How the Courts Changed America

By Douglas V. Gibbs

As I write the various articles comprising my "25 Myths of the Constitution" series, a disturbing and recurring trend keeps surfacing.

Each of the concepts that I address are being argued by me from the point of view of those that "made" the law. In other words, I am basing my opinions on the intent of the original lawmakers. The myths, or the changes to the law that have people conditioned away from original intent, seem to pretty much always occur as a result of case law. The judiciary has literally interpreted the Constitution away from its original meaning and intent. The courts have changed the Constitution, making what is considered to be constitutional not based on what the Constitution says, but on the opinions of activist judges through the intricate web of case law.

The courts have no authority to alter the Constitution in this way, and the authorities they will argue that they have they gave to themselves based on the written opinions of other judges.

The root cause of this problem is a concept known as judicial review. Judicial review allows the courts to review the law to determine if it is valid as written. Sometimes, these opinions are generated as a result of lawyers exploiting perceived weaknesses in the law, creating loopholes, and the opportunity for an interpretation not in line with the original intent. From there it becomes a dog pile of opinions that ultimately changes the law into something unlike anything ever intended.

Changing the law of the land through judicial opinion is unconstitutional. The process for changing the Constitution is laid out in Article V. of that document. The only legal way to change the Constitution is through the amendment process that ultimately winds up requiring the permission of at least 3/4 of the States through the ratification process.

Changes of the Constitution through any means other than the amendment process, such as through case law, is unconstitutional.

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