- The Washington Times - Tuesday, October 8, 2013



By Gerald Walpin

Significance Press, $13.99, 289 pages

The Constitution is under attack on two fronts. On one, proponents of ever-expanding central government see little in the Constitution that limits federal authority. On the other, the same politicians and interest groups champion broad, often newly discovered “constitutional rights” whose protection curtails the traditional power of state and local governments to enact laws intended to protect the public health, safety and welfare.

In “The Supreme Court vs. The Constitution,” Gerald Walpin’s focus is on judicial interpretations of the Bill of Rights that have circumscribed these long accepted “police powers” of state and local governments. His thesis is that our country is ill-served by Supreme Court decisions based more on the personal social, and political views of the justices than on the carefully chosen words of the Constitution.

Mr. Walpin takes his charge from Justice Samuel Alito Jr., who remarked in 2011 that “ordinary citizens should know more facts about the Constitution.” Accordingly, the author intends his book to provide “all Americans, including the overwhelming number who are not lawyers, with a simple, but not simplistic, understanding of what is happening to our Constitution.”

A harsh critic of what most would call “judicial activism,” Mr. Walpin makes clear such activism is not a phenomenon always associated with either the political “right” or “left,” or with a particular political party. Thus, he quotes President Obama’s attacks on legal challenges to Obamacare as inviting unacceptable “judicial activism,” and recalls President George W. Bush’s lament that “some judges give in to temptation and make law instead of [simply] interpreting.” The author even reminds us of President Lincoln’s warning that “decisions of the Supreme Court” could deprive “the people” of their right “to be their own rulers.”

In the early chapters, Mr. Walpin describes the Declaration of Independence and the Constitution, “the shield created to protect all average citizens from the rampage of autocratic, uncontrolled power.” He reminds us of Patrick Henry’s admonition that the Constitution “is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.” The author writes of James Madison’s explanation that “[t]he powers delegated by the proposed Constitution to the federal government are few and defined,” while those left with “the state governments are numerous and indefinite.”

The judicial branch of government, the author explains, was created as “a watchdog” to guard “against the government’s violation of constitutional protections.” The author invokes assorted legal scholars and jurists in delineating the proper standard for determining whether a law will survive constitutional challenge. For example, as Supreme Court Justice Oliver Wendell Holmes instructed, a judge must interpret the language of the law based on its “common understanding at the time of its adoption,” and not “undertake to renovate the law.”

Despite the Framers’ intentions and the teachings of authorities such as Justice Holmes, in many decisions justices have interpreted the law based on their own social and political preferences. Mr. Walpin highlights historic examples, such as Plessy v. Ferguson, the 1896 decision that upheld the “separate but equal” defense of legal racial discrimination.

In subsequent chapters, Mr. Walpin dissects a series of Supreme Court opinions that have created new “constitutional rights” in disregard of the Framers’ intentions. A former federal prosecutor with decades of litigation experience, the author sets about his task with the thoroughness and enthusiasm one would expect from a seasoned trial lawyer. He provides the reader with detailed analyses of Supreme Court decisions on Miranda warnings, the “exclusionary rule” preventing the use of accurate physical evidence in criminal trials, the death penalty and certain prison sentences, abortion, pornography and others.

Mr. Walpin is meticulous and merciless as he dismantles the judicial reasoning in opinions finding new “rights” lurking in the Constitution. His cross-examination skills shine through as he identifies inconsistencies flowing from the court’s contortions of constitutional language to achieve what it considers desirable social policy. Thus, “a minor under the age of 18 is mature enough to decide to have an abortion without parental consent,” but “because of ‘a lack of maturity’ which results in ‘impetuous actions and decisions,’ the same minor may not be subject to the death penalty for the most horrible murder.”

Significantly, Mr. Walpin also underscores points generally ignored in public advocacy. Opponents of Roe v. Wade, for example, do not challenge “the right of the people in any state to allow abortions, even on demand.” The same can be said about the death penalty and other issues.

Numerous worthy books have been published recently on threats now posed to the Constitution by all three branches of government. Readers who care about this important subject will conclude that Mr. Walpin’s book well deserves a place on this shelf.

Ray V. Hartwell III is a longtime Washington lawyer and a senior fellow of the Alabama Policy Institute.

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