Our Dying Constitution

Federal Judge Vaughn Walker, who unilaterally redefined the millennia old definition of marriage in his California marriage decision, will not have the last word on this issue.  However, it is troubling who will.  Many constitutional "experts" from both sides of the marriage argument agree that this issue will inevitably be "settled" by Supreme Court Associate Justice Anthony Kennedy.  Thus, one judge (one man) may get to tell over 300 million people how they are allowed to order the very basis of their society.  How did it come to this? 

Our Constitution is dying.  It is being killed by judges who ignore the actual text of the Constitution but find previously unknown devices in its "penumbras and emanations."  When these judges do consider the text they usually redefine or replace it with other words that reconcile with the judge's personal beliefs and feelings.  As a result our national compact becomes more and more meaningless.

For instance, the "Commerce Clause," which, inter alia, authorizes Congress to "regulate commerce ... among the several States..." was redefined in 1942 in the Wickard v. Filburn decision to basically no longer require "commerce" or "among the several states."  In Wickard, the Supreme Court interpreted the Commerce Clause to mean anything "affecting" commerce can be regulated by Congress.  Of course, an argument can be made that everything affects commerce in some way.  Now, this once limited grant of power has become almost unlimited, which helps to explain why members of Congress think they can do almost anything.

"Establishment Clause" jurisprudence has also been victimized by a judicial rewrite.  In fact, the Establishment Clause is rarely even called this anymore having been rebranded the "separation of church and state" in the 1947 Everson v. Board of Education decision.  The Establishment Clause is the first clause in the First Amendment and reads "Congress shall make no law respecting an establishment of religion...."  Today, neither Congress, nor a law, nor an establishment of religion needs to be involved to run astray of this provision.  All that is needed is for someone to "take offense" at a putative government "endorsement" of religion (e.g., a Christmas tree on public land).  Justice Clarence Thomas used the words "hopeless disarray" to describe the current state of the Establishment Clause.

The debasement of the "Takings Clause" is another egregious example.  The Takings Clause, which appears in the Fifth Amendment, states "nor shall private property be taken [by the government] for public use, without just compensation [to the private property owner]."   The term "public use" is (or was) key to this clause.  Historically it was understood that if the government wants your property, it must buy it from you, at market value, and the reason must be for a public use (e.g. building a public road).   All of that changed five years ago when the Supreme Court decided in Kelo v. New London that "public use" really meant "public purpose."  The "public purpose" in the Kelo decision was so that Pfizer Corporation, a private pharmaceutical company, could build a new factory.  Thus, another specific restriction on government was repealed by judicial fiat leaving then Justice Sandra Day O'Connor to write in her dissent "all private property is now vulnerable to being taken and transferred to another private owner...." Judges have now changed what was once a specific protection of private property rights into an almost open ended right of government.

 brutal blow to the health of our Constitution was delivered when the court created the "right to privacy."  The court created this from the "Due Process Clause" in the Fourteenth Amendment.  That clause states "nor shall any state deprive any person of life, liberty, or property without due process of law ...."  From this judicial creation, the court has concocted, among other things, the right to abortion and the right to sodomy.  Many are hopeful that the aforementioned Justice Kennedy will create the right to "gay marriage" from there.  The Fourteenth Amendment was ratified in 1868 specifically to protect the newly freed slaves and the "Due Process Clause" ensured that all persons, including the freed slaves, had access to the laws of the United States.  Neither abortion, nor sodomy, nor rights based upon sexual compulsion have anything to do with the Due Process Clause.

Finally, there is the judicial phenomenon of reversing the meaning of the text.  A clear example of this is the judicial trickery in applying the Fourteenth Amendment's "Equal Protection Clause."  That clause provides that a state shall not "deny to any person within its jurisdiction the equal protection of the laws."  Courts have interpreted "equal protection" to allow for "affirmative action," which is a euphemism for race-based, sex-based and ethnic-based government favoritism.  Such favoritism assuredly precludes equal protection but Justice O'Connor, in her opinion in Grutter v. Bollinger, one of her less lucid moments while on the bench, said such unequal treatment was okay so long as it only lasted for another 25 years.  Does anyone think the "Wise Latina" will enforce that dying line when the time comes?

When judges disregard or redefine the plain words of our Constitution or make up things with absolutely no textual support, they render the document meaningless.  Proponents of these judges defend this chicanery by claiming the judges are only breathing life into our "living constitution" but in actuality they are killing it.

David P. McGinley, an attorney from McLean, VA, is a visiting professor at Handong International Law School in South Korea.