TIA Daily • August 31, 2010
FEATURE ARTICLE
Editor's Note: Last week, in an article about the indifference toward the Constitution shown by a local Democratic congressman, I mentioned his blithe assertion that determining the constitutionality of ObamaCare is properly left to the courts. In response, I wrote that "it's appropriate to contrast this attitude to that of Thomas Jefferson, who rejected the idea that guarding the Constitution was a task to be outsourced to the courts. Instead, he held that each branch of government had the responsibility to enforce constitutional discipline on itself." That inspired Jack Wakeland to expand on this idea, in a message which is posted below.—RWT
Since the early 1990s, I've been hostile to the commonly-expressed view that the US Supreme Court is the sole, ultimate, and final authority on what is and isn't constitutional. The view that only the courts can say with authority what is in the Constitution is the view that the Constitution is merely another law—that it isn't a higher law, a basic law.
Judges must never be given exclusive control over the law. Every political institution needs to have their fingers in the law; especially the constitutional law. By every institution, I mean: the legislatures, the president and governors, their executive staff, juries, prosecutors, policemen, soldiers, judges, and voters. The people—either through the execution of their official duties as government officials, or as members of private organizations such as the press, election campaign groups, political advocacy groups, or as individuals through one-to-one discussions and the casting of one's own vote—the people are the judges of what is and isn't constitutional.
At election time there is no office that gives the voter a greater opportunity to vote his constitutional conscience than a vote for a legislator: a city councilman, a state representative, or a congressman.
Voters should give men seats in their legislatures and the authority to write the laws based primarily based on whether they have exercised sound and wise judgment on the issue the constitutional limits on government power. Of all of the offices of the government, the legislatures are the most powerful because they write the laws. Thus, the people must hold legislators to a higher standard of constitutional propriety than for any other public office.
A prerequisite for giving a man robes and a gavel and the authority to preside over trials and appeals is that he has consistently exercised sound and wise judgment on the issue of what is constitutional. But more is needed of a judge than of a legislator. A judge must hold individual justice as his highest standard and must hold that standard rationally. He must be the standard bearer of reason in the courtroom, who uses his powers to keep the arguments as close as possible to the core issues of evidence and the criteria of proof. He must be a master who uses the rules of proper courtroom procedure to assure that only reasonable arguments are admitted.
A pre-requisite for putting a man in the executive mansion of a state or in the White House is that he has exercised sound and wise judgment on the issue of what is constitutional. But more is required of him, much more. He must be a good and honest policeman always on the lookout for criminals at home and criminal governments abroad. He must be a detective who seeks the truth about who is guilty of a crime and what were his motives and a judge of human character who enters into agreements based on the nature of the participants. He must be a man who understands how to organize and move large-scale human efforts based on the specialization of trade to achieve specific purposes. He must be a soldier ready to fight for the innocent against a violent criminal or for his country against foreign invaders. And more: he must be a leader who draws men to him by his example of morally correct and effective practical action.
Each type of political office requires different levels of legitimacy and competency at protecting the constitutional order that protects individual rights. All offices require an adherence to and protection of the constitutional order. But it is only for the legislator, the writer of rules, that constitutionalism is the primary—very nearly the sole—criterion of his legitimacy.
Jack Wakeland is a Contributing Editor toThe Intellectual Activist and TIA Daily.
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