What Will Next Week’s Constitution Day Celebrate?

By David Fowler  |  FACT

September 17th is a special day, designated by Congress as Constitution Day. It’s the date, when, in 1787, following a speech by Benjamin Franklin, 39 delegates to the Constitutional Convention endorsed and submitted our Constitution to the Congress of the Confederation. It was then the crowning achievement in the art of civil government, but perhaps it would now be appropriate to set aside another special day in connection with it.

I am no expert historian when it comes to the origin and development of civil government and the more modern concept of the state, but I do believe most would agree that the U.S. Constitution articulated what was then the most profound structure of civil government and set of guiding principles ever reduced to pen and paper.

But, today, too few know much about how our Founding Fathers intended for that structure and those principles to work, and few of our Founding Fathers would today recognize what we understand our Constitution to be. For one thing, our Founding Fathers would have never imagined that the other two branches of the federal government or that the governments of the states would now be so obliging and deferential to the dictates of the U.S. Supreme Court.

The U.S. Supreme Court’s Lie

Space does not allow me to recite some of the conflicts that have arisen when the other political bodies in our country thought the U.S. Supreme Court was out of line. But, for the most part, that all changed on another September day, the 12th, back in 1958, when the U.S. Supreme Court unanimously agreed to assert a lie as the law of the land.

It was on that day that the U.S. Supreme Court, in response to the school integration issues still taking place in Arkansas following Brown v. Board of Education in 1954, said, “the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” The case was Cooper v. Aaron.

Years later, former U.S. Attorney General Edwin Meese, referring to Cooper, correctly said, “Constitutional interpretation is not the business of the court only, but also, and properly, the business of all branches of government.” Meese further correctly said the decision in Cooper was “obviously . . . binding on the parties in the case; but the implication that everyone would have to accept its judgments uncritically, that it was a decision from which there could be no appeal, was astonishing.”

Cooper’s assertion and our failure to teach our children any differently has led to the myth of judicial supremacy and to what Meese called the era of the “imperial judiciary.”

To make such matters worse, one current justice on our U.S. Supreme Court has been willing to express publicly her disdain for our original Constitution, Ruth Bader Ginsburg. She told the people of Egypt back in 2012, when they were drafting their own governing documents, that she “would not look to the U.S. Constitution if [she] were drafting a constitution in the year 2012.” She recommended things like the European Convention on Human Rights.

How Did We Get Here?

To appreciate what has happened from 1787 to now, we have to understand that the U.S. Constitution was framed in the context of a certain view about the nature of the cosmos, namely, that it was the Creation of God and that there were laws given by the Creator by which the civil government’s laws, including the U.S. Constitution, would be understood, interpreted, and applied.

But in 1938, in another case, Erie Railroad v. Tompkins, the U.S. Supreme Court followed the lead of atheist Justice Oliver Wendell Holmes and jettisoned this previously held understanding of the cosmos and law. There is no such transcendent law, the Court said. Not surprisingly, 77 years later, we learn that a Constitution loosed from its original mooring embodies a “liberty” to have a state license a relationship between two men as a “marriage.”

A New Constitution Day?

The Constitution, of course, is still with us. However, because the words of the 1787 Constitution we are supposed to be celebrating are no longer understood and interpreted according to the context in which they were originally used, we really no longer celebrate that Constitution. That Constitution passed from the scene on September 12, 1958.

Maybe Congress should set aside that day both to memorialize the old Constitution and to celebrate the new one we have allowed the U.S. Supreme Court to “adopt” for us.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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