Endangered Constitution

August 12, 2003 -- A Minnesota court has just placed the interests of two species of birds and one of fish over considerations of shipping and flood control, which benefit human beings. Judge Paul Magnuson has ruled that to comply with the Endangered Species Act and to protect the habitats of those creatures the Army Corps of Engineers must lower the level of the Missouri River.

Now shift focus to Washington. Supreme Court Justice Ruth Bader Ginsburg told the American Constitution Society that “your perspective on constitutional law should encompass the world.” She said in a speech that American judges “are becoming more open to comparative and international law perspectives” and that “Our island or lone ranger mentality is beginning to change” -- trends that Ginsburg applauds. Ginsburg was thinking in particular of attitudes toward gay rights and the death penalty, which, whatever ones position is on these issues, at least concerns human beings.

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Our laws are meant to protect the life, liberty and property of human beings, not dumb – even if cute and cuddly – animals.

Yet both of these pronouncements from prominent jurists point to similar philosophical errors that are responsible for our diminishing freedom. First, Ginsburg, in effect, advocates bending the U.S. Constitution in light of the attitudes of foreigners. The legislators who make the laws should be informed by any valid argument, no matter what its source. But the purpose of a judge is not to make the law but to judge whether a law is consistent with the Constitution. They must understand that the Constitution is a document of limited and enumerated powers given to governments for the purpose of protecting the freedom of individuals. The ninth amendment to the Constitution is quite clear in stating that, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In other words, I need not find a “right” in the Constitution to justify my freedom. Rather, the government needs to find a specific granted power to stop me from acting.

That brings us back to Minnesota. If the judge had been paying attention to the Constitution that he swore to uphold, he might have noted that our laws are meant to protect the life, liberty and property of human beings, not dumb – even if cute and cuddly – animals. The Endangered Species Act cannot pass Constitutional muster unless it is a viewed from a non-objective perspective, for example, evaluated in light of the latest social trend or Zeitgeist of the moment.

And let’s not forget to blame the legislators who passed or have failed to repeal such laws. Not only do they ignore the purpose of government and the Constitution, they pass vague, open-ended and contradictory – read non-objective -- legislation that make it necessary for judges to untangle the mess. Only when legislators and judges recognize that laws are meant to protect freedom and must be clear and objective will we begin to restore a semblance of a government that is our protector rather than our persecutor.

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