The real issue, as Bork writes, is not naming "ultra-right ideologues" (Garbus' phrase), but whether "(Bush) will try to appoint justices and judges who interpret laws according to the understanding of the principles of those laws when they were enacted." This is an important point, because if laws are to be made by the courts, what is the purpose of Congress? Are we to be guided by the idea enunciated in 1803 at the dawn of our nation by Chief Justice John Marshall: "The government of the United States has been emphatically termed a government of laws and not men"? Constitutional attorney John Whitehead has written, "This meant that even the state, its agencies and its officials were under the law, not above it."
The opposite (and currently prevailing) view of the Constitution is the judicial philosophy of Justice Felix Frankfurter. Speaking of Supreme Court justices, Frankfurter said, "It is they who speak and not the Constitution." That view was echoed in a 1958 Supreme Court decision (Cooper vs. Aaron): "Article VI of the Constitution makes the Constitution the 'supreme law of the land' .. It is emphatically the province and duty of the judicial department to say what the law is .. It follows that the interpretation of the (Constitution) enunciated by this Court . is the supreme law of the land .."
When the Constitution is not the supreme law, the Supreme Court will inevitably come to see itself as the supreme law. Charles Evans Hughes, who became chief justice in 1930, remarked earlier: "The Constitution is what the judges say it is."
President Bush needs to give the public a brief history lesson as he nominates federal judges, and especially Supreme Court justices, if he is to counter the disinformation campaign now being prepared by those who would discard the Constitution and make up the law as it suits them.
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