Sept. 17 marks the 225th anniversary of the U.S. Constitution's approval by the Constitutional Convention in Philadelphia. The need properly to understand and preserve the Constitution has never been greater.
Even though 39 of the 42 convention delegates signed the newly drafted constitution, controversy had just begun. The people of Rhode Island, the only state not to send delegates to the convention, voted 10-to-1 against ratifying the charter. It was ratified when New Hampshire approved it in June 1788 with only 55 percent of the vote; ratifying conventions in Massachusetts, Virginia, and New York approved it by an even slimmer margin.
National constitutions have lasted an average of only 17 years since ours was ratified. In contrast, the U.S. Constitution is the oldest (and shortest) written charter, and America's founders wrote it down for a very practical reason. As the Supreme Court put it in the famous 1803 case of Marbury v. Madison, the Constitution is written so that its rules for government "may not be mistaken or forgotten."
The American people alone may determine what the Constitution says, but the Constitution is really the meaning of its words. President George Washington said in his 1796 farewell address that the heart of our system of government "is the right of the people to make and alter their constitutions of government." For the people to control the Constitution, it must not say what they said but it must mean what they meant.
What difference does this make? In June, the Supreme Court upheld Obamacare's requirement that individuals must purchase health insurance, the first time in history that Congress enacted such a purchase mandate. Congress said that those who fail to purchase health insurance must pay not a tax, but a penalty. The Supreme Court, however, twisted the meaning of a few words and claimed to uphold not a penalty, but a tax. That's all it took for five Justices to engineer one of the greatest expansions of federal government power since the Great Depression.
The Constitution is the rulebook for government, which includes judges. If the Constitution means whatever judges say it means, then government can set rules for itself. This is why every time the Supreme Court makes up something that is not in the Constitution at all, or changes the meaning of something that is, the Court weakens the Constitution itself.
Does it make any sense, for example, that judges claim to find unwritten provisions in our written Constitution? When the Supreme Court in 1965 said there is a right to privacy in the Constitution, for example, it claimed to find that right in some kind of "penumbra," or shadow, emanating from the Bill of Rights. It takes more than shadows to limit government and protect our liberty.
America's founders warned of this very danger. Thomas Jefferson, for example, wrote that if judges control the Constitution's meaning, it would become "a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please." When judges take what the people wrote and what the people meant and remake it in their own image, judges become the supreme law of the land.
James Madison said in his 1810 State of the Union Address that "a well-instructed people alone can be permanently a free people." This Constitution Day marks when a piece of paper was signed, but is also an opportunity to again insist that the Constitution belongs to the people.