These books on the Constitution of the United States, listed by Robert Bork in today’s Opinion Journal, should be required reading for every American citizen. Our country will not be taken down by any outside enemy, but rather the “enemy within”, namely, the ignorance of Americans:
1. “The Federalist” by Alexander Hamilton, James Madison and John Jay.
Written to promote the ratification of the proposed Constitution, this series of New York newspaper essays in fact had little effect on the outcome. They are, nonetheless, invaluable evidence of what leading proponents expected to be the operation and benefits of the new government as well as statements of the principles of republican government. Madison’s essays, in particular, on the Union’s “tendency to break and control the violence of faction” while preserving liberty are classics of American political thought. Alas, the authors failed to anticipate the political power that a judiciary entrusted with the Constitution would seize.
2. “Commentaries on the Constitution of the United States” by Joseph Story (Hillard, Gray & Co., 1833).
Joseph Story, who produced this work while he was both a justice of the Supreme Court and a professor of law at Harvard, plainly lays out what the Constitution meant to the generation after the Founding. Story rejected the judicial activism advocated by some in his time: “A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill, or visionary speculation.” He offered rules of interpretation to avoid giving the Constitution “an extent and elasticity, subversive of all rational boundaries.” The modern Supreme Court has nonetheless assigned to the Constitution an elasticity that is stretching it to as yet unknown dimensions.
3. “The Least Dangerous Branch” by Alexander M. Bickel (Bobbs-Merrill, 1962).
Alexander Bickel attempted to resolve the central problem of constitutional law: Our political ethos is majoritarian, but the court, possessing the power to nullify laws democratically enacted, is countermajoritarian. The problem becomes acute when the court imposes principles not to be found in the Constitution. Mr. Bickel justified that role by saying that courts should apply principles drawn from the “evolving morality of our tradition.” Written gracefully and offering many insights into constitutional doctrines, this book is the most intellectually honest, if unsuccessful, defense of non-originalism of which I am aware.
4. “The Rise of Modern Judicial Review” by Christopher Wolfe (Basic Books, 1986).
Christopher Wolfe addresses a transformation in constitutional law that “The Federalist” and Joseph Story could not have foreseen and that Alexander Bickel, despite his attempt to justify a modest non-originalism, deplored. The book traces judicial supremacy from its early “moderate traditional form” to the modern era, in which many judges think that the historic Constitution “does not contain sufficient constitutional (judicially enforceable) protection for liberty and equality,” thus requiring them to revise and even overrule the Framers’ intentions. Mr. Wolfe’s critique of the court and the academic defenders of its activism defies easy summation precisely because of its comprehensiveness, erudition and analytical rigor.
5. “Separation of Church and State” by Philip Hamburger (Harvard University, 2002).
What Mr. Wolfe does regarding the excesses of judicial activism in general, Mr. Hamburger does for the many distortions of the Establishment Clause of the First Amendment. He devastates Jefferson’s notion of a “wall of separation” between religion and government, demonstrating that such a notion was utterly idiosyncratic at the time. Strict separation was revived by anti-Catholics in the 19th century and picked up by the court in the 20th, a development for which Justice Hugo Black bore much responsibility. The modern era of judicial hostility to organized religion and its symbols in the public square is directly contrary to what the Framers meant when they prohibited the establishment of religion. Though Mr. Hamburger does not trace the damage done by preposterous decisions in recent decades, this is a marvelous book.
Mr. Bork, a fellow of the Hudson Institute, is editor of “A Country I Do Not Recognize: The Legal Assault on American Values” (Hoover, 2005).
Mark R. Levin does a great job of explaining the utter hypocrisy of the Left and the Democrats when it comes to interpreting the United States Constitution by the Supreme Court of the United States:
I hope those observing today’s Alito hearings will pay at least as much attention to what Alito says in response to questioning as to the predictable idiocy of many of the questioners. There are serious problems with the substance and consistency of the premises of those who reject an originalist interpretation of the Constitution.
Arlen Specter and Chuck Schumer are full of contradictions. They speak of the Court following precedent (even super-duper precedent) when they support a line of cases, particularly respecting abortion. Of course, Roe v. Wade was nothing more than a concoction of the policy preferences of seven justices. And which precedents are we to follow?
There are myriad examples of this kind of rejection of precedent. With what convolutions of logic do they square their supposed reverence for precedent with these cases?
Then we get their argument for a “living Constitution.” Justice Stephen Breyer calls it “active liberty.” The late Justice William Douglas invented the phrase (shorthand) “emanations from penumbras.” These phrases are nothing more than arguments for rejecting the Constitution. And they represent the antithesis of precedent, i.e., anything goes.
Specter and Schumer have also argued that the Court needs to have respect for the proper roles the different branches of government play. But here, too, they are result-oriented. In 2000, in Stenberg v. Carhart, the Court struck down Nebraska’s ban on partial birth abortion. You won’t hear Specter or Schumer criticize this judicial usurpation of a state legislature because they support partial birth abortion.
I am hopeful that one, or perhaps more, conservative Republicans on the Senate Judiciary Committee will use the occasion of the Alito hearings to expose the absolute bankruptcy of the Left’s arguments, and its effort to institutionalize its political and policy agenda through the Court.