Diary

A President without constitutional constraints—How liberating would that be!

Ruth Bader Ginsburg caused an uproar by telling the world what she thinks. She blabbed about Donald Trump, the Senate’s stalling on Garland, other justices, Scalia’s convenient death, and decisions she wants overturned. Justice Ginsburg verbalized her progressive proclivities, and the left went ballistic because she had let the cat out of the bag.

Yeah, like this was the first time.

Few paid attention four years ago when she told Egyptians on their national television that, “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.” She also counseled that Egyptians “should certainly be aided by all the constitution-writing that has gone on since the end of World War II.”

In 2005, she made a speech to the American Society of International Law, saying, “The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a certain kinship to the view that the U.S. Constitution is a document essentially frozen in time as of the date of its ratification.”

When inducted onto the Supreme Court, Ginsburg solemnly swore “that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion.”

Ginsburg comments may have been “ill advised,” but they were more truthful than her oath of office. Elected and appointed officials in the legislative, executive, and judicial branches all take an oath to defend the Constitution. Out here in the hinterlands, we think the ceremony is supposed to be meaningful, but power-seeking politicians view it as a humdrum ritual they go through before being shown to their shiny, new office. Once settled behind their desk, some of these politicians hastily discard their oath of office, but many more just fail to challenge wrongdoers who twist and stretch the Constitution to fit their personal agenda.

The Constitution is the foundation of our nation. It was meant it to be “the supreme law of the land.” Instead of being supreme, the Constitution has become the only malleable law on the books. The Constitution is the rudder of the ship of state, but it has now been debased to the point where it is little more than ink on parchment. Afloat without it, we are ruled by man, not law. No matter who wins in November, we no longer have a firewall to protect us from the whims of man … or, as the case might be, a woman.

Hyperbole? Here’s a simple test on whether we are a nation of laws or men. If judges ruled on law, it would make no difference who appointed judges … or who confirmed them for that matter. Any qualified jurist would do. If law had constancy, it wouldn’t matter who sat in judgment? Except that everyone understands who sits on the Supreme Court matters, and matters enormously. In practice, these allegedly impartial justices search for words or creative readings of the text that justifies their preferred outcome. It’s an exercise in rationalization, not a search for legal precedent. The Constitution no longer provides a firm foundation for our laws.  Sitting high above the supplicants, nine robe-clad people determine what laws mean, and they regularly mean whatever conforms to each individual justice’s political beliefs.

This is not another lament that our politicians no longer honor their pledge to preserve, protect and defend the Constitution of the United States.  That would be foolish … and backward.  The Constitution was not written for politicians.  Our political leaders have no motivation to abide by a two hundred year old restraining order.  Americans must enforce the supreme law of the land.  The first outsized words of the Constitution read “We the People.”  It’s our document. It was always meant to be ours, not the government’s.  It is each and every American’s obligation to preserve, protect, and defend the Constitution of the United States.

We need to get busy.

 

James D. Best is the author of numerous books, including Tempest at Dawn, a novel about the Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic.