American Jurisprudence as Sausage-Making: Who Interprets the Constitution?

The Supreme Court is finishing up its latest term, saving its most controversial decisions for last. Americans venerate the Constitution, but judges determine its meaning.

Unfortunately, the result of the judicial process vindicates German Chancellor Otto von Bismarck, who famously said that no one should see his sausages or his laws being made. As I point out in my latest Forbes online column, much of the Constitution is treated like an antique wall decoration: although the federal government is supposed to have only limited, enumerated powers, today it pretty much does whatever it wants.

Unfortunately, there may be no way to avoid judicial rulemaking. Louis Fisher of the Library of Congress argued: “Being ‘ultimate interpreter,’ however, is not the same as being exclusive interpreter.” 

It seems obvious that if you take an oath to support the Constitution, you shouldn’t act in ways that violate the law. Former congressman and judge Abner Mikva argued that a failure by Congress to consider constitutionality “is both an abdication of its role as a constitutional guardian and an abnegation of its duty of responsible lawmaker.”

Still, the judiciary long has had the final say. But that actually is supposed to limit government and protect liberty. As I wrote on Forbes online:

The final say logically goes to the judiciary, since the legislative and executive branches pass and approve/execute laws, respectively, making them the institutions in most need of constraint. Alexander Hamilton argued in Federalist 78 that limitations on government power “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

In this way, the judiciary was supposed to protect individual liberty. In introducing the Bill of Rights, James Madison told Congress: “If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislature or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.” (Tragically, this is no longer the case.)

Unfortunately, too many judges no longer really “interpret” the Constitution. That is why Madison’s “few and defined” powers for the national government have become “everything and unlimited. Basically, legislative and executive branch officials act however they like, subject only to judges, who decide however they like. It is government by zeitgeist—if it feels good, do it.

That means the rest of us need to work extra hard to “defend and support” the Constitution. It ain’t much of a bulwark for liberty these days, but it really is about all we have.