America's Anarchy and Its Cause

 

What Is The Constitution?

(A re-post, by request.)

by Orrin Hatch

On this day, [228] years ago, 12 state delegations approved the new Constitution of the United States and 39 of the 42 convention delegates signed it. They sent it to the states for ratification, the act that would make it the supreme law of the land. It is worth focusing on just what the Constitution actually is.

The Constitution opens by saying: “We the people . . . do ordain and establish this Constitution.” Nearly all Americans say the Constitution is very important to them and it requires that virtually all legislative, executive, and judicial officers, both state and federal, “shall be bound by oath or affirmation, to support this Constitution.” But what is this thing called the Constitution that the people established, that Americans say is so important, and that public officials swear to support?

The Constitution is the oldest written charter of government in use in the world today. Anyone who can read knows what the Constitution says. But words alone are just inkblots, and ordaining and establishing the Constitution was much more than simply putting some words on a page. Constitution Day would hardly be worth the name if it celebrated nothing more than a collection of words with no meaning. The Constitution we recognize today is more than an empty shell, it is more than what it says. The Constitution is what it means.

Think about judicial review, perhaps the most powerful thing that federal judges do in our system of self-government. In an appropriate case, judges must determine whether a statute is consistent with the Constitution. If they conflict, the Constitution wins. As Alexander Hamilton put it in The Federalist No.78, it is the duty of judges “to declare all acts contrary to the manifest tenor of the Constitution void.” But here we are back to the same question — what is “the Constitution” that judges use to conduct judicial review? What is “the Constitution” to which statutes must yield?

Charles Evans Hughes, who would later become Chief Justice of the Supreme Court, famously said about a century ago that the Constitution is “what the judges say it is.” Since judges cannot change the words of the Constitution, Hughes was really saying what today seems to be widely accepted, that the Constitution means whatever judges say it means. But if Hughes was right, then judges in effect become the Constitution and judicial review means that statutes must yield to judges.

But Hughes was wrong. The Constitution does not mean, it cannot mean, whatever judges say it means. If it does, then Hamilton’s reference to its “manifest tenor” makes no sense. A century before Hughes, Chief Justice John Marshall offered the opposite view in Marbury v. Madison, the case often credited with establishing judicial review. Marshall wrote that we have a written Constitution so that the limits on government power “may not be mistaken, or forgotten” and that the Constitution is “a rule for the government of courts, as well as of the legislature.” Judges are part of the government. If the Constitution means whatever government says it means, then government determines the limits on its own power. That would render the Constitution impotent and hardly worth the effort expended at the Constitutional Convention.

Marshall wrote that the Constitution represents “the intention of the people.” Intention is expressed through the meaning, not merely the form, of words. The Constitution cannot be the intention of the people if all the people did was choose some words without meaning. The Constitution could not continue to be the intention of the people if its meaning could be changed by anyone but the people. Quoting George Washington, the Rhode Island Constitution declares that “the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.” Empty words oblige no one. To be the Constitution, it must not only say what they said but it must mean what they meant.

The Constitution – its words and their meaning – was established by the people, can only be changed by the people, and is sacredly obligatory upon all of government, including judges. This is why the debate over judicial selection is really a debate over judicial power. It is a debate over whether the Constitution controls judges or judges control the Constitution, over what the Constitution really is, with nothing less than liberty itself at stake.

— Sen. Orrin G. Hatch is a former chairman of both the Senate Judiciary Committee and its Subcommittee on the Constitution.

A Correction to the National News

Regardless of what you may have heard, Joe Miller has NOT given up his legal challenge - for better or worse. He will not stand in the way of the certification process, meaning that Lisa Murkowski can be sworn in for her second full term as U.S. Senator.

What he's doing now is continuing to challenge the State's process of counting the write-in ballots, insisting that Alaska follow the rule of law (no misspelled ballots) rather than counting everything that any election judge thinks is close enough.

It's not about "fairness", you see - it's about complying with the State statute. Years of activist judges ruling in favor of fairness, and not disenfranchising voters, have weakened the law to the point that there's no practical limit to what can be counted for (or against) a write-in candidate.

Put another way, when "fairness" is your guide, there's no actual standard against which a ballot can be measured.

* * * * *

It's 5 degrees this morning, but still no new snow. AccuHunch told us that there was a 60 percent chance of snow all day yesterday, so naturally we had clear skies & sunshine.

We do feel sorry for those who received the ice & snow from the winter storm in the Midwest, South, and East Coast. Y'all aren't as well-equipped to handle such things as we are.

Here's an idea: why don't you send it all back here? Everybody would be happier.

March 21st, 2010 - a New Date for Infamy

We have been betrayed, as Speaker Blinky & her Evil Party minions have rammed the unwanted healthcare "reform" package down our throats.

I'm seeing comments all over the board, on-line. Some are crying quietly, others are ranting, and some are threatening. The "window war" has been advocated by some, but I've not heard whether it was to any effect - although there was word, yesterday, that Rep. Slaughter's HQ window was broken by a brick.

The New York Post contains this nugget:

But what they object to, and will continue to resist, is the animating impulse that gives Washington more control over our daily lives. That is the definition of a statist, and it's what Obama is.

He is not troubled by the bribery for votes and the manipulated process because, to him, the end justifies the means.

Not surprisingly, he refuses to grasp why a clear majority of America now opposes his health care takeover.

"People have lost faith in government," he said at a recent rally in St. Louis. "They had lost faith in government before I ran, and it has been getting worse."

Actually, people haven't lost faith in government. They just don't think bigger is better. And the bigger he wants to make it, the less faith they have in him.

People are finally awakened, and no longer willing to play by the progressives' rules ... we've tried it, and it has resulted only in conservatives being the butt of insults, name-calling, dirty jokes, and calumny of all sorts.

As David Codrea says in his Examiner column:

Here's the thing: the rules don't just protect us as citizens. They also protect the government.

If we throw out rule of law and replace it with rule of men, no one will be protected.

We'll be forced to protect ourselves.

How?

I don't know. I suppose we'll make it up as we go.

It won't be fun, and it won't be pretty. But it will be for keeps.

U.S. Constitution & The End of the Rule of Law

I've been conciously avoiding a lot of the national news stories, precisely because there are so many talented bloggers who cover those stories so well. But this is too much to ignore: by ruling that Chrysler's sale to Fiat can proceed, the Supreme Court has effectively wiped its feet on the Constitution.

You remember the Constitution, don't you? It was a social compact designed to limit the rule of the central (federal) government, and protecting pre-existent rights. It expressly stated that any power or authority not specifically delegated to the central government was reserved to the States, from whence its authority was delegated.

But no more. By rejecting the argument that the federal government has no authority to upend the rule of law, and thereby setting aside centuries of contract law protecting investors, they have declared that the rule of law is over.

We now must face the fact that the country has entered an era wherein the "law" is whatever the government says it is. There are no protections; there are no rights; there is only federal edict.

You say I've gone too far? Ask yourself this: if a business contract (like the one between Chrysler and its investors) can be set aside with the stroke of a pen, or the word of a ruler, and those who were guaranteed a return on their investment are shown the door ... then who will EVER invest in any company, ever again?

This - all by itself - could have the effect of destroying the economy by removing stocks & bonds as investment vehicles. Please think about it. And then do the right thing. Support those who still believe in the Constitution, and in what America stood for, just a few short years ago.