The Constitution is the supreme law of the land. Article VI says so.
So what does that mean? What is law anyway? Why do we have to have laws? Isn't it enough to have Czars and other government officials to tell us what to do?
Lots of Americans are leery of the law. To them, law is mysterious, opaque. The domain of lawyers and judges who talk a hokus pokus language that nobody understands.
Thomas Aquinas taught that law is a rule of reason, ordained and promulgated by proper authority and directed to the common good.
You can't have law without words. The rule of reason has to be expressed in words. Words that say what the law giver means. Words that can be understood by the people who see them or hear them.
That's why Hammurabi's Code was inscribed on pillars in the town square and why Moses came down from Mount Sinai with words on tablets of stone.
It's axiomatic that in the United States, we have government of laws and not of men. Our rights and duties as citizens are spelled out in words, printed and published in books. Available on the Internet.
We have a tradition, inherited from our English forebears, called the Common Law. Sometimes it is called 'Judge made law' because it grows out of the decisions of courts in individual cases.
Human life is very complicated. Things keep happening that never happened before. People keep getting in disputes that are not easily settled by reading the laws that have already been written by the legislature.
So judges have to figure out what should happen. And when they do, they write their opinions in words that get printed in books, so that next time something like that happens they'll know what to do.
Old Judge Tom Cooley, the 19th Century intellectual heavyweight who wrote a treatise on Constitutional Limitations, made it very clear that constitutions are not supposed to be changed by the common law.
In fact he said that any judge who tried to change the meaning of a constitution to "keep up with the times" would be guilty of violating the oath of office.
Article VI requires that judges swear to support “this constitution.” What else does “this constitution” mean except the very words being read?
Now comes Yale University Law School with a different idea.
Yale’s Dean, Robert Post, welcomed participants in a symposium entitled “The Constitution in 2020” by announcing that there is a New Haven school of constitutional theory which holds that the charter of our nation written in Philadelphia in 1787, while intended to be enduring and permanent, is being changed all the time by a process of metamorphosis.
The folks at Yale seem to think James Madison and company concocted a caterpillar which they can coax into a butterfly with a barrage of academic double talk.
Even after throwing a fig to John Marshall by quoting from Marbury v Madison,
“ The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?”
Dean Post acknowledged that while the constitution was intended to be fixed, “we presuppose that it will change.”
Change without being amended. Change without what George Washington called “the authentic act of the whole people.” Change without ratification. Change without the consent of the governed. Change that only scholars and law professors can predict.
I don’t buy it.
I don’t think the Yale Law School faculty speaks for the American people.