Who Should Get to Interpret the Constitution?

This article appeared in Orange County Register on June 21, 2013.
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The Supreme Court this week finishes its latest term. Americans venerate the Constitution. But judges determine its meaning by interpreting its words.

Unfortunately, the result vindicates Otto von Bismarck, the famous German “Iron Chancellor,” who said no one should see sausages — or laws — being made. Because of judicial misinterpretation the Constitution has become largely irrelevant to Washington.

Everyone accepts the structural provisions — there are two houses of Congress and a Supreme Court, etc. Moreover, everyone admits that the Bill of Rights sets some limits on government.

However, the rest of the Constitution is treated like an antique wall decoration. Today the federal government essentially does whatever it wants.

Unfortunately, there may be no way to avoid judicial rule‐​making. Long ago the Supreme Court claimed to have the final say on the meaning of the Constitution.

Still, insisted Louis Fisher of the Library of Congress: “Being ‘ultimate interpreter,’ however, is not the same as being exclusive interpreter.” For instance, should Presidents enforce a law they believe to be unconstitutional?

That issue came to the fore when the Obama administration refused to defend the Defense of Marriage Act before the Supreme Court. President George W. Bush routinely approved laws while insisting that provisions within were unconstitutional. Congress, too, occasionally addresses the issue since legislators take an oath “to support and defend the Constitution.”

The potential conflict does not end at the federal level. State and even local officials have threatened to ignore federal laws and regulations they deem unconstitutional.

The final say logically goes to the judiciary, since the legislative and executive branches are most in need of constraint. In introducing the Bill of Rights, James Madison told Congress that courts “will be an impenetrable bulwark against every assumption of power in the Legislature or Executive.”

Still, judicial supremacy doesn’t prevent the other branches (or states and localities) from challenging the court’s interpretation.

The biggest problem today is that judges no longer actually interpret the Constitution. Madison’s “few and defined” powers for the national government have become “everything and unlimited,” essentially whatever officials want to do.

Some on the Left would drop the Constitution entirely. For instance, Louis Michael Seidman of Georgetown Law School urged Americans to abandon their “obsession with the Constitution [which] has saddled us with a dysfunctional political system.” We should just trust politicians to do the right thing.

If past political compromises are irrelevant, then anything goes. Which essentially reflects jurisprudence today.

There’s no need to go through the complex and uncertain process of changing the nation’s fundamental law if you can just pack the court and turn it into a continuing constitutional convention, available for use whenever necessary.

If courts have no obligation to enforce past political compromises, then why bother pretending that we live under a rule of law? Legislative and executive branch officials can act however they like, subject only to judges, who can decide however they like. It is government by zeitgeist. If it feels good, do it.

There may be no choice but to make judges the final arbiters of the Constitution. But they should not be the only people who interpret the nation’s basic law.

And given the bad job that jurists often do, the rest of us also must “defend and support” the Constitution. It may no longer be much of a bulwark for liberty. But today it is about all we Americans have.