Written and submitted by Zelda Lily guest writer Rabbi Moshe Averick
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 …