The Constitution is plainly written. It was intended to be easy to understand. The Constitution is also short. Why do we need a process for interpreting what the Constitution means? If we have such a process for divining the meaning of the Constitution, why should that process be secret deliberations of nine judges who are effectively unaccountable to the people? The issue, after Obamacare, has become more than academic. Idaho has passed a resolution of nullification, which removes from the federal bench ultimate power to reject congressional actions as unconstitutional. The Idaho Attorney General Lawrence Wasden advises that nullification is unconstitutional, but he has no power to prevent the Idaho Legislature from passing its resolution.
What happens if a number of states pass similar resolutions? What if these states simply refuse to cooperate with the federal government in enforcing such a requirement or even use state police power to openly defy federal enforcement? Is nullification constitutional? The problem with federal judicial usurpation of the right to interpret the Constitution is that no one really knows what is “constitutional” and what is not. If the Supreme Court upheld a congressional statute outlawing the practice of Zoroastrianism in America then the Supreme Court would have violated the Constitution. But these justices could not even be impeached for that action because they would have just declared that the Constitution allowed Congress to do what it did.
The Founding Fathers understood that the Constitution needed to be changed, from time to time, and that it needed to be clarified as well. So within the Constitution is Article V, which prescribes just how to change the Constitution. Nowadays, this way of changing the Constitution is simply ignored. Instead, federal courts “interpret” the old language of the Constitution instead of legislators either changing that language to allow the Constitution to “grow” or to clarify what the original language meant. Now, even if the Constitution is amended, federal judges will interpret what that amendment means.
While state nullification is one approach to resisting an imperial judiciary – an approach that could lead to a hodge-podge of states’ interpretation of what the Constitution allowed and what it did not – there are other avenues which we should consider. As an initial premise, we might accept some of the early arguments against a super-Supreme Court: every constitutional officer – the president and vice president, the members of Congress, and federal judges take an oath to defend the Constitution – this places the duty upon each to adhere to those powers recited in the Constitution. It also implies an understanding of those limits. The oath is self-executing. It is for federal judges, and it should be for other federal officers.
What would that mean? When Congress passes a law, it is constitutional. This approach sounds scary but it is not. When Congress passed the blatantly unconstitutional Alien and Sedition Acts, no federal judges leapt to the defense of the First Amendment. The legislatures of Kentucky and Virginia determined the laws were unconstitutional, but even more importantly, the voters of America determined the laws were unconstitutional: the Federalist Party was crushed in the next election and died an ignoble political death. Americans had no choice but to vote out of Congress members who treated the Constitution so cavalierly. If courts said nothing about the constitutionality of federal laws, then voters would have to champion the Constitution themselves.
The Constitution would stop being the mysterious runes of judges and lawyers and become the documentary statement of our liberties defended only by the governed: the people. This would not preclude state legislatures from doing what Idaho has done and what Kentucky and Virginia did in 1798. When campaign finance laws were passed by Congress, state legislatures could have passed resolutions declaring that this was unconstitutional. The legislatures could do more and censure any members of Congress from the state who voted to violate the Constitution.
If this became a convention, if state legislatures were expected to explicitly state an opinion on federal laws or other federal actions which were unconstitutional, then the remedy – defeat of candidates for federal office who violated the Constitution – would be a much more potent tool for safeguarding our rights. Does this still sound scary? Then remember this: once we had no Bill of Rights; once we had no Constitution; once we had no national government at all. Yet we still had those liberties we cherish. Indeed, the Revolutionary War was less to create new liberties than to preserve what Americans believed were existing liberties. Freedom is never protected by judges, and seldom protected by politicians. It lives, or it dies, with us. How should we interpret the Constitution of the United States ? How about this: we should interpret it as if the Constitution actually belonged to us.