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July 27, 2011 2:35 pm

The Constitution of the United States (R.I.P.)

avatar by Moshe Averick

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United States Supreme Court - Washington, D.C.

Cause of Death: It became a “living, breathing document”

On July 19, 2011, it was reported that former President Bill Clinton proclaimed that if he was president, he would raise the debt ceiling unilaterally by invoking the 14th amendment “without hesitation, and force the courts to stop me.” I would imagine that Clinton, a Rhodes Scholar who did a stint as a law professor, is certainly capable of putting together some sort of coherent legal brief supporting his position. On the other hand, perhaps he was not serious at all; perhaps he was just trying to stir the pot on behalf of his Democratic colleagues who were involved in tense negotiations with Republicans on resolving the budget crisis. Whatever the truth may be, such a news item reminds many of us about the “400 pound gorilla” who is always looming off in the shadows of our peripheral vision, ready to pounce and roar in our faces, just when we were hoping he had disappeared.

That “400 pound gorilla” is the question about the ultimate fate of the Constitution of the United States of America; which rests not in the hands of former presidents, but in the hands of perhaps the most noble and revered – and at the same time the most potentially dangerous – institution associated with American democracy: the Supreme Court of the United States. What’s so dangerous about the Supreme Court? The answer is simple. By declaring a particular law unconstitutional, or by announcing the discovery of a new constitutional “right”, the justices who comprise the court have the power to thwart and vacate the will of the entire nation, including the President and Congress, and replace it with their own. Why would our founding fathers establish a structure that gives nine men and women, who have lifetime appointments to their positions, such incredible power? Again the answer is simple: In any meaningful system of societal values, somebody must have the final word, somebody must have the authority to make the ultimate decisions about what a society deems right or wrong within the paradigms it has set up for itself, somebody must be the custos morum, the “guardian of the morals.”

In our case, all laws must be judged by the yardstick of the principles established in our Constitution, and the authoritative reading of that yardstick, ultimately, can only be determined by the justices of the Supreme Court. The obvious question must then be asked: Are we a nation that has vowed to uphold, serve, and nullify our wills before, the Constitution, or have we vowed to uphold, serve, and nullify our wills before, the justices who comprise the Court? Is it the Constitution that we revere, or is it the justices we revere? Same question, different formulation: When a majority of the Supreme Court votes a certain way, how do we know that they are not just telling us their own personal views about the way things should be, and justifying it after the fact by connecting it to the Constitution? After all, a highly experienced and intelligent jurist can make a constitutional/legal case for just about anything if he or she sets his or her mind to it. (If you doubt that, just ask Bill Clinton what he thinks of the 14th amendment.)  Jewish law required the 71 judges who comprised the Sanhedrin (the supreme court of the Israelites), to be so skilled in their intellectual acuity, that they had to be able to present 100 proofs that something which everyone knew to be patently false was actually true!

The prospect of federal judges using judicial powers to impose their own social, philosophical, and moral agendas on the population under the guise of “constitutionality” is very frightening for most Americans. Of course, it has already been done; in very frightening ways, I might add. In 1927, Justice Oliver Wendell Holmes, writing the majority opinion in Buck v. Bell, stated that the State of Virginia did not deny Carrie Buck her 14th Amendment rights of “due process of law and equal protection of the laws,” when they sterilized her without her consent. After all, as Justice Holmes explained to anyone who was interested, Carrie Buck was “feeble minded” and most important of all, “three generations of imbeciles is enough.” If the 14th Amendment does not protect an individual against being forcibly sterilized, it’s hard to imagine what it would protect. By the same logic, lynching a Negro because he is “sub-human” would also not be a violation. My guess is that in an unguarded moment, after a shot or two of whisky, Holmes would have agreed. (and maybe even in a guarded moment, when he was sober)

In hindsight, we all understand that this decision – with the 8-1 majority including such luminaries as Louis Brandeis (my son, the Supreme Court Justice!), William Howard Taft, and Harlan F. Stone – was nothing short of an abomination. The decision had nothing to do with Constitutional law and everything to do with the zeitgeist. Those eight justices were enthusiastically endorsing the eugenics ideology (i.e. improving humanity by eliminating “defectives” from the gene pool), that was all the rage in “enlightened” and “educated” circles in the 1920’s, with Nobel Laureate George Bernard Shaw even suggesting that “defectives” be mercifully gassed to death. (If I’m not mistaken, in his Senate confirmation hearings, Holmes testified that a “wise,” “enlightened,” and “educated” white Anglo-Saxon Protestant male had much to offer the court.)

A similar abomination was dropped in the laps of the American people by the Supreme Court under Chief Justice Harry Blackmun in January, 1973, in Roe v. Wade. Justice Blackmun, writing for the 7-2 majority opinion (almost 8-1, but not quite), in a display of sleight-of-hand worthy of David Copperfield or Siegfried & Roy, waved his magic black robe and conjured up out of thin air a constitutional “right” for a woman and doctor to collaborate to kill an unborn child. In what clever hiding place had this hitherto unknown “right” been concealing itself for over a century, before being discovered by Blackmun and his colleagues? You guessed it, the 14th Amendment! (A riddle: What do forced sterilizations of the “feeble minded,” the theoretical lynching of Negroes, killing unborn children, and unilaterally raising the debt-ceiling have in common?)

Since all agree that killing a living baby constitutes a homicide, it is of paramount importance in any meaningful discussion of abortion, to resolve that most urgent and essential of all the various issues involved: When does life begin? One would have expected Justice Blackmun to have addressed this crucial question and, of course, he does (sort of):

“Texas urges, that, apart from the 14th Amendment, life begins at conception and is present throughout pregnancy and that therefore the State has a compelling interest in protecting life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the developments of man’s knowledge, is not in a position to speculate.”

It’s rather odd, to say the least, that Blackmun asserts that it is not necessary to resolve the most foundational and fundamental question around which the whole abortion issue revolves. He even candidly admits the obvious truth that the judiciary is unqualified to render such a decision! What’s even odder is that he then goes on to actually define when, in his opinion, life begins and bases the entire decision on that definition! Justice Byron White, who dissented, called the decision nothing more than an “exercise of raw judicial power” (which it was). Edward Lazarus, a former Blackmun clerk and admirer wrote, “As a matter of interpretation and judicial method, Roe borders on the indefensible…Justice Blackmun’s opinion provides essentially no reasoning in support of its holding.”  The point here is not whether abortion is moral or immoral; the point is that abortion has nothing to do with the Constitution and the Court had no business getting involved. As with Buck v. Bell, the decision had nearly zero connection with Constitutional law and everything to do with zeitgeist. It is patently obvious that Blackmun and his colleagues decided that the spirit of the times had presented them with a golden opportunity to impose their own social agenda on the people of the United States. In that assessment they were correct. It was a savage abuse of their judicial powers and a desecration of both the court and the Constitution they were sworn to defend.

There is today a mantra that is popular in many liberal circles that the Constitution is a “living, breathing document.” President Obama has written, “It is not a static but rather a living document, and must be read in the context of an ever-changing world.” It goes without saying that it is the justices who do the reading and “contexting.” In one historical context – when Eugenics was popular – the 14th Amendment allows the forced sterilization of “defective” human beings; in another – when society was engulfed by a tsunami of feminist ideology – it is the basis for the destruction of unborn children; in another it could create a “right” for a man to “marry” his own sister, or perhaps his German Shepherd. This is not rule of law under the Constitution. This is law by judicial fiat,  and it simply reflects whatever particular “ism” happens to be popular among a majority of justices at that point in time.

Those who espouse the philosophy of a “living, breathing document” are those who wish to mold and re-create the Constitution in “their own image.” It is those, like Harry Blackmun, who would issue sweeping transformative decisions in an exercise of “raw judicial power,” and disenfranchise millions of Americans from their right to decide their own destiny. Let us not mince words or engage in childish semantic games. The concept of a “living, breathing document” is a code-phrase for the following: The Constitution means whatever the hell we can get a majority of justices to say it means! This, of course, would sound the death-knell for the Constitution and American Democracy as we know it. On the other hand, it is undeniably true that we do not live in a static world. Our world is ever-changing. How do we face that challenge?

Isn’t the answer to that question rather obvious? It is the people who will decide how to grapple with and react to our dynamic, ever-changing world. It is the people who will decide – for better or worse – if killing unborn children is every woman’s right, it is the people who will decide what marriage is or isn’t, who can marry who, and even how many one can marry. These issues are not the business of a group of nine black-robed individuals in Washington. Judges have no more insight and understanding regarding the definition of life and marriage any more than I do, or for that matter, any other American citizen. We pray you honored and distinguished justices: Please don’t share with us your wisdom, be it black, white, Jewish, Latina, or other. Please don’t share with us your personal philosophy, social agendas, or moral principles; if you wish, share them with your spouses, friends and families; share them in op-ed pieces or in a book; just leave them behind when you don your judicial robes and enter the highest courtroom in our land. We the people have assigned you one mandate and one mandate only: To revere, uphold, and most of all, to guard, the sanctity of the Constitution of the United States of America. Accept this sacred trust with fear, trepidation, and humility. Leave the rest to us, a government of the people, by the people, and for the people.

Rabbi Moshe Averick is an orthodox rabbi and author of Nonsense of a High Order: The Confused and Illusory World of the Atheist. It is available on and Kindle. Rabbi Averick can be reached via his website at

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  • Rocky

    The constitution has served over the years to protect unpopular minorities from a tyrannical majority. Many Americans would undoubtedly repeal many sections of it if they had the chance at the ballot box. The Supreme Court has often been slow to overturn laws that are popular with the people but are in conflict with what the constitution says. Whites only railroad cars were upheld in 1895 by the Court (Plessy v. Ferguson) making a mockery of equal protection under the law (14th amendment). It would take another 50 years + for equal protection to come to Black America, starting with Brown v. Board of Education (1954). Jews were excluded from numerous residential areas, including most of the town of Bronxville, NY, until the Supreme Court ruled such zoning discrimination illegal in 1948.

    The prohibition of a religious test in the constitution in 1787 was a first for its time. Over the past 150 years, no demographic group in the US has moved up the economic ladder better than the Jews, thanks in part to the absence of a state religion. They become opera and symphony conductors, doctors and lawyers, scientists and bankers, Senators and Congressmen, even Mayor of New York. They have been winning a disproportionate number of MacArthur Genius awards since the program started in 1981. And of course, they have been big winners of Nobel Prizes.

    Recently, religious Jews and Evangelical Christians have joined forces with Mormons and other groups to push religion onto the public square and to hold back the efforts of another unpopular minority (gays) to achieve equal protection under the law. In the long run, turning the US into a Christian or even a Judeo-Christian nation will not be good for the rights of Jews, especially those who look like they have just stepped out of a movie set for a remake of “Yentl”. Martin Luther was initially friendly towards the Jews when he started his Reformation in the 1520’s. By 1543, he had turned sharply against the Jews, having failed to get them to accept his religion. His later writings would form the basis of Nazi antisemitism nearly four centuries later, from the burning of prayer books to the burning of synagogues.

  • Atomic Writer

    Your article is misleading. No method of interpreting the Constitution is immune from error–whether as a strict constuctionist, textualist, originalist, or living constitutionist. History has plenty of examples. Also, you assumed, but did not make the argument, that the Constitution only supports majoritarianism. There is a strong argument that it also supports countermajoritarism. Much as you were able to point to egregious decisions by the court, I am not so sure Congress is the safe habor.

    • Moshe Averick


      You are correct, there is no perfect solution, and I was not trying to suggest there is. The implication is, however, that the most correct approach is to stick to “original intent” as much as possible, to minimize any form of judicial legislating, and when in doubt to minimize the power of the judiciary and maximize the power of the people. The judges have to look at the Constitution ALMOST as if it is a divine document (obviously we all know it isn’t) and to inject as little as possible of their own views.

  • Lion IRC


    The Constitution is a ‘written’ document.

    No wonder it is in post-modern peril.

    “We the people…”

    Wait! wut?

  • Sir,your point about the supreme court judges having the power they do is right on!They should not!! The people should have the right to over rule their decision and be the final authority. We all know that the Declaration of Independence states very well that when government is going against the people [like when our country was started]…it is our right to alter or abolish it.
    It is true also that obamas zars are outrageously illegal also, Americans are just about to the boiling point with all this injustice we are trying desperately to keep all of this peaceful to me it is frustrating.
    My tea party group feels the same way.
    Thank you again,Charlie Resseguie from,central N.Y. state

  • Mark Cohn

    You speak of things you don’t know much about with an aura of authority. A problem many religious people seem to have. The health care reform law is NOT “clearly” unconstitutional as conservative Judge Jeffrey Sutton has written for the Sixth Circuit.
    Moreover, it is always odd the way political conservatives are accepting of the Supreme Court striking down laws on trumped up constitutional grounds, but are hypercritical if a liberal court recognizes individual rights under at least an equally valid understanding of the constitution. STiking down laws that Congress and the Executive have approved is nothing less than judicial activism. Justice Scalia and his ilk are guilty of this “sin” routinely.

    • Moshe Averick


      My remark was tongue in cheek. It is very possible for a “conservative” court to abuse their judicial power also.
      I have no opinion about Obamacare being constitutional or unconstitutional. I still think your original remarks missed the point about what I was trying to say.

    • Moshe Averick


      Excuse me, the new comment addressed to Horton was actually in reply to you.

      I also want to apologize for a mistake. Harry Blackmun was not Chief Justice, William Rehnquist was the Chief Justice at the time.

  • Moshe Averick


    Obviously I was not trying to say that if the majority do something that is clearly unconstitutional, it becomes justified. You are correct about Congress,for instance, Obamacare is clearly unconstitutional even though it was passed by Congress. I never said that the Supreme Court should be disbanded, I said that they must be extremely cautious in not overstepping their mandate.

    The Constitution was never written to give the Court unlimited power and to set policy for the American people.
    It’s hard for me to see how you would have concluded from what I wrote that the majority should have the ability to overide the Constitution.

    • Rilke’s Granddaughter

      Averick, do you even read your own posts? First you said, “I have no opinion about Obamacare being constitutional or unconstitutional.” Then barely a post later, you said, “You are correct about Congress,for instance, Obamacare is clearly unconstitutional even though it was passed by Congress.”

      Your failure to reason coupled with your inability to keep your stories straight doesn’t bode well for the content of your rants.

  • Where did you find such an obviously ignorant “rabbi”? It’s a basic fact in Judaism that the Sanhedrin had 71 members, not 72.

    • Moshe Averick


      Thanks for pointing out that typo, I noticed that mistake myself, but it was too late, it had already been posted.

  • MightyHorton

    The “will of the people” is sometimes contrary to the constitution. Just because a law is passed by, for instance, a bunch of recently elected and terribly worked up, Congressmen doesn’t mean it is constitutional. Look at how the mob gave away Germany to Hitler or Venezuela to Chavez. You think your philosophy is the only right one and that laws reflecting what you want are always right and constitutional and then criticize judges who tell you that, no, a majority wanting it doesn’t make it constitutional. The U. S. constitution doesn’t give the majority the power to legislate whatever the heck it wants. The majority has to stay inside the constitution. You forget that the minority has rights, too. You don’t get to have it all your way, thanks to the Constitution.