Protecting Our Constitutions

by John McClaughry

“Our state and federal constitutions protect our rights and liberties and a republican form of government – but they are continually endangered by judicial usurpation and judicial acquiescence in novel enlargements of government power.”

The United States Constitution, adopted this week in 1787, was rightly described by Prime Minister Gladstone (1887) as “the most remarkable work… to have been produced by the human intellect at a single stroke… in its application to political affairs.”

Our written Constitution is the rulebook for the ordering of political society. It defines the purposes for which it was written, the frame of government, the method of election of the President and Congress, and the powers bestowed by “we, the people” upon the Congress, the Executive, and the Judiciary. The Bill of Rights, added in 1791, has become a great charter of individual liberty for Americans.

A key principle is that once adopted, the Constitution shall be amended only by a prescribed process – never by “usurpation”. As President Washington said in his Farewell Address, “If in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates; but let there be no change by usurpation… it is the customary weapon by which free governments are destroyed.”

After adoption of the Bill of Rights, two more amendments were approved in 1804, dealing with court jurisdiction and election of the president. From then until the Civil War, the Constitution remained intact.  Since 1866 the U. S. Constitution has been amended fifteen more times.

The first threat to the Constitution today comes from judicial usurpation – the growing tendency of judges to fashion enforceable constitutional rights from thin air. This too often happens both at the Federal and the state levels.

In Vermont, there are two recent, flagrant examples of judicial usurpation. One was the sudden discovery by the Supreme Court, in 1996, that the Vermont Constitution required that public education be financed from substantially equal revenue bases.

For over two hundred years no one had ever suspected such a requirement lurked in the Vermont constitution. The justices, without even a trial, instructed the legislature to come up with a new school financing scheme (Act 60) based only on the perceived (by the justices) need for a progressive school finance law that no legislature was, up to that point, willing to vote for.

The other recent  judicial usurpation in Vermont  was the Supreme Court’s discovery in 2000 that the constitution prescribed that same sex couples were entitled to marry, or at least enjoy “all or most” of the privileges of marriage (civil unions). In doing so, the Court stripped from the elected legislature the power to make the laws, and instead mandated that the laws be made to satisfy the liberal social theories of the justices. (In 2010 the legislature lawfully enacted same-sex marriage.)

A future opportunity for usurpation might well come with a lawsuit based on the theory that, as declared by Gov. Shumlin and the Vermont Worker’s Center, “health care is a human right”. So far the legislature has stopped short of labeling health care as anything more than a “public good”.

That suit will presumably be filed when Gov. Shumlin’s Green Mountain Care Board denies expensive care to a very sick Vermonter, on the grounds that even hundreds of millions of new tax dollars simply won’t be enough to pay for all the care everybody wants (plus the salaries of all the bureaucrats administering the system), and the Board reasonably relegated the plaintiff to the “do not treat” category.

The U. S. Constitution is one of limited and specified powers. Another continuing threat comes from courts agreeing that Congress can constitution ally do most anything it wants unless explicitly prohibited (like quartering troops in private homes without permission – the Third Amendment.)

This trend was stalled, perhaps only briefly, when a 5-4 majority of the Supreme Court held in June that the power of Congress to regulate interstate commerce does not extend to requiring people to enter interstate commerce and purchase a government-approved insurance policy, under the pains of suffering an IRS-enforced penalty. (A different 5-4 majority in the same case held, however, that the Federal government can impose a special tax on a person for not having a government-approved insurance policy.)

For those who love and revere a free society governed by constitutions of the people’s own making, the never-ending task is to discipline judges’ intent on replacing the requirements of constitutions with their own social and political theories and expansive concepts of “rights”.  An associated task is to replace legislators, presidents and governors who think they can inflict any legislation they choose on the American people, without regard to the constitutions that limit their powers.

Unless citizens persist in protecting the constitutions, and demanding their observance from presidents and governors, legislators and judges, the day will come when usurpation will have made them irrelevant, and we shall have ceased to be a constitutional republic of free men and women.

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The Ethan Allen Institute is Vermont’s free-market public policy research and education organization. Founded in 1993, we are one of fifty-plus similar but independent state-level, public policy organizations around the country which exchange ideas and information through the State Policy Network.

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