Most people don’t realize it, but we have two Constitutions. One is the original Constitution as written by the founders. It is the shortest written Constitution of any major government in the world. Probably the most common version is the Pocket Constitution, which literally fits in a normal shirt pocket. It measures about 3 by 6 inches and includes the Declaration of Independence, the Constitution and all 27 Amendments. It is 39 pages in total.
The second Constitution, the one enforced today, is the Constitution Annotated (aka CONAN). It is the Constitution as interpreted by the Supreme Court. It is more than 3,000 pages, easily 4 inches thick and 10 pounds of paper. Today, it comprises the primary law of the U.S. federal government. The 3,000-plus page bound edition is published every 10 years with cumulative updates issued biannually. Every page in the newest version of the Constitution Annotated represents additional power granted to the federal government.
Recall that the states created the federal government and one of the main purposes of the Constitution and especially the Bill of Rights was to keep the federal government in check, establish a system of checks and balances, and create a division of power between the federal government and the states.
Previous case law and the rulings contained in the Constitution Annotated are known as precedent. According to Black’s Law Dictionary, “precedent is an adjudged case or decision of a court of justice, considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law.”
All courts are bound to follow the decisions made by the courts above them in the hierarchy unless they are overturned, but application of an erroneous past decision could lead to unjust decisions being made in later cases. Examples abound.
The Dred Scott decision in 1857 ruled that black people were not entitled to the same right of citizenship as white people. Plessy v. Ferguson, in 1806, upheld separate but equal and established apartheid as the law of the land.
The Pace v. Alabama decision in 1883 made interracial marriage a crime in Alabama, and Korematsu v. United States in 1944 ruled that Japanese internment during World War II was constitutional. These are just a few of the very obvious erroneous Supreme Court rulings which were for a time considered settled law.
Of particular interest these days with the confirmation of the next Supreme Court Justice looming are the opposing views as to where the emphasis should be placed in deciding cases; settled law and precedent per the 10 pound version of the Constitution, versus a strict originalist interpretation of the text of the founder’s version of the Constitution. Laws passed by the federal government outside of their enumerated powers as spelled out in Article I of the Constitution, or pronouncements made by the Supreme Court which should have been decided by the states per the 10th Amendment are considered by some to be at risk. The doctrine known as “stare decisis” tends to disfavor any legal argument that precedents were wrongly decided, but you can see by the aforementioned decisions that mistakes are made and have been overturned from time to time.
Surprisingly most Supreme Court decisions end up either unanimous or split 5-4 with not much in between. But it is worrisome that one person on the court of nine justices wields so much power as Justice Kennedy did over the last 30 years. Closely decided cases ending up in 5-4 decisions seem to be those of ideological disagreement or hot-button issues.
Good laws wisely interpreted per the original Constitution should have more unanimous or widely supported decisions rather than narrow nail-biting 5-4 legal decisions. People on both sides of the political spectrum show their true colors when they insist that a Supreme Court nominee be either liberal or conservative when ideally the nominee should be a constitutionalist loyal to the Constitution and its text, forcing their will neither right nor left.
The late Justice Antonin Scalia opined that, “The judge who always likes the results he reaches is a bad judge.” He used a flag burning case as an example. “I didn’t like it at all, but it was clear to me that the First Amendment permitted it.”
From this and his other writings and opinions it is clear Scalia favored the original version of the Constitution.
As citizens of a free republic it is our duty to preserve it. If you would like to take a free online course on the U. S. Constitution go to: www.freeconstitutioncourse.com.
Mikie Kerr is a constitutional enthusiast who lives in Waikoloa and writes a monthly column for West Hawaii Today.