I am not a lawyer. I don’t even play one on television. Nevertheless, I am steadfast in my belief that one should not need a law degree to understand our individual rights and protections as guaranteed by the Constitution. Yet for the past few months here we sat, bait upon our breath, waiting for yet another edict from On High validating or rejecting yet another expansive power grab by the federal government. How has it come to this? Two hundred and ten years since Marbury v. Madison and We the People still don’t know “what the Law is”???
Of course the law can never be complete. There will always be new cases with new circumstances, completing rights to be weighed and prioritized. But the Law, the Lex Suprema, the Constitution which was meant to be the bedrock foundation of all law, should long ago have been so established in its meaning and application that every citizen could predict with near certainty the outcome of any case resting upon the mere constitutionality of a statute. The Brits have their Magna Carta, a rambling, incohesive collection of banalities. We, on the other hand, have a Constitution, a binding contract between the States and the Union whereby the former surrendered specific, enumerated portions of their Sovereignty in exchange for the protections extended by the latter. It is written in plain English; and even if the meaning of some of the words have changed over the years, the Founders left us a wealth of exposition that we might understand the meaning they ascribed to the terms. After all, it was that meaning upon which they voted to ratify.
Which brings us to the subject at hand. In ARIZONA ET AL. v. UNITED STATES, the Supreme Court determined that certain provisions of an Arizona anti-illegal immigration law ran a foul of the Supremacy Clause of the Constitution. In Justice Scalia’s brilliant dissent we find this gem,
Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?
which I have affectionately dubbed Nino’s Razor. Here then is a Rosseta Stone, by which the average citizen can judge the legitimacy not just of this particular ruling but all such rulings. In the case at hand, remembering that the primary contention of the anti-Federalists opposed to ratification was that the Constitution ceded too much power to the federal government, Scalia’s question becomes clearly rhetorical. Hamilton stood alone at the convention; his proposal for a more powerful federal government failed to attract even a single vote, yet somehow here we are, with a national government so expansive in size and scope that even Hamilton would surely blush at his shortsightedness.
We can apply this principle to this week’s other landmark ruling on the so called Affordable Care Act. If the ratifiers had thought that the General Welfare Clause granted Congress an unfettered right to tax and spend on anything deemed to be “for the general welfare” does anyone seriously believe they would have voted for ratification? They had just fought and won a bloody war to reject that very notion. Nino’s Razor works for amendments as well. Fast forward to July of 1868. How would the vote for adoption of the 14th Amendment gone had it been known at the time that hidden within its clear language lay a snare that would later be used to establish a right to practice sodomy (Lawrence v. Texas) or same-sex marriage?
Regardless of where one stands on these issues, we should all stand firm for the notion that our Constitution cannot be changed by extra-constitutional means. If We the People need to change the Constitution, the Founders provided the means to do so. But among those means one will not find a provision whereby the Court can simply redefine the terms. The Supreme Court’s task is to say what the Law is, not what they think it ought to be.