JUDGES:  PARTS OF THE CONSTITUTION MAY BE UNCONSTITUTIONAL

Don A. Bright

Months ago our county government (Washington County, AR) attempted to pass an under the radar series of zoning ordinances that would have destroyed the private property rights of all the rural residents of the county.

During a rather heated debate between our county attorney and me, the subject matter boiled down to our Constitution versus what “the courts have allowed”.  When I asked if the zoning and subsequent takings were constitutional I kept hearing that “the courts have allowed it” mantra over and over.  Angered, I persisted and finally demanded an answer to the following question:  Can a judge amend the Constitution?  It took some stubborn resolve on my part, but I refused to accept any answer other than a yes or no.  I finally forced the answer from the county attorney.  He had to give the only correct answer and it was loud and frustrated “NO!”.

(The story of this grand but sneaky attack on our property rights is a fascinating one.  We were able to stop it through a lot of public pressure we stirred up through our radio program and our “secret” weapon.  We actually sent a cease and desist order based on their attempting to violate our constitutional rights.  It worked.  I am devoting my next column on this saga and hope to finish it soon.)

My subject of this column, however, is in reference to the above question.  Can judges amend the Constitution?

"The Constitution which at any time exists, 'till changed by an explicit and authentic act of the whole People is sacredly obligatory upon all." --George Washington

I wonder how the average judge would respond if asked whether Washington’s charge to the judiciary is still valid.  I think it would be another episode like I had with our county attorney.  A “yes” answer would come only after repeated and heated charges through a bunch of obfuscation.

We have all been aware for some time that our government has danced at, around and on our Constitution for decades…nay, centuries.  But who among the players in this theater-in-the-round are the puppeteers and who are the puppets?  I have decisively come to the conclusion that we all are the puppets and our judiciary houses the puppeteers.

Can our country survive the “the courts have allowed it” paradigm we find ourselves in?  An obvious and irrevocable “no” answers that question.  And the real problem here is what we nidderingly accept as valid rule; “precedent”.

A recent caller to the radio program I co-host was bothered by this “precedent” business.  I agreed with him and in the course of our conversation I gave him my definition of precedent:  Precedent is nothing more than the codification of the last mistake some judge has made.

During the recent battles over George Bush’s Supreme Court nominees, much ado was made about “stare decisis” (Latin: “let the decision stand”), and the nominees’ consideration of its significance.

Let it be noticed that those who resorted to making a strict reliance on precedent were from the left.  And their reason for doing so is not hard to understand.  Those on the left do not like rigidity in terms of any limits on governance.  Concomitantly, they wish the Constitution would go away.  How to do this?  By “precedent”… or more accurately by judicial fiat.

Listen to Chief Justice John Marshall in his classic statement re the Marbury v. Madison decision (1803):

“The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it....It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

It is easily understood, then, that in the political realm court decisions are to be the interpretation of and the constitutionality of acts by the other two branches.  Nowhere can I find the granting of power – by the people – to the judiciary to judge the constitutionality of the Constitution itself.  And yet that is what is being done on a regular basis by our new elitists of the bench.  How?  By precedence, of course.  Precedence, then becomes a new constitution…a constitution not of the people but of the judiciary branch of our government.

As I stated above: Precedent is nothing more than the codification of the last mistake some judge has made.  Putting it more bluntly, using “precedence” in favor of constitutionality in a republic is just plain stupid.  Dangerously stupid.