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September 16, 2012

On Constitution Day, Preserving our Founding Document

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Two hundred and twenty-five years ago, America's founders penned the United States Constitution. Today, it stands as the world's oldest national constitution still in use. It is also the shortest constitution, and therein lies its brilliance.

Rather that concoct a detailed recipe covering every possible eventuality, the founders instead articulated a set of stable principles that provide a timeless guide for good governance, enduring and worth preserving.

The document contains many innovative principles, from checks and balances to the separation of powers. But perhaps its most vital, yet underappreciated, principle is devotion to the rule of law. A written constitution guides and directs the application of law in a way utterly unlike oral guidance. It reminds us that the certainty and consistency of legal application is essential.

Today, disagreements about the role of judges mark a great divide between our two political parties' approach to the judicial process. As Alexander Hamilton said in the Federalist Papers, law is about the exercise of judgment and not will. Judicial activism is best understood as substituting judicial opinion for the command of law. The law is not an infinitely malleable tool. Rather it is a concrete set of rules based on the text of the Constitution and laws with meanings fixed at the time of their adoption.

Yes, hard cases sometimes arise when applying those texts. But words, in context, have real, binding and correct meanings. Judges should aim to discern and apply the original public meaning of the text at issue, rather than read into the words whatever they want them to mean.

The dangers of judging unconstrained by the rule of law are clear. When judges contort the text of the Constitution to reach a preferred policy result, they are substituting their own judgment for that of the people's representatives -- the legislature or the Framers. More importantly, they are subverting fundamental concepts of ordered governance. Democracy demands that judges confine themselves to a narrow sphere of influence -- that is why the late Alexander Bickel called the judiciary the "Least Dangerous Branch." In a world governed by a proper conception of their role, judges don't play at being legislators -- they leave that job to our elected representatives.

And that, after all, is the most fundamental aspect of constitutional governance -- we elect our representatives. And if we do not approve of the policies they adopt, we can elect new ones. Judges are protected from the vagaries of political winds by virtual lifetime tenure, but they become an imperial judiciary if they take advantage of their position to abuse precedent and impose their personal policy preferences on the people.

The Constitution of the United States of America has endured over two centuries. Yet modern liberalism and activist judges have rejected America's core principles, denigrating those constitutional rights with which they disagree, and making up others. The future of liberty depends on America reclaiming its constitutional first principles.

True conservatives seek to change America's course by restoring the courts to their constitutional role -- to protect individual liberty, property rights and free enterprise, and to enforce the constitutional limits on government. On the 225th anniversary of the Constitution's enactment, it is a good time for citizens to reflect on the genius of our Constitution and the imperative of the rule of law.

Former U.S. Attorney General Edwin Meese III is chairman of the Heritage Foundation's Center for Legal and Judicial Studies, which is hosting a "Preserve the Constitution" lecture series this month.

First appeared in The Examiner.

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