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Bill Graves Explains the Constitution in New Book

By: Steve Byas

Prudent Jurisprudence: The Constitution’s Framers & the Supreme Court, by William D. Graves,

Coulterville California: Center for Cultural Leadership, 2019, 406 pages, paperback.

Bill Graves served 24 years in the Oklahoma House of Representatives, where he had the highest-ranking score on The Oklahoma Conservative Index, published by the Oklahoma Constitution newspaper, more times than any other legislator. But Graves was more than just a vote in the Legislature, he was, at all times, a principled leader in fighting for the concepts of constitutionalism, limited government, ordered liberty, and the values of America’s Founding Fathers. He carried these values over into the courtroom, where he served 12 more years as a district judge.

Now, Graves shares these values in book form, in a collection of articles he penned over the years, in law journals, scholarly journals, and popular articles. Constitutional law professor John Eidsmoe said in the Foreword, “As a trench warrior, he can be trusted to faithfully defend Christian liberty and limited government as guaranteed by the Constitution. Prudent Jurisprudence stands out, first, because of Bill’s tireless research. With a jeweler’s precision, he carefully documents his assertions with meticulous footnotes from reliable sources.”

The vast collection of quotations and sources Graves cites are, by themselves, worth obtaining this book as a valuable resource for every informed American who loves constitutional principles. The articles form the 23 chapters in the book, and some of the material sometimes overlaps. In his chapter, “The Constitution & Judicial Supremacy Obergefell et al vs. The Original Understanding,” he quotes James Madison that the proper way to interpret the Constitution is to maintain consistency with original meaning of its words used since it was in that sense that “the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.”

Alas, not only do members of Congress and presidents ignore the clear wording of the Constitution they are sworn to protect, judges rarely cite the document in their decisions, choosing to quote other judge’s decisions about it. Graves charges that this is itself a rather selective process, blaming much of such judicial tyranny on the concept known as “substantive due process.”

According to Graves, substantive due process has no constitutional basis, but is rather “a court-created distortion of procedural due process (which governs court proceedings) by which Justices declare a law unconstitutional based on their personal, moral, economic, or political beliefs or unreasonableness.”

This theme – that judges routinely substitute their own view on what the law should be, rather than what it actually is – runs through the book in all the various articles, and Graves compiles a mountain of evidence to prove his contention. He cites James Madison: “There can be no liberty if the power of judging be not separated from the legislative and executive powers.” Baron Montesquieu is quoted, as well: “When the legislative and executive powers are united in the same person or body, there can be no liberty … Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.” How prophetic.

Graves also attacks the idea that judicial decisions are somehow the “supreme law” (rather than the Constitution itself), citing Alexander Hamilton who said any federal actions – including decisions of judges – not in pursuance of constitutional powers are but invasions of the states’ powers and “merely acts of usurpation, and will deserve to be treated as such.” Graves contends that courts are not to make the “law of the land,” but rather the “law of the case.” He adds, “It [the Supreme Court] has no power to legislate laws or be a sitting constitutional convention. To try and do so is to usurp what is not the Court’s. It has not express constitutional authority to claim its opinions are laws and the sole and exclusive meaning of the Constitution.” He then cites Abraham Lincoln, who argued that while Supreme Court decisions are “binding” on the parties in a case, their ruling “may be erroneous.” Lincoln noted this “evil effect” of an erroneous ruling is limited “to that particular case.”

Thomas Jefferson was the president who most understood the danger of a federal judiciary that fails to follow the written Constitution. Jefferson said, “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one in which would place us under the despotism of an oligarchy.” Graves comments: “If Jefferson thought the federal judiciary in his day was out of hand, he would be spinning in his grave at what it has done and is doing in modern times.”

How did this idea that judges can simply substitute their own views for that of the legislature, or even of the Constitution itself ever take root? Graves argues that much of this is due to the widespread acceptance in law schools of the Darwinian theory of evolution. “Evolution,” Graves explained, “in the name of progress, promotes constant, inevitable change divorced from any conception of God.” But, such a concept in the field of law “has resulted not in progress,” Graves notes, “but rather the destruction of the principled foundations of our laws.”

Darwin’s book, Origin of Species, was published in 1859. In the 1870s, Christopher Langdell, dean of Harvard Law School, began to apply Darwinian thought to legal education, Graves explains, through the “case method” of teaching law rather than using the traditional method as established by William Blackstone. (Blackstone taught that a judge’s opinion in an appellate case was not a source of law, but rather an evidence of law, which preceded the case).

No short review can do this book justice. In it, Graves tackles a multitude of questions, including the question of “evolving standards” and the death penalty, the use of nullification by the states to defend themselves from federal usurpation, and the uses of the general welfare clause, the necessary and proper clause, and the commerce clause to expand federal powers at the expense of the states.

The reader who purchases this book will find it an indispensable reference work on the Constitution and the proper role of government.

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