Posted by
gneal on Wednesday, July 05, 2006 9:59:36 PM
During the weekend leading up to, and the actual celebration of Independence Day, 2006, I was reminded that several amendments to the Constitution are being discussed, some hopefully, some seriously, There is outrage over the recent Supreme Court decision in Hamdan v. Rumsfeld, increasing the legal and civil rights of terrorists held at Guantanamo Bay, along with the usual demand that Congress “do something.”
Last year it was the Kelo decisions attacking private property rights. There is a push for an amendment to ban flag burning, another to define marriage as a union between one man and one woman. About this time last year, Oklahoma Congressman Istook co sponsored, with Sanford Bishop (D-Ga), a proposed amendment to restore religious freedom and he promised to reintroduce it each year till it passes. All of the proposed amendments try to reverse bad Supreme Court decisions. All the amendments are wrong—not because they lack merit but because they are too narrowly focused. The problem is not the individual decisions of the Supreme Court, the problem is the Supreme Court.
U.S. Supreme Court Justice Louis Brandeis, dissenting in Olmstead v. U.S. (1928), wrote,
Experience should teach us to be most on our guard to protect liberty when the government’s
purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty
by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of
zeal, well meaning but without understanding.
In the year 2000, Justice Scalia accurately stated in his dissent in the Dickerson case that the Supreme Court had given itself the power to amend the Constitution. The only remarkable thing about Dickerson is the Court came out and openly stated (in lawyer-speak, of course) that it could amend the Constitution. In fact it had been covertly amending the Constitution at least since the Warren Court of the 1950s.
It will never be possible to amend the Constitution fast enough and often enough to keep up with an illegitimate, activist Supreme Court. Of some ten thousand amendments proposed during the history of this nation, only twenty-seven have been ratified to become a part of the Constitution.
If several amendments compete for the public’s attention, it diminishes the probability that any one of them will be adopted. Instead, the people should unite in support of a single legitimate amendment under the provisions of Article V of the Constitution to take away the Court’s de facto power to amend the Constitution.
NOTE: Black’s Law Dictionary, 5th ed., defines de facto as “a past action, or a state of affairs which must be accepted for all practical purposes, but is illegal or illegitimate.” The Court's power to amend the Constitution exists because when the Court unlawfully seized that power we, the people, acquiesced and allowed it to get by with it. But the country still belongs to the people. The idea that this is a government "of the people, by the people and for the people" did not die when Abraham Lincoln was shot. We can still do something about it.
The Constitution does NOT give the Court the right of judicial review (overturning an Act of Congress) nor does it give the Court the power to amend the Constitution. See, U. S. Const., Art. V here: http://www.usconstitution.net/. In drafting the Constitution the founders considered, and specifically rejected, the notion that the Court could overturn an Act of Congress. Nonetheless, the Court seized that power in Marbury v. Madison (1803)].
We need to take the power back.