The Tree Surgeon's Amendment

Shortly after I blogged on Supreme Court quotas, I received an email from Karl Spence, a San Antonio, Texas-based journalist concerning an effort to pass something called the "Fair Construction Amendment" as a remedy to liberal judicial activism.

While I appreciate the email and the concern shown for our country by Mr. Spence, I have to disagree with him that this is a good idea. Before I explain why, I'll quote the full text of the amendment as it appears at the last link above.

Section 1: The Judiciary of the United States shall not presume to exercise nonjudicial power.

The sense in which this Constitution was accepted and ratified by the nation shall be the guide in expounding it. Its provisions are neither to be restricted into insignificance nor extended beyond the natural and obvious meaning contemplated by the plain understanding of the people at the time of its adoption. Any faults it may contain are to be corrected by amendment as prescribed in Article V, not by usurpation.

Disregard of these principles is cause for impeachment.

Section 2: No one in the United States shall be either subject to or entitled to discrimination in education, employment, housing, or public accommodations on account of race.

The Congress shall have power to enforce this section by appropriate legislation.

Section 3: The provisions of this Constitution’s first article of amendment shall apply to the states as well as to the United States; but in every other respect, they shall be expounded according to the rules set forth in Section 1 of this article.

Section 4: So that the perpetrators of violent crimes may meet with swift and certain retribution, the courts’ effort to protect them in their rights shall not be perverted into permitting any mere technicality to avert or delay their punishment. Rules governing law enforcement shall be so designed as to protect the individual without imposing a disproportionate loss of protection on society.

Section 5: The Congress shall have power to …

This all appears as a sidebar with explanatory notes to its right. Concerning the elipses at the end of this amendment (which at 247 words would already be one of the longer constitutional amendments), the explanatory notes add:

The additional sections are needed to ratify those changes the courts made for us that we should have made for ourselves (e.g., the overthrow of Jim Crow segregation), and -- if the amendment is to have a chance of success -- to give proper constitutional authority to a great deal of what the federal government is now doing (Social Security, Medicare, the Federal Reserve, national parks, disaster relief, etc., etc., etc.). Section 5 addresses that latter challenge. Left open-ended here, it would need to be drafted in such a way as to fill out the powers of Congress to meet the demands of the modern era, but without destroying all limits on federal powers.

For starters, I'm more of an "abolish Social Security altogether" kinda guy than a "write Social Security into the Constitution" kinda guy. But that's not even the main point here....

Let's set aside the fact that violation of one's property rights -- for the sake of funding someone else's retirement in the case of Social Security -- would be written into the document which is supposed to protect those very rights. Let's even set aside the fact that this amendment might have to be quite long to take care of all those "et ceteras" that the Feds are already doing (even though they should not, in many cases).

These problems, nothing to take lightly in and of themselves, are merely symptoms of the fundamental incorrect premise of this proposed amendment, namely that it is even possible to know in adavnce that a law can be unambiguously applied to all future contingencies. I doubt, for example, that anyone during the founding remotely imagined the internet, but I am sure they would include it as part of freedom of speech, to take a simple example of applying an old law to new concretes.

Case of possible ambiguity in point: the entire Constitution. To narrow things down a bit, let's simply consider Section 1 of the the amendment given above. Who has the final say on what "the natural and obvious meaning contemplated by the plain understanding of the people at the time of ... adoption" of the Constitution is, anyway? "Natural and obvious"? To whom? The courts -- or Congress -- to whom this amendment hands an excuse for exercising its power of impeachment?

And what if Congress is full of liberals who accept some faddish interpretation of what the Founding Fathers -- all dead (and thus, conveniently, silent) last I checked -- meant when the Constitution was written? Did I miss the section about contacting the Founding Fathers with a Ouija Board? This amendment would merely give a different branch of the government the responsibility of resolving any disputes about what the Constitution has to say -- and make that branch able to goof things up. Note that in addition to subordinating the judiciary to Congress, we have failed to achieve one jot of safety from corrupt men who would misread our Constitution. More on that later.

There can be honest disputes about the meaning of any given law, and of its applicability to any given situation. That's a big part of what the courts are for and exactly why they must be difficult to sway by Congress. The solution to leftist judicial activism is to appoint better judges and yes, in clear-cut cases, impeach certain judges. Stay tuned for what criteria should be used. But to dump everything into the Constitution and then demand that the judges not usurp their role is will not solve the fundamental problem, which is this: At some point, human beings will have to apply the Constitution to novel situations, and human beings are fallible.

Incidentally, this is why another bad precedent would be set by such an amendment: The incorporation of so many laws, many of which violate the purpose of our government by abrogating individual rights, into the Constitution is apparently another attempt to escape from the dilemma posed by past failures of the Supreme Court (e.g., not ruling that social security is unconstitutional in the first place) by demanding that everything be written into the Constitution. (And if not everything, what? Things that contradict the Constitution? Who decides that? The Supreme Court? What if Congress simply impeaches them all and tries again?) To have to add every new law to the Constitution would clearly either hamstring our government and then probably cause many to want an easier way to amend it. Not good. We made it hard to amend the fundamental law of our land for a reason. And the Constitution is painted with broad strokes for a reason, too. At least we had a shot at having social security declared unconstitutional. Actually, we still do.

This amendment does nothing but lop off one of the three branches of the government, the judicial branch, and simply graft it back onto the legislative. It would weaken our system of checks and balances and then, after doing so, leave us open to the whims of a bunch of "legislative activists" who would see to it that the courts rubber stamp whatever they want.

All this brings Tara Smith's outstanding article in defense of pro-individual rights judicial activism to mind, particularly the following two paragraphs.

The charge of "judicial activism" typically condemns proper activity on the part of judges along with improper activity. It has become dangerously commonplace to equate a judge's support for overturning a law with pernicious activism. Prevailing wisdom holds that we can identify "activists" simply by counting up the number of times a judge rules against existing laws or government practices. Notice that by that logic, the only way for a judge to avoid overstepping his authority is to engage in no activity--to simply rubberstamp whatever the legislature and other agencies of government serve up. What, by this reasoning, is the point of having a Supreme Court? Some laws should be struck down. Because the United States is a constitutional republic, we are all bound--private citizens and government alike--to abide by the Constitution. It is precisely the role of the judiciary to strike down laws and prohibit government actions that fail to do so. Judges who so rule are acting responsibly and fulfilling their function.

Laws are necessarily written in broad terms, designed to govern an array of cases that are similar in principle but different in particulars. Judicial rulings are needed when the proper application of those laws, in a specific case, is not transparent. The logical application of a Constitutional provision to novel circumstances is not, therefore, a case of creating new rules ex nihilo. Rather, it is exactly what we need judges to often do. While Article I, for instance, provides for the common defense and the specific maintenance of an army and navy, courts have not been activist dictators by also allowing an air force. While the First Amendment protects freedom of "speech" and of "the press," courts have not brazenly "legislated" by treating written letters as also protected.

The law is an invention of man and as such, it must be actively enforced, and laws must be actively applied to new situations not necessarily imagined when they were written. Both of these activities require human beings to apply the conceptual framework of a given la law to the concrete situation at hand.

The Fair Construction Amendment is, in my estimation, an attempt to circumvent the necessity of human beings thinking about the law in conceptual terms. But this task is inescapable and this particular attempt to avoid it will lead to any of a number of disastrous consequences, including (1) a compromise of our system of checks and balances due to the loss of our independent judiciary, (2) a lengthy, self-contradictory Constitution that fails to protect individual rights, and (3) a nation of (Congress)men and not laws, the exact opposite of the goal of our Founding Fathers, who risked their lives to throw off the yoke of tyranny.

The integrity of our law depends on a quality judiciary, but until better, pro-freedom ideas are accepted much more broadly by the public than they are now, we will continue electing officials incapable of choosing good judges. The problem lies ultimately with us, the people. We can escape the need to have better judges apply judicial principles to questions of law no more than we can legislate away the need to earn a living. That's part of what "a republic, if you can keep it" means. Government fiat (even in the form of a constitutional amendment) cannot substitute for whatever mental effort it is meant to replace.

Lousy judges are not the problem. They are only a symptom.

-- CAV