Whose Constitution Is It?

Since its building was constructed in the 1930s, the Supreme Court has occupied its commanding perch directly across the street from the Capitol. The symbolism is potent: two of the three branches of government staring each other down. Save for an occasional thrust or parry, they have managed to keep a generally harmonious balance of power.

But no longer. Last month in Boerne vs. Flore, the decision striking down the Religious Freedom Restoration Act, the court fired a devastating salvo, the most brutal attack on the Capitol since the British burned it in 1812.

On the surface, the dispute is over the meaning of the “free exercise” clause of the 1st Amendment. But at a deeper level it raises what the canny House Judiciary Committee Chairman Henry J. Hyde (R-Ill.) characterizes as the most profound constitutional question of our times: whether political authority in our democracy still rests with the people.

The battle started in 1990 when the court, by a 5-4 vote, repealed an established legal test that had required the government to prove a compelling state interest before restricting religious liberty. Within three years, Jewish prisoners were denied the right to wear yarmulkes, Catholic prisoners were denied access to priests and churches were summarily denied zoning appeals.

Congress acted swiftly. In 1993, with only three dissenting votes, it passed and President Clinton signed the Religious Freedom Restoration Act, restoring the historic compelling state interest test.

But in the Boerne decision, Justice Anthony Kennedy, writing for the court, declared the act unconstitutional on the grounds that Congress had the power to “enforce” the constitutional rights protected by the 14th amendment, but not to expand them. Imagine if this decision had been made when Congress was courageously expanding civil rights to end segregation a generation ago.

Religious liberties are gravely imperiled by this decision. I’ve worked in prisons for the past 20 years and have seen how arbitrary officials can be in restricting religious freedom. But important as that is--the founders called this the first liberty--the court has raised an even more crucial issue: Who has the final word on what the Constitution means?

That sounds like a silly question, since most people, including most politicians, think the Constitution gives the Supreme Court that authority. But the Constitution is silent. Thomas Jefferson, who distrusted both federal power and judges, and his frequent opponent, Alexander Hamilton, both opposed giving the final say to the court.

It was in its own decision in 1803 that the Supreme Court awarded itself the power to declare laws unconstitutional. But no one believed that power to be final. President Lincoln, for example, refused to acknowledge the Dred Scott decision.

Only in recent years has the court flexed its muscles, asserting without challenge its authority to declare laws unconstitutional. But in Boerne the court has crossed a Rubicon, insisting that its power is absolute, that the people acting through their representatives have no business expanding constitutional protection.

This is a historic moment. Congress must act swiftly to resist this blatant usurpation of the democratic process. The easy response would be to offer a constitutional amendment, but this would be a cop-out. The amendment process, which was deliberately made difficult by the framers of our Constitution, has become a stud farm for moribund causes: Ideas sent there continue to have a good time, but their racing days are over.

No, this is a time when the other branches of government must be as bold as the court has been. And there are encouraging signs. The House judiciary subcommittee on the Constitution, chaired by Charles Canady (R-Fla.), has already served notice that Congress is not about to be rolled over by the Supreme Court. The subcommittee is considering legislative responses. One might be simply to announce that it still regards the Religious Freedom Restoration Act as the law or reenact it under authority other than the 14th Amendment. President Clinton could earn his place in history by standing firm for religious liberty, telling the U.S. attorneys that they are to regard the act as still being in effect.

No one suggests giving Congress the final say in constitutional interpretation. That would tempt political majorities to manipulate the Constitution for partisan ends. But to fail to rein in the court would ensure the imposition of an illegitimate elite consensus overriding the moral common sense of the American people.

Maybe the very unresolvability of the “who decides” question is a good thing. Let the three branches wrestle with the great questions no one has dared to ask. Perhaps in the process of that wrestling they might save the constitutional balance that has preserved this astonishingly successful experiment in ordered liberty.

One thing Congress cannot do is duck.