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Trump and Barr Can Give Us Back Our Constitution

Trump and Barr Can Give Us Back Our Constitution

President Donald Trump speaks at the Governors' Ball in the State Dining Room of the White House in Washington, D.C., on Sun. Feb. 24, 2019. Seated left is U.S. Attorney General William Barr. (Carolyn Kaster/AP)

Monday, 25 February 2019 03:52 PM Current | Bio | Archive

The law and Constitution have an inordinate relevance for Americans.

We have no monarchy, no aristocracy, and no established church.

All that binds us together is our fundamental law — as David Dudley Field, one of the most successful 19th century lawyers, explained, "The law is our only sovereign." The rule of that sovereign is now imperiled to an extent, as Conrad Black recently declared, greater than at any time since our Civil War.

We now have, instead of a government of laws, government by unelected bureaucrats who are quite capable of seeking to undermine rule by the people and the rule of law, as Obama administration holdouts and the Clinton campaign jointly sought to do to the administration of Donald Trump, by concocting the Russian collusion hoax.

Where did that hubris manifested by the denizens of the deep state come from?

Most of those who sought to make it impossible for Trump to be elected, and, failing that, to make it impossible for him effectively to govern, were, shockingly, educated at our most prestigious colleges and law schools, receiving the best professional training available.

How can it be, though, that such training failed so miserably to inculcate the traditional American values, so that those who experienced it could perceive Donald Trump — a man who ran on a platform reaffirming those traditional values — as a threat requiring clearly extra-legal activity and manipulation of the criminal and national security apparatus effectively to neutralize?

A fish rots from the top.

If we want to understand how we lost the rule of law in this country we must look at what should have been the apex of constitutional leadership, the U.S. Supreme Court.

The blame for our current predicament belongs to that court, and in particular, it's a result of the constitutional decisions of the Hughes, Warren, and Burger courts.

The Hughes court reversed decades of decisions restricting the reach of state and federal regulation, culminating in 1937 in a series of rulings permitting the federal government to intrude in virtually any matter that even indirectly affected interstate commerce, and which dramatically eroded contract and property rights that had formerly been protected.

The Warren court, applying the deeply spurious "incorporation doctrine," declared that the Bill of Rights — our historic protection against an overweening federal government — and passed with only that aim in mind, should be read, because of some ambiguous language in the Fourteenth Amendment, to apply also to check the activities of the state and local governments.

Paradoxically, this made an agency of the federal government, the federal judiciary, the supervisors of the states, in a manner that would have been anathema to the framers — like Thomas Jefferson. The greatest fear of Jefferson's was a central government which would obliterate the prerogatives of the governments closest to the people — the state and local ones.

Nevertheless, liberals and progressives hailed the work of the Warren court, which now dictated to the states what they could do in aiding religion, in public education, in law enforcement, and even in drawing up internal legislative districts.

All of this was done in the name of protecting the formerly disadvantaged, but all of it reflected a mindset that the ephors of the federal courts knew more about wise social policy than did the people or their representatives.

Instead of simply following the original understanding of the Constitution, the Warren court, applying what it believed to be adherence to "evolving standards of decency," reformulated our constitutional law regarding race, criminal procedure, and reapportionment.

The Burger court then proceeded, in the notorious decision of Roe v. Wade 410 U.S. 113 (1973), to usurp the rights formerly belonging to the states to regulate abortion, and, more recently, the high court has taken away from state and local governments the power to formulate policies regarding marriage, in a manner clearly departing from what had been understood since the beginnings of Western civilization, let alone our Founding.

Implicit in what the Supreme Court did in reformulating constitutional law pursuant to an evolutionary theory of a "living Constitution" was a belief that nine unelected judicial bureaucrats had access to wisdom that escaped the Framers and the contemporary representatives of the American people.

These decisions were loudly applauded by the teachers in our universities and professional schools. The "creative" judges were showered with praise.

Is it any wonder then, that this flouting of the rule of law and the original understanding by our highest legal authorities could eventually be replicated in other parts of the bureaucracy, by bad actors similarly convinced that they could ignore the law to achieve their own nefarious, illegal, and unconstitutional aims? It's now up to the president and his new attorney general, William Barr, to begin the process of giving us back the Constitution.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.

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Is it any wonder then, that this flouting of the rule of law and the original understanding by our highest legal authorities could eventually be replicated in other parts of the bureaucracy, by bad actors?
burger, hughes, warren
Monday, 25 February 2019 03:52 PM
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