Popular Sovereignty, the Executive, Congress, and SCOTUS: Battle for Supremacy (Part I)

Most of the information in this post are from books written by law professor Louis Fisher. Although his books are insightful, I by no means agree with Fisher’s interpretation of the Constitution as being a living organism changing with the times. Before discussing the purposeful contents of this blog, I will first like to dispel why Louis Fisher’s constitutional views are misguided.

First, Fisher comes to the conclusion that an originalism interpretation of the constitution is wrong by using selective originalism. For instance, Fisher would cite Madison’s Federalist 44 where he writes the Constitution was intentionally written in general or vague terms to allow Justices flexibility to interpret the document in the future. Maybe, but in Federalist 78 Hamilton writes the Supreme Court would be the weakest branch in government. If the Supreme Court was to be a weak branch of government then why would broad interpretations of the Constitution be permissible? My point is that that Federalist 78 and 44 contradict each other. Fisher may argue that the Supreme Court may have limited powers in the Federalist Papers but Congress and the President have broad powers. But in the next federalist paper (45) Madison wrote: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.” This certainly does not sound like Madison promoted a broad interpretation of Constitutional powers for the federal government at the expense of the state governmental powers.

In another example, Fisher explains how Madison intentionally left the word “expressly” out of the Tenth Amendment (written as: “powers not delegated to the United States” instead of “powers not expressly delegated to the United States”) provided wiggle room for Chief Justice Marshall’s opinion in McCulloch v. Maryland to uphold the National Bank. But what Fisher fails to mention is that Madison was vigorously opposed to the National Bank. If Madison had hindsight that Marshall would make a play on his words he would have put the word “expressly” in the Amendment. Another example of Fisher’s selective originalism is Madison’s argument that the “Appointment Clause” can be implied to mean the President also has “removal” powers (the President can both appoint and remove candidates). Madison’s removal power theory was upheld by the Court in Myers v. United States, but not until 1926. Madison’s removal power theory makes perfect sense, but supporting some implied powers did not mean Madison approved of the implied power of Congress to create a National Bank for carrying out taxing power. In fact, Madison cautioned if it is implied a National Bank can be created for taxing power then there is no power that can be denied the federal government. Madison’s fears have come to fruition since the Federal Government continues to grow in size and stature. Appointment and removal were closely related, a National Bank and taxing were not! It was intuitively evident that either the Executive or Congress would have removal power, but it was not intuitively evident the Federal Government would have the power to incorporate any business let alone a bank. Fisher argues against originalism by asking questions such as which Framers do we select; which periods of their lives do we evaluate; what documents, letters, or diaries do we use; which is more important the Constitutional Convention or the Ratification Conventions and so on. The answer to these questions is we should consider all information available and not selective information as Fisher does by bringing forth a few of Madison’s statements.

Fisher would also argue that Justice Taney used original intent to deny citizenship to African-Americans in Dred Scott. That is not even remotely true. Taney created the concept of dual citizenship (national and state) to make his argument even though the Marshall Court had already decided that a citizen of state was a citizen of the nation (Shanks v. Dupont, 1830). Taney violated stare decisis and the intent of the framers by implying that state and national citizenship were not one in the same in Dred Scott v. Sanford. In fact, the Dred Scott case was such an anomaly, it was the first case in our history that the Court struck down an act by Congress (the Missouri Compromise). Taney’s opinion drifted from original intent so he could input his own opinion, bias, and prejudice about slavery in the decision. Dred Scott was also the first decision that used substantive due process (incorrectly) to protect the property rights (slaves) of Southerners. None of the doctrines used by Taney in Dred Scott (dual citizenship, substantive due process, and judicial activism) support originalism, but instead support a living Constitution.

Let’s consider another example of Fisher’s misguided philosophy. Fisher likes to cite the prayer case, Engel v. Vitale (1962), in most of his writings. In this case, the Court ruled that a prayer written by a public school which was recited by its students on a daily basis was unconstitutional. I certainly understand Fisher’s point that this did not remove prayer from schools as many conservatives argued. The decision merely removed prayers written and designed by a public institution. But it was still a bad decision because the Court moves in “baby steps” as noted by Fisher. Hence, Engel v. Vitale was the first step leading to decisions such as Lee v. Weisman (1992) were the Court invalidated a benign and neutral prayer at a high school graduation. In Newdow v. Elk Grove School District (2002) the Court ruled no standing or the words “under God” would have been removed from the Pledge of Allegiance based on the Weisman precedent. The Court has even removed displays of the Ten Commandments from public grounds (McCreary County v. ACLU, 2005). According to these views and the living Constitutional interpretations of the Establishment Clause (which was only meant to prevent a National Religion) the words “In God We Trust” will eventually be eliminated from our currency; government run fire departments will have to let churches burn to the ground; and pastors who commit crimes will be shielded from government prosecution. This is the result of interpreting the Constitution as a living document instead of its original intent. The assault on religion started with a ridiculous modern and very broad interpretation of the separation of church and state doctrine introduced by Hugo Black in Everson v. Board of Education in 1947 (separation of church and state does not exist in the Constitution). Separation of church and state was a statement written by a Thomas Jefferson in a courtesy letter to a Connecticut church. Remember, Jefferson was not a participant in the Constitutional Convention, nor did he write any of the Amendments in the Bill of the Rights. Sometimes a fairly benign decision is merely a stepping stone to further, more intrusive decisions. It may take 20 or 50 years, but when the Court adopts doctrines such as separation of church and state which are outside the scope of the Constitution they become harmful exercises that will result in the violation of individual liberties. Although Fisher does not believe in originalism, the outcome in Engel v. Vitale is another case of selective originalism (one Thomas Jefferson letter when there are hundreds of other documents by other Founders at the Convention who have entirely different views of the Establishment Clause).

Fisher believes historical development (excluding the founding) and even scientific or social studies have as much, if not more, impact on the law than the law itself. For instance, Fisher incorrectly theorizes that original intent would not reconcile with the Court’s ruling in Brown v. School Board to end segregation. Fisher says without social science evidence showing that black children felt more inferior to white children segregation would continue. This is not true, and I have written blogs about this topic specifically. Fisher also points to the Eighth Amendment and the “Cruel and Unusual Punishment” clause and how it has evolved with changing public views to outlaw the death penalty in many states. Yet, at the same time, Fisher dismisses the use of Natural Law to reconcile the Constitution with the Declaration of Independence. This makes little sense. Changes in perception over the death penalty may in fact be to belief in natural law principals. In fact, the Civil Rights Act of 1866, Coryell v. Corfield, and Meyer v. Nebraska have put forth many Fundamental Rights found in Natural Law as good precedent and law of America. For instance, Fisher disagrees with Justice Frankfurter’s Natural Law doctrine to strike down violations of rights that “shock the conscience” but that is exactly what is happening with changing views over the death penalty. To many, the death penalty shocks the conscience and it is therefore wrong because it violates Natural Law. Fisher is quick to dismiss many Fundamental Natural Rights such as freedom of contract, but he supports Fundamental Natural Rights such as the freedom to choose. Why is fair to say a person can choose to have an abortion but at the same time they cannot choose how many hours they work or how much wheat they can grow on their farm without government intrusion? Because Fisher believes that Congress has correctly decided economic issues: one size fits all and therefore national economic plans assume the economic conditions in New York City are the same as in Cheyenne Wyoming. This is precisely why we have states and localities.

Fisher is right the Court follows popular sovereignty or the will of the people (history). And that is precisely why history is not always the best avenue to judge cases. Some of the biggest injustices in history were decided because a majority of Americans agreed with slavery, segregation, eugenics, women inferiority, sterilization, the internment of a race, abortion and so on. History is often wrong, but the law is not, especially Natural Law and the original intent of the Constitution! Fisher’s “living Constitution” provides for decisions based on judicial activism, bias, prejudices, and opinions but not the law. The government does not create rights, rights exist before government. Government only protects rights. Now onto the purpose of this blog.