September 17, 2004

September 17, 2004 | Commentary on

Bringing Justice to the People

As we celebrate the 217th anniversary of the signing of the U.S. Constitution, it's easy to forget how revolutionary its underlining principles really were.

Government by the consent of the people ... political power granted through a written document ... recognition of the truth that human liberty existed before government and that government must respect that liberty ... a legislative branch, in which the people are directly represented, dominant over the executive branch and the judicial branch. As political scientist James Q. Wilson once wrote, "no government [had ever before] been organized on the basis of these principles."

The essential problem confronting the founders as they gathered in Philadelphia in 1787 was how to devise a government strong enough to preserve order but not so strong as to threaten liberty. Their solution was a complex system of checks and balances among the three branches of the national government and between the national government and the states, based on a written constitution.

But what happens when the checks and balances weaken -- when, for example, one of the branches assumes too much power or the national government dominates the states? And what happens when the Constitution itself is so (mis)interpreted as to allow the wishes of the majority to be consistently ignored? That is where we are today in much of America.

The most disturbing development in American law in modern times has been the transformation of the U.S. Supreme Court from judicial arbiter into avid policymaker. In its post-World War II activist phase, the Court has interpreted the Constitution so as to:

  • Ban prayer in public schools and crèches in public buildings;
  • Require that children be bused miles away from their neighborhoods;
  • Declare there is a constitutional right to have an abortion;
  • Protect pornography under the rubric of free speech;
  • Permit Congress to regulate the nation's non-economic as well as economic activity; and
  • Allow the guilty to go unpunished when there are technical flaws in the gathering of evidence.

Supreme Court justices have either discovered rights in the Constitution that do not exist or followed the arrogant lead of Chief Justice Charles Evans Hughes, who remarked, "We are under a Constitution, but the Constitution is what the judges say it is."

A strong, principled reaction was inevitable. Starting 30 years ago, the freedom-based public-interest law movement set out to restore the original meaning of the Constitution, oppose judicial activism, and challenge the radical agenda of liberal litigators. Dedicated young lawyers took up the cudgels against an array of well-financed, well-organized attorneys. And, notes experts such as former U.S. Attorney General Edwin Meese III, they have stopped Goliath again and again. They have:

  • Allowed parents to take their children out of poor-performing public schools and send them to better religious schools with public vouchers;
  • Permitted students to hold after-school Bible study classes in public schools and universities;
  • Let the Boy Scouts dismiss gay leaders from their ranks;
  • Eliminated speech codes that punish "offensive" speech on college campuses;
  • Given workers the right not to join a union as a condition of employment; and
  • Protected property owners from unfair permit conditions set by government.

Tragically, increasing numbers of Americans are being shut out of our legal system. They are denied justice because of the high costs and frequent delays of litigation. It is these "powerless" citizens -- hard-working, tax-paying, middle-class Americans -- that freedom-based public interest lawyers are committed to representing.

These freedom lawyers, these modern-day Sons of Liberty, are guided by the principles of the U.S. Constitution, as originally construed, and are dedicated to preserving the political miracle that occurred in 1787 in Philadelphia -- the creation of a government of laws and not of men. Their reward, points out Ed Meese, has not been massive fees but the knowledge that they have contributed to individual liberty, limited government, free enterprise and a stronger family life -- the very things our founding fathers hoped the Constitution would ensure.

Lee Edwards, Distinguished Fellow in Conservative Thought at The Heritage Foundation, is editor of the just-published book " Bringing Justice to the People: The History of the Freedom-Based Public Interest Law Movement" (Heritage Books).

About the Author

Lee Edwards, Ph.D. Distinguished Fellow in Conservative Thought, B. Kenneth Simon Center for Principles and Politics
B. Kenneth Simon Center for Principles and Politics

First appeared on Townhall.com