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The Constitution: The Crown Jewel of the Republic

If there is one thing business tycoon-turned-President Donald Trump knows, it’s value.

His remarks during the recent Supreme Court Justice nomination announcement ceremony were significant in that he revealed what he perceives as being among the most valuable assets that exist in the world today.

“The crown jewel of our republic,” Trump reflected, is “the Constitution of the United States.”

Trump explained that the decision of who is “entrusted with the safeguarding of the crown jewel” as a member of the Supreme Court is the most important and “profound” that a president (with the Senate’s confirmation) will make, “other than matters of war and peace.”[1]

The actual Crown Jewels of the United Kingdom are a collection of 140 royal ceremonial objects containing 23,578 precious stones, including Cullinan I, the largest clear-cut diamond in the world at 530 carats, or 106 grams.

The collection is kept in the Tower of London and will continue to accumulate and persist as a symbol of 800 years of monarchy.

In short, the Crown Jewels are priceless.

Trump, however, believes America is in possession of something even greater.

“Our nation’s proud heritage,” he proclaimed, is “the rule of law. . . It is the cornerstone of our freedom.”

Trump added that “the best defense of our liberty” is to have “judges that apply the Constitution as written.”[2]

Accordingly, his choice to be the next Supreme Court nominee, Brett Kavanaugh, has a “straightforward” judicial philosophy: “A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written, and a judge must interpret the Constitution as written, informed by history and tradition and precedent.”[3]

Kavanaugh’s view on the proper role of the Supreme Court is informed by what he calls “one of the most important legal articles of all time” written by his “first judicial hero,” former Chief Justice William Rehnquist, who Kavanaugh says played a massive role in righting “the ship of constitutional jurisprudence.”[4]

In that article, titled The Notion of a Living Constitution, Justice Rehnquist warned against the “freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition,” no matter how “socially desirable the goals sought to be advanced.”[5]

The Supreme Court, he explained, is oftentimes urged to act “as the voice and conscience of contemporary society,” and “the measure of the modern conception of human dignity.”[6]

Rehnquist observed that this particular conception of the Supreme Court, however, transforms the fundamental character of our Constitution into a “living constitution with a vengeance” that is “genuinely corrosive of the fundamental values of our democratic society.”[7]

“It makes possible an individual's persuading one or more appointed federal judges to impose on other individuals a rule of conduct that the popularly elected branches of government would not have enacted and the voters have not and would not have embodied in the Constitution.”[8]

Rehnquist keenly recognized that the ideal of judicial review is actually “antidemocratic and antimajoritarian” and requires “some justification in this Nation, which prides itself on being a self-governing representative democracy.”[9]

We tend, instead, to unwittingly impute the Supreme Court with broad authority and look to them as “a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country.”[10]

Such, Rehnquist worried, puts the other branches “in the position of a television quiz show contestant.”[11]

“When a given period of time has elapsed and a problem remains unsolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.”[12]

The decision-making process in America, however, is supposed to be difficult, Rhenquist concluded, and “it should not be easy for any one individual or group of individuals to impose by law their value judgments upon fellow citizens who may disagree with those judgments. . . just because the individual in question is a judge.”[13]

As Rehnquist pointed out, Abraham Lincoln in his First Inaugural Address had the identical concern against blindly entrusting the government into the hands of the Supreme Court and turning it into an “eminent tribunal.”

“The people will have ceased to be their own rulers,” Lincoln warned.[14]

The true nature of the Constitution, according to Rehnquist, “was designed to enable the popularly elected branches of government, not the judicial branch, to keep the country abreast of the times” and make “the hard choices.”[15]

Framed in terms of “majestic generalities”[16] of authority granted to Congress and the Presidency, “the Constitution that [the framers] drafted was indeed intended to endure indefinitely.”[17]

The proper vision for the role of the Supreme Court and other safeguards for individual liberty demand “wide social acceptance,” according to Rehnquist, “simply because they have been incorporated in a constitution. . . a fundamental charter that had emanated from the people,” and not “because of any intrinsic worth nor because of any unique origins in someone's idea of natural justice.”[18]

With this tradition in mind, it is easy to see why President Trump believes the Constitution to be one of the world’s most valuable assets, and that “what matters is not a judge’s political views but whether they can set aside those views to do what the law and the Constitution require.”

“I am pleased to say that I have found without doubt such a person [in Judge Kavanaugh],” he boasted.[19]



[1] The New York Times. “Trump Announces Brett Kavanaugh as Supreme Court Nominee: Full Video and Transcript.” The New York Times, The New York Times, 10 July 2018, www.nytimes.com/2018/07/09/us/politics/trump-supreme-court-announcement-transcript.html.

[2] Id.

[3] Id.

[4] Kavanaugh, Brett M. “From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist.” 2017 Walter Berns Constitution Day Lecture. 2017.

[5] William H. Rehnquist, The Notion of A Living Constitution, 54 Tex. L. Rev. 693, 693–706 (1976).

[6] Id. at 695.

[7] Id.

[8] Id. at 706.

[9] Id. at 695-96.

[10] Id. at 698.

[11] Id. at 700.

[12] Id.

[13] Id. at 705-06.

[14] Id.

[15] Id. at 699.

[16] Id. at 694.

[17] Id. at 694, 699.

[18] Id. at 704, 697.

[19] The New York Times.

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