The balance of power

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On this date, 217 years ago in Philadelphia, the Constitutional Convention approved the new Constitution of the United States and sent it to the states for ratification.It remains the oldest operative written constitution in the world. Americans understand the importance of the nation's charter to our lives and our rights. But what we sometimes fail to recognize is that only by appointing the right kind of judges can we ensure the continued integrity of this cherished document.

Believing that the people would embrace the Constitution if they understood it, America's founders ensured ratification by writing essays about its principles. Those essays, collectively called the Federalist Papers, were then published in newspapers but today are routinely ignored even in America's law schools. There are other signs that we are losing such an understanding of our nation's most important document. Alarmingly, twice as many Americans know the number of Rice Krispies characters than know the number of Supreme Court justices. Fifty percent more teenagers can name the Three Stooges than can recite the first three words of the Constitution, "We the People."

So it is little wonder that many misunderstand the role of the three branches of government -- especially the judiciary. This lack of understanding and attention leaves our liberty at risk.We must insist that just as "we the people" established the Constitution, only the people can change it.And we must insist that judges adhere to this principle as well so that judges are subject to, not the masters of, the Constitution.

Unfortunately, for the last several decades, many judges have been moving in the other direction, their power expanding as they make law, and even amend the Constitution, from the bench. They have radically changed the balance of power between the federal and state governments, effectively rewritten statutes, and even created new constitutional rights. This trend threatens liberty by taking away the people's power to govern themselves.

Yet judges take the same oath as other public officials, to support and defend "the Constitution of the United States."Not a Constitution of their own making, but the Constitution.The Constitution they swear to support and defend is more than ink blots forming words on a page.The Constitution is both words and meaning; those who made it law wrote it down precisely because words mean something.Simply put, America needs judges who genuinely embrace the oath they take, who believe there is such a thing as "the" Constitution of the United States, a Constitution they did not make and cannot change.

The battle over judicial appointments today is a battle over how much power judges should have in our system of government. If judges are masters over the charter they have sworn to support, then "we the people" are not. Many argue for a stable, secure, even a rigid Constitution.Those who say that only when the people seek to amend it, but who look the other way as judges commit drive-by amending on a daily basis, get it exactly backward.

Either the Constitution is law that governs government or it is not.If it is, then it governs the judiciary as well as the other branches, for they are all part of the same government.Either the people and their elected representatives are the lawmakers or they are not.If they are, then only they can change the words or the meaning of the Constitution.Either the Constitution is the supreme law of the land or it is not.If it is, then it cannot be manipulated and morphed to achieve a purely political agenda.These are among the most fundamental questions we can ask today, and our liberty depends on the right answers.

In Lewis Carroll's classic, "Through the Looking Glass," Humpty Dumpty asserted that "when I use a word, it means what I choose it to mean, neither more nor less." Children, speeding motorists, even presidents may want to use this to their advantage. But when judges look at the Constitution and say "it depends," we the people lose our liberty.

The real question is what really happened in Philadelphia 217 years ago. The Constitution was born that day.We must once again embrace what the Constitution really is and who we the people really are, and insist that judges remember the difference.

Sen. Orrin G. Hatch, Utah Republican, is chairman of the Senate Judiciary Committee.