In my letter published in the Oct. 18, 2002 Bar News, to which Elizabeth Cazden in the Dec. 13 issue took offense, I mentioned how, in the war against judicial megalomania, nothing that should go without saying any longer can. In reply to Ms. Cazden's letter, I offer three more such things:

1. Greater respect is owed to the judicial decisions rendered nearest in time to enactment of the law concerned. In the case of constitutional adjudication, "contemporaries of the constitution have the greatest claim to our deference...because they had the best opportunities of informing themselves of the understanding of the framers of the constitution, and of the sense put upon it by the people when it was adopted by them," Ogden v. Saunders, 12 Wheat. (25 U.S.) 213, 270, 290 (1827). See also Stuart v. Laird, 1 Cranch (5 U.S.) 299, 309 (1803).

Of the nine judges of the U.S. Supreme Court that ruled in 1873 in Bradwell v. Illinois, 16 Wall. (83 U.S.) 130, that the Fourteenth Amendment did not guarantee women the right to vote, and which had ruled a day earlier in The Slaughterhouse Cases, 16 Wall. (83 U.S.) 36, 81 that "We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision [the equal protection clause]," five had been appointed by President Lincoln and three by President Grant. It is reasonable to assume that they knew more about the purposes and scope of the Fourteenth Amendment than the members of the Warren and Burger Courts of a century later.

2. The first and most ancient rule of statutory construction is that a law is to be construed so as to give effect to the intent, meaning and understanding of those who voted for its enactment. Magdelen College Case, 77 Eng. Rep. 1245 (1615); Hewit v. Painter, 80 Eng. Rep. 864 (1611); 2 Blackstone, Commentaries on the Law of England 379 (1765). "Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the law making power will prevail even against the letter of the statute," Hawaii v. Mankichi, 190 U.S. 197, 212 (1903). See also Church of The Holy Trinity v. United States, 143 U.S. 457, 472 (1891); American Security Company v. District of Columbia, 224 U.S. 491, 495 (1912).

A reading of the debates on the proposed Fourteenth Amendment in the 39^th Congress in 1866 shows plainly that it was formed for the limited purpose of securing and protecting the basic civil rights of the newly freed slaves, and, consequently, that it was not intended to alter the legal status of women nor to expand the scope of the liberties of the general population. See, in particular, Cong. Globe, 39^th Congress, 1^st Session, S. 2767 (1866). It also makes plain, contrary to the beliefs or feigned beliefs, of later Supreme Courts, that to the framers of the Fourteenth Amendment, the terms "privileges and immunities," "equal protection of the laws," and "due process of law" had specific context and meaning. The transformation of these terms into a state of "convenient vagueness" (e.g., the "majestic generalities" of the Fourteenth Amendment, Katzenbach v. Morgan, 384 U.S. 641, 649 (1966)), has been the Court's doing, originating in the late nineteenth century to shield the free enterprise system from regulation, and its general acceptance today is a tribute to the power of ceaseless repetition. Justice Samuel Miller's opinions for the Supreme Court in Bradwell v. Illinois and The Slaughterhouse Cases (both supra.), as well as Chief Justice Waite's opinions for the Court in the later cases of Minor v. Happersett, 21 Wall. (88 U.S.) 162 (1875) and United States v. Cruikshank, 92 U.S. 542 (1876), very properly relied on the Amendment's legislative history in reaching its decisions, to which scholarship the opinions of the Warren and Burger Courts in Fourteenth Amendment adjudication, of which Reed v. Reed, 404 U.S. 71 (1971) is only one example, stand in sorry contrast.

3. No court has the authority to revise the Constitution to keep it "in tune with the times." If, wrote Madison, "the sense in which the Constitution was accepted and ratified by the nation...be not the guide in expounding it, there can be no security...for a faithful exercise of its powers," 9 Madison, Writings, 191 (G. Hunt ed., 1900-1910). The province of a court is to determine what the law is, not to declare what it ought to be," Luther v. Borden, 7 How. (48 U.S.) 1, 41 (1849). Construction "must necessarily depend on the words of the Constitution, the meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions...in the several states..., to which this court has always resorted in construing the Constitution," Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 721 (1838). "The Constitution is certain and fixed; it contains the permanent will of the people," Van Horne's Lessee v. Dorrance, 2 Dall. (2 U.S.) 303, 308 (1795). "To what purpose are powers limited...if those limits may at any time be passed by those intended to be restrained," Marbury v. Madison, 1 Cranch (5 U.S.) 137, 176 (1803).

No activist has ever cited constitutional authorization for judicial revision of the Constitution. Even the Warren Court disclaimed such a power: "Nothing new can be put into the Constitution except through the amendment process. Nothing old can be taken out without the same process." Ullman v. United States, 350 U.S. 422, 428 (1956). Such revision undoubtedly occurs, but let us have the intellectual honesty to reject the self-empowering rhetorical tricks the Supreme Court has used to accomplish it; let us recognize it for the authoritarian usurpation it is and not connive in clothing it even with respectability, much less legality. Judges, noted Learned Hand, "wrap up their veto in a protective veil of adjectives such as 'arbitrary,' 'reasonable,' 'inherently,' 'fundamental,' or 'essential', whose office usually is to disguise what they are doing and impute to it a derivation far more impressive than their personal preferences, which are all that in fact lie behind their decision." L. Hand, "The Bill of Rights," 70 (1962).

Those who assert that the Constitution is not "static" beg the questions of how it changes, who changes it, and by what right. For the U.S. Supreme Court, in the face both of the express language of Article 1, Section 1 of the Constitution and of the legislative history and historical context of the Fourteenth Amendment, to impose upon the states the political and sociological preferences of the ever-shifting majorities of its members on the subjects of speech, religion, taxation, crime and punishment, elections, education, gender, marriage, privacy, illegitimacy and welfare, is to invade the reserved powers of the states and subvert and trivialize the political process.

It is precisely because such current issues as same-gender marriage and family relationships involve complex legal, moral, religious and societal questions, that they are the province of the elected representatives of the people sitting in the legislatures, and not the appointed elite sitting on the courts. The United States of America is, after all, a republic. Unfortunately, even that can no longer go without saying.

Gregory M. Sorg
Franconia

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