Do you know who the "Father of the Bill of Rights" was? Everyone knows that George Washington was the "Father of Our Country." And James Madison is renowned as the "Father of the Constitution." But who was the "Father of the Bill of Rights"?James Madison was instrumental in getting the Bill of Rights adopted, but many historians give primary credit to George Mason, who developed the ideas in the Bill of Rights, and agitated for their inclusion in the Constitution. Mason wrotethe Virginia Declaration of Rights, refused to sign the original Constitution in part because it lacked such a statement, and urged ratifying states to insist on it. The Bill of Rights is based on Mason's earlier Virginia Declaration of Rights.On May 8, presidential candidate Barack Obama described how judges should interpret the Bill of Rights:What you're looking for is somebody who is going to apply the law where it's clear. Now, there's going to be those 5 percent of cases or 1 percent of cases where the law isn't clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings. And, in those circumstances, what I do want is a judge who's sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power, and, as a consequence, can't protect themselves from being — from being dealt with sometimes unfairly, that the courts become a refuge for judges.In contrast, George Mason said (in 1787) that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course" (emphasis added). Ed Whelan recently pointed out at Bench Memos that "in cases in which a statute is being challenged as violative of the Constitution, a justice who ultimately finds it unclear whether the statute in fact violates the Constitution ought—under principles of judicial restraint—to let the statute stand." That's how the framers meant the Bill of Rights to be applied, and it's really the only way to preserve government by the people, rather than government by judiciary.Obama and others often say that if the Constitution and Bill of Rights were interpreted with restraint, then the Court never would have issued an opinioin like Brown v. Board of Education. Obama said it again on May 8. But it's not true. In his book "The Tempting of America" (page 82), Robert Bork explained as follows:By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases . . . The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.Brown was not a close case.read more
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