We Need A Constitution That Means What It Says

Authored by Frank Miele via RealClear Wire,

Some U.S. senators have famously kept a pocket Constitution handy to use as a prop at political rallies; a few may have even read it. But at this point in American history it no longer matters whether they, or anyone else, can read the words of the Constitution because the words no longer mean what they say.

Take, for instance, the Supreme Court’s ruling last week that state legislatures do not have the sole discretion to determine how federal elections will be run in those states. Instead, state courts are given veto power over the decisions of the legislature.

The mainstream media (and of course their Democratic Party allies) celebrated the court’s decision in Moore v. Harper that rejected the so-called “independent state legislature” theory. The New York Times called the theory “dangerous.” Vox said the ruling was a “big victory for democracy.” Those who supported the independent state legislature “theory” were called extreme, fringe, radical, and worse. In other words, they were Trump supporters.

The only problem is that if the theory is extreme, then so is the U.S. Constitution, because no matter how much the 6-3 majority insists otherwise, it isn’t a theory at all. It is the plain language of the Constitution. Check it out for yourself.

Article 1, Section 4 of the Constitution says specifically, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

It is not the governor or the courts or even the people of the state which set election rules, according to the Constitution, but the legislatures. Mind you, the state legislatures are not entirely unchecked in their decision making, but it is the Congress of the United States that provides the checks and balances, not the courts.

And as for presidential elections, the matter is even more cut and dried. Article 2, Section 1, declares, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

Notice again that the Constitution gives state legislatures the exclusive power to determine the manner in which electors are appointed to vote for president and vice president. In this case, even Congress does not have the authority to override the legislatures.

Yet now the Supreme Court has determined that the words of the Constitution do not mean what they say. This is pure revisionism, and plainly the result of judicial activism. The plenary power of the state legislatures to make the final decision about federal elections is settled conclusively by the fact that for many years after the adoption of the Constitution, it was common in many states for electors to be chosen directly by the legislature with no election at all. Not only did the courts have no say in the matter; neither did the people.

We don’t have to defend that practice in order to confirm that it is clearly constitutional, and having said so, we can also declare that the Supreme Court in Moore v. Harper has not interpreted the Constitution, but written a new one. If we the people decided that it was inappropriate for the state legislatures to make the rules for how to elect federal officials, we could have done what the Constitution calls for and sought to amend it. But instead, lawyers have waged war upon the English language and enlisted activist judges and justices to implement interpretations that are based more on sentiment than common sense.

If we are being honest, it is not just crazy liberals who twist the words of the Constitution to mean whatever they want. Not long ago, I wrote a column titled “Do Democrats Value Abortion More Than the Constitution?” It lambasted Biden and others who want to create a law to protect abortion.

As I explained then:

Congress has no such ability. Article 1, Section 8 of the Constitution enumerates the powers of Congress. They are remarkably straightforward – and limited. Raise taxes, borrow money, regulate international commerce and commerce among the states, establish a process for naturalizing citizens, coin money and punish counterfeiters, establish post offices, establish copyright and trademark laws, establish lower courts, regulate pirates, declare war, raise armies and a navy, provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions, and create and maintain a small district that shall be the seat of government.

Search as you will, you won’t find any congressional power to promote social justice or to impose a moral standard on the nation. Unfortunately for lovers of limited government, Republicans have proven to be just as willing to ride roughshod over the Constitution as their Democrat counterparts. Former Vice President Mike Pence, whom I defended in my prior column, has now publicly called for a federal ban on abortion after 15 weeks. No matter how much you abhor abortion, it is impossible to find any words in the Constitution which give Congress the power to regulate such a medical procedure.

So regardless of how many members of Congress (or former vice presidents) tuck a Constitution in their pockets, it is also impossible to make them read it, let alone be guided by it.

As a final note, I should probably give credit to the Supreme Court for overturning the policy of affirmative action in college admissions in two separate cases last week. It turns out that all those references in the Constitution to equality and equal protection of the law actually mean something. At least they do today. But for 45 years since the court’s ruling in the Bakke case, students who were rejected for college admission because of the color of their skin were just supposed to grin and bear it. Sure, the 14th Amendment prohibits states or state agents from “deny[ing] to any person … the equal protection of the laws.” But once again the plain language of the Constitution was ignored until last week.

I would propose writing an amendment that forced elected and appointed officials of the United States to follow the Constitution as written, not the one with invisible asterisks and footnotes and a “social justice clause,” but chances are it would be found unconstitutional anyway – or at least inconvenient.