There are voices on the left that love to castigate both the Founding Fathers and the Constitution they wrote.  They were white slave owners. They were men. They were rich. And worst of all, the founders were Christians—an allegation they conveniently forget whenever they want to wrap themselves in the mantle of the ACLU’s version of the Constitution.

One of those leftist voices managed to get a seat on the Supreme Court of the United States—an office he held after taking an oath that he would support and defend the Constitution of the United States.  His name was Thurgood Marshall.  Here is a portion of a speech he gave on May 6, 1987.

I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite “The Constitution,” they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago…

…The men who gathered in Philadelphia in 1787 could not have envisioned these changes. They could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendent of an African slave. We the People” no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of “liberty,” “justice,” and “equality,” and who strived to better them.

I should make it clear that I had a pretty good experience in my one and only interaction with Justice Thurgood Marshall. He wrote the majority opinion for my 9-0 win before the Supreme Court in Witters v. Washington Department of Services for the Blind.

Marshall has a point. There were defects in American government after the Constitution was written. Patrick Henry was the first major leader to attack it for its insufficiencies. His critique led to the adoption of the Bill of Rights—a constructive criticism if there ever was one.

And it is self-evident that the Constitution permitted the institution of slavery.  This was principally the result of leaving the issue of slavery wholly to the states—with the regrettable exception of the original constitutional provision which prohibited Congress from abolishing the slave trade prior to 1808.

But does any of this mean that the Constitution itself was truly deficient or that the Founders failed to accomplish something that was truly remarkable?

The Founders gave the world its first written national constitution. And with this Constitution came a system of law that promised rights that were truly enforceable against the government.  Ours is a system of laws not men.

This promise was successfully used by Marshall himself as a litigator. He was the one who stood before the Supreme Court (an institution created by the Founders) to argue the constitutional supremacy (a doctrine created by the Founders) over the Virginia state law requiring public schools to be racially segregated.

Marshall’s own victory over racism in public education would not have been possible but for processes and principles established by the Founders.

But, there is an insidious idea built into Marshall’s speech. Since the Constitution wasn’t perfect, judges are free to ignore the fixed meaning of the words of the text and redefine them in light of their own personal value system.

This is a counter-revolutionary idea that seeks to take America back to the principles of feudalism.  If judges can change the meaning of legal terms to reach the outcomes they desire, then they no longer believe in the rule of law rather than the rule of men.  This kind of judicial activism is nothing other than the rule of men—it is just the judges who are grabbing the reins of power.

The ultimate question is: How do we make changes to our system of government?

Do we make changes by judicial fiat? Or, do we make changes by the process of amending the Constitution according to the rules laid out in the text?

We banned slavery by amending the Constitution. We legalized the killing of unborn children by judicial fiat. We guaranteed religious freedom for all by amending the Constitution. We have taken away the ability of Christian groups on campus to choose their own leaders by judicial fiat.

The fruit of the amendment system that the Founders put in place has largely served to advance the interest of all Americans in a just and equal fashion. The fruit of the system of judicial activism advocated by Justice Marshall has led to millions of deaths, a scourge of immorality, and the diminishment of many of our liberties.

The rule of law really is a whole lot better than the rule of men.

The Founders weren’t perfect, but they declared that they intended to create a nation where all men were recognized as being created equal. And they gave us a system of government which made that promise achievable.

In 1973, the Supreme Court declared that the 14^th Amendment’s protection of “liberty” gave women the fundamental constitutional right to abort their unborn children.  During oral argument, the abortion-rights lawyer was asked whether the unborn child had the constitutional right to life.  She tried to duck and run from this question.

The whole abortion debate turns on these two constitutional questions:

1. Does the 14^th Amendment guarantee of liberty include the right of a woman to “terminate” an unwarranted pregnancy?

2. Does the 14^th Amendment protect the right to life of an unborn child?

There are three possible answers to these questions.

• a. A woman has the liberty to abort her baby. Thus, the child’s right to life is not protected.
• b. The child has the right to life. Thus, a woman’s right to an abortion is not protected.
• c. The 14^th Amendment doesn’t protect either right. Thus, the states may adopt whatever policy on abortion they wish.

Which is the right answer?

It depends entirely on who you ask and on the methodology that they use to answer the question.

The main methodology choices are:

1. Adopt the meaning of the Constitution that best follows its overall spirit in light of modern circumstances.

2. Determine what the actual words of the Constitution meant to the people who wrote and ratified them.

There are a variety of labels attached to these two schools of thought and there are an almost-infinite number of variations on these themes among legal scholars. The terms “original intent, original meaning, and strict constructionism” are all associated with the second method of constitutional interpretation. The terms “living Constitution, judicial activism, and progressivism” are among those used to describe the first theory.

I am an originalist because I believe in self-government. Judges shouldn’t make law because they are not elected legislators.  So, I reject the first approach (Living Constitution) because it inherently involves judges re-writing the law to suit their own personal philosophy rather than even attempting a faithful interpretation of the actual constitutional text.

To an originalist the proper way to think about the 14^th Amendment terms is this: In 1868 (when the Amendment was adopted), was an unborn child understood to be a “person” for the purposes of protecting its right to life?

The historical information that we need to answer this question is almost all contained in the majority decision in Roe v. Wade.

In the early part of the 19^th century, doctors believed that a child came alive at “quickening”—that is the point where the baby was big enough for the mother to feel its movements. Those who are familiar with the King James Version will recognize the phrase “the quick and the dead.” Quickening meant to “come alive.”

But, by the 1850s doctors began to know the truth. And the American Medical Association appointed a commission to study the matter with the purpose of “its general suppression.”  The AMA said that an honest judge would call it by its right name [i.e. murder] and so should we.

As a result of the new medical information, state legislatures responded by making abortion a crime—a homicide.  By definition, a “homicide” is the unlawful taking of the life of a human being—a person.

By 1868, 30 (out of 37 states) had expressly outlawed abortion. This means, that both scientifically and legally an unborn child was recognized as a person deserving the right to life.

Accordingly, it is pretty obvious that a child had the recognized right to life in 1868 that was included within the protection of the 14^th Amendment’s declaration that no “person shall be denied life without due process of law.”

But there are a couple of “conservative” objections to this conclusion—so let’s clear them up.

First, if you look at the first sentence of the 14^th Amendment you will see this language: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

Thus, some people contend that the 14^th Amendment only protects the rights of persons who have been born. These people need to keep on reading.

All that this first sentence does is to define citizenship—something that had not been done in the original text of the Constitution. It doesn’t say that rights that follow are limited to citizens.

Remember it says: No person shall be denied life without due process of law.

Suppose a Swiss tourist is arrested for murder while on vacation in California. Would California courts be allowed to order the tourist executed without a fair trial? Could the courts deny him life simply because he wasn’t a citizen?  Of course not.  All persons have rights—citizens and non-citizens alike.

Thus, this first objection cannot stand.

There is a second “conservative” objection. These objectors argue that the historical context of the 14^th Amendment was the desire to guarantee racial equality for African-Americans. Thus, the only legitimate application is to make sure that black citizens obtain the same level of legal protection as white citizens.

When I find people like this I love to pose hypotheticals to them.  If our constitutional rights are going to be limited to those fact patterns that the drafters were thinking about would you have 4^th Amendment rights to keep your computer records safe against government searches and seizures without a warrant?  There is no way that the Founders had computers in mind when they wrote the 4^th Amendment.

The 4^th Amendment protects your computer records because the constitutional protections written in 1791 were understood to apply to all forms of written records—not just those literally on “paper” as specified in the text of the 4^th Amendment.  Parchment records (leather skins) were also protected—not just those made of cellulose.  The original meaning of papers is “written records.” Thus, all written records are protected today—regardless if the founders could never have imagined modern computer technology.

Old principles apply to new facts. That is good constitutional law. (Finding new principles in old constitutional language—that is bad constitutional law.)

If you could ask the writers of the 14^th Amendment about their meaning, the proper question would be: Do you understand unborn children to be human beings who have the right to life? (The improper question would be: Why are you passing this amendment?)  It is the words of the Constitution which are the highest law of the land. We should always be concerned about what the words mean—first and foremost.

It is really beyond question that an unborn child had the recognized right to life in 1868. Thus, it is utterly impossible to conclude that a woman had the recognized right to terminate her pregnancy—these are mutually exclusive rights.

Our Constitution is already a pro-life document. We just need justices, presidents, and senators who understand this and will actually obey their oath to follow the Constitution.

Rule 1: The government can only take those actions that are authorized by the Constitution.

Rule 2: The government may not use its lawful power in a way that violates the rights of the people.

Our Constitution was written to grant power to government and to limit that power by prohibiting government from invading the rights of the people.  It is incredibly important for the people to be very diligent in ensuring that government obeys both of these rules.

As a people we have been reasonably diligent in standing up for our rights. This doesn’t mean that the government is not doing its very best to invade and erode our rights as much as possible.  (We should keep in mind that most of the time the government is actually just indifferent to our rights.  Government just loves its own power.  Trampling of our rights is just a byproduct of the lust for control.)

But, we fight back against invasions of our rights. There are groups organized to protect the rights of homeschoolers, gun owners, property owners, religious groups, and many, many more.

However, we don’t have nearly the same focus and intensity for stopping the improper growth of government.

Try this test.

Which do you think upsets more people about the new federal health care law (“Obamacare”)?

a. The fact that individuals are mandated by the federal government to purchase a policy?

b. The fact that Congress has no authority to regulate the health care and insurance markets?

The lawsuits that were filed by a number of courageous state attorneys general were aimed at challenging the constitutionality of the individual mandate.  Yes, the individual mandates are wrong-headed and should be held to be unconstitutional if the Supreme Court follows the original meaning of the Commerce Clause. But, it is a much deeper and more flagrant violation of all of our rights when the federal government attempts to regulate the field of health care.

All of us will have to pay for all of these health care programs. In fact, generations unborn will still be paying for our health care (with compound interest) for decades after we are dead. When the government takes your money to pay for programs, your liberty is at stake.

Government should not be allowed to take our money except for the purposes specifically authorized in the Constitution.  The same thing is true about government regulation. The federal government should not be allowed to regulate our lives except in ways specifically authorized by the Constitution.

If all of the unauthorized spending and regulations were eliminated, the federal government would look like an anorexic shadow of its current size.

If you remember your American history at all, you should recall that James Madison and the other federalists contended that we didn’t need a bill of rights because the federal government was not authorized to act in any way that could invade the rights of the people.  Even though Patrick Henry won the debate that the Bill of Rights was truly needed, Madison’s basic point shouldn’t be lost.  Our liberties depend on limiting the federal government to its authorized scope of power.

If you want to be an effective citizen, then you need to be knowledgeable of the true limits of the Constitution’s grants of power to the various branches of government.  And when the federal government exceeds these boundaries, we all need to make sure that we collectively raise a hue and cry of such a magnitude that offending elected officials collectively decide that they need to retire to spend more time with their families.

Keep the government within its constitutional limits. Your own personal liberty depends on it.