering.
Consistent with this attitude of disrespect for the ideas of the Framers and desiring and being willing to move in a different direction based on a different political philosophy, the Supreme Court has developed the practice of deciding cases on the basis of what a majority of the justices think the Constitution should have provided rather than what it does provide.
Since the Supreme Court has referred to its decisions as the Constitution or required by the Constitution, many people have not recognized what was happening.
Similar to "philosophy of men mingled with scripture."
There is another matter I believe should be mentioned in connection with the way the Supreme Court uses the words "Constitution" and "constitutional" and fragments of the Constitution to give the impression that its unconstitutional decisions are in harmony with the Framers' Constitution.
I believe the Supreme Court's use of such labels and fragments is similar to a religious practice familiar to Latter-day Saints. Calling attention to that similarity should make clearer to Latter-day Saints the reality of what the Supreme Court does.
That similar practice in a religious context is using words and expressions from the scriptures to give religious teachings in opposition to the scriptures an aura of scriptural authenticity. False doctrines so presented are correctly characterized as "the philosophy of men mingled with scripture."
I believe it would be accurate to similarly characterize many Supreme Court decisions as the philosophy of men mingled with out of context fragments of the Constitution.. [p. 20]
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