TAKE IT TO COURT: The Enumerated Powers Solution for Limited Government

The Republican Congress is history.  While I will work to restore Republicans in both the House and Senate, there are many worthwhile objectives which they failed to accomplish while in power.  Further, there are many worthwhile objectives which they failed even to address.

For example, they passed President Bush's "No Child Left Behind Act of 2001," Pub. L. 107-110, although one may search in vain among the enumerated powers granted to Congress in Art. I, section 8 of the Constitution for the authority to legislate with respect to education.  

The question is, what may we do now, other than prepare for the 2008 elections, to advance a conservative agenda? 

The answer is go to court.  Liberals have been doing this for a long time.   To a great extent, they have succeeded in their objectives.  I will explain how they did it.  Then how we can do it too.

While in law school I took a course in appellate advocacy, i.e., how to appeal the decision of a lower court.  The course was taught by the State Appellate Defenders Office.  I learned from the Director of the Office how to change the law. 

Usually, an appellate court will assume that the facts were correctly determined in the lower court.  So the appeal is limited to the question of whether the law was correctly applied by the lower court.

The appellate attorney decides which legal issues to raise before the appellate court.  It is not uncommon, after the appellate attorney has decided which issues are likely to succeed on appeal, to add an issue or two that is unlikely to succeed.  This is done for several reasons. 

In the case of the Appellate Defenders Office, these extra issues were decided upon by frequent conferences of the attorneys in the Office.  They would settle on one legal issue which, in their opinion, "needed reform." They would then look for opportunities to place the issue in an appellate brief. 

At first, judges would be unfamiliar with the new issue and dismiss the argument.  As the issue kept coming before them, however, they would begin to understand the argument.  Eventually, it was hoped, the courts would become persuaded and accept the argument. 

This is important because an appellate court, when it issues a published opinion, sets a precedent which is binding on all lower courts.  This is known as "case law."

What is needed is the establishment of a legal think tank specifically focused on challenging governmental action which is outside of the enumerated powers granted by the Constitution.  The think tank could establish a legal journal and use this to publish its own research, as well as that of other scholars, on such issues.

In every liberal legal victory known to me, the victory has been preceded first by numerous law review articles, then by constant repetition in the courts until the arguments have been refined and the courts educated. 

The first step is always to publish scholarly articles setting forth the arguments which would be used in court.  The number of issues which might be addressed would be limited only by the creative legal minds addressing them.  Further, as one issue is developed, argued, and finally adopted by the courts, this will present new opportunities to use the new law in new and creative ways

This effort must be matched by an effort to seek out opportunities to raise, in court, the issues which have been developed.   I hesitate to offer examples.  Legal issues are fact specific.  We know what we would like to accomplish, but cannot know when, or under what circumstances the situation will be ripe to begin the quest.  This must, necessarily, wait until the situation develops as to each issue. 

I know that many conservatives are concerned, rightfully, over the composition of the courts.  However, a good case, competently presented, and supported by solid research and careful argument, is more likely to prevail before a bad judge than is a poorly presented case to prevail before a good judge. 

To the extent that we are unable to control the selection of judges, it is all the more important for us to control the selection of the issues and to prepare the arguments.

Finally, we need to be patient.  The vast body of case law in America, which is a heritage of the British Common Law, is old and rich in precedent.  Yet almost every precedent which it contains, however sensible it may seem to those to whom it is familiar, sounded peculiar and exotic to the first judge to whom it was presented. 

It was almost always rejected the first time it was seen.  But diligence and persistence, coupled with a sound argument, will eventual prevail and reverse bad precedent. 

This is especially true because, while liberals have to pervert and distort the clear meaning and purpose of the Constitution, conservatives do not.  Restricting governmental action only to the enumerated powers given to it by the Constitution can be achieved – if we have the same unrelenting and systematic patience and persistence liberals have shown in the courts.

Take it to court – that's how we'll achieve truly limited government in America.

James H. Warner recently retired as an attorney in the Office of General Counsel at the National Rifle Association.  He served as a domestic policy advisor during President Reagan's second term, where he was responsible for ending the 55 m.p.h. national speed limit. He represented in the U.S. Supreme Court, one of the Sheriffs who successfully challenged the Brady Law, and is the author of two law review articles on constitutional issues. Serving as a Marine aviator in Vietnam, his aircraft was shot down over North Vietnam.  His Communist captors held him in the "Hanoi Hilton" and other prisoner-of-war torture camps for 5½ years.