BY JONATHAN SKRMETTI
Imagine a society ruled by a priestly elite, mystics clad in ornate regalia who live among their flock but are not part of it, who hold themselves above ordinary citizens. They gain their authority from a sacred scripture that ritual training gives them secret knowledge about, and which they invoke to keep parishioners in line. They teach that they have been charged to protect the people from themselves, that they are benevolent tyrants who have taken the citizenry’s best interests to heart. The people, unable to decipher the secret construct built upon the scripture and cowed by the mysticism of the priests, obey.
It’s not hard to imagine this kind of society, because we live in it right now. As you read this you are in the middle of your priestly indoctrination. Harvard Law School is the heart of the elitist system of judges, professors, law clerks, legal academics and lawyers who have robbed the people of their Constitution.
Remember that the Constitution is a popular document. Its authority stems from its ratification by the people of the States. The Constitution was not handed down from on high to Moses, John Marshall, Christopher Columbus Langdell or anybody else. It was an arrangement hammered out by the representatives of the people, subject to change over time by more such representatives or by the people themselves.
But for the last 150 years, the Constitution has become a document that is not of or by the people, but claimed to be for the people by a group of elites who say that it protects the people from themselves. Cloaking their complicated pronouncements on what the Constitution means with obscure terminology and chains of citations that make opinions read like jumbles of jargon, judges tell the people what the people meant when they ratified the document. Opinions have become increasingly technical, longer and stylistically impenetrable. The result is that the very people who made the Constitution, and whose consent maintains its authority, are no longer privy to the document as it is applied to them.
Legal scholars should not be able to wield the Constitution as if it were the Ark of the Covenant when marching into battle against the uneducated masses. It is a document of the masses, and while it does check the power of the majority, it is always bound by its popular nature. The Constitution should not be and was never meant to be a wholesale grant of authority to an elite minority. It is a people’s document, and it demands a people’s court.
Aside from providing a strong argument for textualism, the alienation of the people from their Constitution also requires a return to a more deferent judiciary. When a law is passed, courts should only strike it down if it clearly conflicts with the Constitution. If there is any possibility that the law is constitutional, the benefit of the doubt belongs with the elected representatives of the people. This requirement of judicial deference is even more forceful for laws adopted directly through referenda.
When the Constitution does not clearly authorize or prohibit something, courts should not contort their interpretations to make it do so. If the people want a new right added or an old right taken away, they should amend the Constitution. Amendment proposals should not be regarded with horror but rather embraced as the sign of a healthy citizenry concerned with maintaining the Constitution as a receptacle of the will of the people. To regard the Constitution as anything else is to deprive it of its authority. In addition, while there is ample opportunity for highly technical lawyering, constitutional cases should be written in language accessible to all, with decisions that any civics-minded high school student can understand.
Many will reply with clever arguments to undermine all this populism. Ultimately what they say will collapse into some version of “We know what they want better than they do.” Anti-populist arguments necessarily rely on a distinction between the elites and the unwashed masses.
Any such distinction is pure arrogance. We are not better than ordinary people; in fact, we are ordinary people – we just convince ourselves otherwise. Everybody is an ordinary person, and that’s what’s great about America. The Constitution is ours as much as it is anybody else’s, but no more so.
As Judge Wapner said, “a judge is not a god or a king.” In America, nobody is. All of our law arises from democracy, from the people. We who drape the law in mystery and ritual would do well to remember that.
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