In Defense of the Constitution, by George Carey
Most Americans are puzzled that their belief in limited government is not matched by government officials who persistently intrude into their daily lives. Also, their settled beliefs regarding what is right— what they are permitted to do— and what they must not do, are changed for them by functionaries in a distant Byzantine capital, far removed from the reality with which most Americans deal. For example, we are told that we may not open public activities with prayer, that a woman may kill her unborn child, and that we may not inquire about a person’s marital plans, sexual perversions, or high school grades when interviewing them as prospective employees. All of this occurs in a nation with a constitution that limits what the government may do. One may well ask if we have a limited government, why then does the government do whatever it pleases? George Carey, distinguished scholar and professor at Georgetown University, reveals for us— clearly and pointedly—how we have reached this sorry state.
His book, In Defense of the Constitution, is of signal importance in explaining what has happened to the American Republic, and it “sets straight” what the intentions of the founders were regarding the nature of the republic. Carey’s book is at odds with the prevailing orthodoxy in American academic and professional communities regarding American constitutional government. This, of course, is what commends it so highly.
Many of the mischievous views regarding the role of the Supreme Court of the United States, the doctrine of separation of powers, and the nature of the federal union, stem from misreadings of the Constitution by “revisionists” such as Parrington, Beard, Croley, and others. Carey reveals the inadequacy of their scholarship, their imposition of preconceived doctrinal positions in their textual analysis, and their mis-statement of the founders’ views. By exposing these writers, whose views dominate modern academia and the minds of federal judges, Carey exposes their distortion of the constitution. These “revisionists” argue that the constitution may be used to rationalize every act of government. They allege that since there is no coherence in the views of the founders regarding the republic they formed, the Constitution may be interpreted in whatever manner one wishes. Carey’s careful examination of Madison’s and Hamilton’s ideas about the nature of the extended republic, the nature of the federal union, the role of the separation of powers, and the constitutional role of the supreme court, demonstrates clearly that the revisionists’ conclusions are insupportable.
For instance, Carey demonstrates the falsity of the claim that Hamilton favored an oligarchical form of government while Madison favored a republic. Those who maintain otherwise distort the words of these two men and evidence a studied refusal to understand what they actually said. Both Madison and Hamilton accepted the value of an extended republic, and they believed it could survive only if the national government was powerful enough to prevent centrifugal forces from tearing it asunder. Due to this fact, neither believed in a totally centralized, national government. Instead, the national government’s power would be conditioned by the particular circumstance at hand and would require ad hoc responses to particular issues at particular times.
In examining the causes for this and other departures from the Constitution, Carey points to the effects that the philosophy of “secular, scientific humanism” has had on our culture, our government, and our understanding of the constitution. This philosophy has its roots in natural rights doctrines spawned by the “enlightenment.” Accordingly, each man is gifted with “individual rights” that precede the existence of both society and government, which are products of the reason and will of those who create them. Each man is considered a “moral universe” unto himself, and no corporate claims may legitimately be made upon him without his agreement. The created state is not bound by any transcendent standard or objective. Its functions and the legitimacy of its acts are thus self determined, and the state may exercise its power as it wishes. It becomes the embodiment of all the aspirations, values, and purposes of individuals—including their very rights to life. This current religious myth of the state, Carey demonstrates, is buttressed by a notion of “scientism” that assumes that the “proper” distribution of goods and services of the society can be decided by those who can act with accuracy and neutrality. This idea is merely an updated version of the ludicrous “felicific calculus” of simplistic utilitarian thought. Such reactionary doctrine is standard fare among many academics, media “personalities,” and national political leaders.
One of the direst consequences of this reactionary thought is reflected in the “myth” that the court is objective and neutral, and that it is not entrapped in the sullied political process. Therefore, the court is best equipped to determine the proper distribution of the goods of society, and to extend or restrict human activity. We are to be the beneficiaries of this wisdom of the court, which is the only institution of national government that can, with a straight face, create and justify discovered rights as “emanating from an penumbra!” The court has further denominated itself as the “final arbiter” of the Constitution.
Carey observes that the most basic organic document that reveals the founders’ ideas of what the court was created to do is Federalist 78. This paper clearly shows that they believed that the court was a necessary element in the constitutional scheme, for the very logic of the separation of powers required it. The founders understood that all government is potentially dangerous to the liberty and well- being of its citizens. This danger is magnified under any arrangement where the legislative, judicial, and executive powers are concentrated in one branch. The separation of powers was designed to prevent this from occurring. As Carey notes: “[The] separation of powers [is] in many respects the most important of the constitutional principles…” (p. 51).
There is, however, widespread confusion—among liberals and conservatives— regarding the purpose of this principle. It is widely believed that the principle is designed to protect minorities from majoritarian rule. This view is completely contrary to that of the founders’. The only real danger to republican government lay in the legislature being tempted to abandon the limits on its powers. The separation of powers would serve to limit such attempts by the legislature. The respective branches would have the power to act and the personal motive to do so.
Obviously, the legislature could not be left free to self-define the constitutionality of its acts. What then was the role of the court in preventing this? First of all, as Carey points out, the court, in assessing legislative acts, was to exercise judgment and not will. Carey clearly explains here that these are not ambiguous terms. Will, he says, “connotes at least a choice among alternatives or goals with the concomitant capacity to achieve, implement, or move toward the attainment of the choice” (p.131). This is clearly distinguishable from the passive quality of judgment, which is used to determine whether the choice effected by the will exceeds the limits of the legislature’s powers. This passive role was to be played by the court, which was not to determine the desirability of the choice made by the legislature. Rather, it could reject such legislation, on only two grounds: (1) did the act violate the “manifest tenor” of the constitution; or (2) did it contain provisions irreconcilably at variance with the constitution. The court was to act within these narrow confines, and was to be “bound by strict rules and precedent” (p. 133).
These prescriptions do not control the power exercised by the court today. Instead, today’s court engages in wholesale rewriting of legislation passed by the people’s duly elected representatives at both national and state levels. Such regulation is based solely on the displeasure the court feels about the policy adopted—not whether the policy violates the manifest tenor of the constitution and contains provisions that are irreconcilably at variance with the language of the Constitution. This unconstitutional behavior of the court is particularly egregious given the fact that it operates in an adytum far removed from the practical affairs of the citizens whose lives it affects. The court does not have the benefit of the “give and take” of opinion and information that is central to the legislative process. Carey also notes that the law schools from which the members of the court are graduates do not provide them with the breadth of information or experience needed to make prudent and intelligent decisions.
The court feels free to exercise its will in place of judgment, and acknowledges no constitutional limit on its power. It imposes its often particularized, narrow, and ill-informed policy choices on the entire nation. It has, in effect, replaced the political processes of the republic in many instances.
Nowhere is this seizure of power more evident, Carey explains, than in the court’s Roe v. Wade decision. It is in response to this decision that Carey suggests the remedy that might be used to compel the court to return to its constitutional role. He rejects both the idea that the correction should be by constitutional amendment and the idea that the court should return the decision to the states. Carey’s objection lies in the fact that to do either is to approve the court’s unconstitutional behavior. Such actions would indicate that the court is empowered to do what it has done. Rather, Carey says the Congress of the United States should enact legislation that would end the “national right” to abortion “on demand.” Such an act would leave the court with only two alternatives: (1) it could accept Congress’ decision and abandon its self-styled supremacy, or (2) it could declare the act unconstitutional and reaffirm its “right” to be the sole interpreter of the Constitution. In the first case, the congress would have effectively stripped the court of its pretentious claims to supremacy, and in the second case should not hide from the threat of impeachment of those justices who insist on extending their powers beyond that permitted by the constitution itself. Were, for example, the congress, under its specified powers in the Fourteenth Amendment, to pass legislation defining the fetus as a person entitled to the full protection of the law, the court would be put on notice that it would either have to admit to legislative supremacy in this case, or risk taking the congress on in a battle which it could not hope to win. In addition, such an action by congress would revive the discussion regarding the appropriate role of the federal judiciary under our constitution; a discussion that unfortunately has not been held for years, but one that is desperately needed. In either case, Carey notes, the actions would help move the United States back to its constitutional anchor, by compelling the court to recognize the fact that its members, like all government functionaries, are to operate under the constitution and not above it, and that there are sanctions to which it is subject if it chooses to abandon constitutional limits on its powers.
It does not seem to this reader, however, that Carey gives sufficient attention to the possibility that the national government approves of this judicial misconduct. The mutuality of interest of all national governmental functionaries in seeking a strong, centralized, and uncontrolled national government, induces each of the three branches of government to tolerate the excesses of the other. Not only does the congress indulge the court in its endless spinning out of vacuous theories of rights, but the court also indulges the congress in its movement to control every facet of American lives by continually pouring out legislation that is presumably based on Interstate Commerce powers; by remaining unwilling to check the excesses and patent abuses of administrative behavior; and exempting itself from obeying the laws it passes for others.
The supposed contest between the branches may be considered only a ritual that never results in the checking of what all of them seek, i.e., national government that can operate above the Constitution. Other methods that might possibly be used to counter the abuses of national governmental power—ones that Carey does not examine fully—are those of interposition and nullification by the states. Most assuredly these are severe remedies, fraught with danger, but ones that the founders understood might need to be employed. One may legitimately ask, however, whether their potential dangers are more troubling than the continued abuse of the constitution by the court and the other branches of the national government.
These minor oversights do not detract from the great merit of Carey’s book. The book is recommended enthusiastically and unqualifiedly to a broad reading audience, which should include anyone associated with the legal and political systems of the nation. Carey’s excellent scholarship and carefully reasoned argument are not the only qualities that commend it. Even more important is the sharp insight it provides into America’s profound political and social crisis.