Frank Miele: We need a constitution that means what it says



Some U.S. senators have famously kept a pocket Constitution handy to use as a prop at political rallies; a few may have even read it. But at this point in American history it no longer matters whether they, or anyone else, can read the words of the Constitution because the words no longer mean what they say.

Take, for instance, the Supreme Court’s ruling last week that state legislatures do not have the sole discretion to determine how federal elections will be run in those states. Instead, state courts are given veto power over the decisions of the legislature.

The mainstream media (and of course their Democratic Party allies) celebrated the court’s decision in Moore v. Harper that rejected the so-called “independent state legislature” theory. The New York Times called the theory “dangerous.” Vox said the ruling was a “big victory for democracy.” Those who supported the independent state legislature “theory” were called extreme, fringe, radical, and worse. In other words, they were Trump supporters.

The only problem is that if the theory is extreme, then so is the U.S. Constitution, because no matter how much the 6-3 majority insists otherwise, it isn’t a theory at all. It is the plain language of the Constitution. Check it out for yourself.

Article 1, Section 4 of the Constitution says specifically, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

It is not the governor or the courts or even the people of the state which set election rules, according to the Constitution, but the legislatures. Mind you, the state legislatures are not entirely unchecked in their decision making, but it is the Congress of the United States that provides the checks and balances, not the courts.

And as for presidential elections, the matter is even more cut and dried. Article 2, Section 1, declares, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

Notice again that the Constitution gives state legislatures the exclusive power to determine the manner in which electors are appointed to vote for president and vice president. In this case, even Congress does not have the authority to override the legislatures.

Yet now the Supreme Court has determined that the words of the Constitution do not mean what they say. This is pure revisionism, and plainly the result of judicial activism. The plenary power of the state legislatures to make the final decision about federal elections is settled conclusively by the fact that for many years after the adoption of the Constitution, it was common in many states for electors to be chosen directly by the legislature with no election at all. Not only did the courts have no say in the matter; neither did the people.

We don’t have to defend that practice in order to confirm that it is clearly constitutional, and having said so, we can also declare that the Supreme Court in Moore v. Harper has not interpreted the Constitution, but written a new one. If we the people decided that it was inappropriate for the state legislatures to make the rules for how to elect federal officials, we could have done what the Constitution calls for and sought to amend it. But instead, lawyers have waged war upon the English language and enlisted activist judges and justices to implement interpretations that are based more on sentiment than common sense.

If we are being honest, it is not just crazy liberals who twist the words of the Constitution to mean whatever they want.

Not long ago, I wrote a column titled “Do Democrats Value Abortion More Than the Constitution?” It lambasted Biden and others who want to create a law to protect abortion.

As I explained then:

Congress has no such ability. Article 1, Section 8 of the Constitution enumerates the powers of Congress. They are remarkably straightforward – and limited. Raise taxes, borrow money, regulate international commerce and commerce among the states, establish a process for naturalizing citizens, coin money and punish counterfeiters, establish post offices, establish copyright and trademark laws, establish lower courts, regulate pirates, declare war, raise armies and a navy, provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions, and create and maintain a small district that shall be the seat of government.

Search as you will, you won’t find any congressional power to promote social justice or to impose a moral standard on the nation. Unfortunately for lovers of limited government, Republicans have proven to be just as willing to ride roughshod over the Constitution as their Democrat counterparts.

Former Vice President Mike Pence, whom I defended in my prior column, has now publicly called for a federal ban on abortion after 15 weeks. No matter how much you abhor abortion, it is impossible to find any words in the Constitution which give Congress the power to regulate such a medical procedure.

So regardless of how many members of Congress (or former vice presidents) tuck a Constitution in their pockets, it is also impossible to make them read it, let alone be guided by it.

As a final note, I should probably give credit to the Supreme Court for overturning the policy of affirmative action in college admissions in two separate cases last week. It turns out that all those references in the Constitution to equality and equal protection of the law actually mean something. At least they do today. But for 45 years since the court’s ruling in the Bakke case, students who were rejected for college admission because of the color of their skin were just supposed to grin and bear it. Sure, the 14th Amendment prohibits states or state agents from “deny[ing] to any person … the equal protection of the laws.” But once again the plain language of the Constitution was ignored until last week.

I would propose writing an amendment that forced elected and appointed officials of the United States to follow the Constitution as written, not the one with invisible asterisks and footnotes and a “social justice clause,” but chances are it would be found unconstitutional anyway – or at least inconvenient.

Frank Miele, the retired editor of the Daily Inter Lake in Kalispell, Mont., is a columnist for RealClearPolitics. His newest book, “What Matters Most: God, Country, Family and Friends,” is available from his Amazon author page. Visit him at or follow him on Facebook @HeartlandDiaryUSA or on Twitter or Gettr @HeartlandDiary.

This article was originally published by RealClearPolitics and made available via RealClearWire.


  1. IF the supreme court is the final ones that decide what is constitutional, then what are we going to do to counter their decisions? I see NO way out of this situation that doesn’t end up with one being declared a radical constitutional extremist and sentenced to several years in jail.

  2. Throwing the BS flag here.

    The Constitution is just fine. Find a better one anywhere.

    The issue is, and remains, the poor quality of people involved. Which ultimately means the citizens of the country.

    We elect and re-elect (both sides) people who view our laws, traditions, and the Constitution as transactional.

    We sit quietly and watch TV instead of paying attention to who is teaching our kids. And what they are teaching.

    Not to mention a (deliberate?) passing over of the fact the Constitution gives us the means to adjust and change most of it, as the majority wishes.

    People get the government they deserve. Every single time. Don’t blame the document for the failure of the people to live up to it.

    Want a society that embraces the Constitution? Promote and elect them. Get involved in school, government, and your communities.

  3. Of course Judges, even Supreme Court judges, are going to grant more power to their lesser kin! Power is like cocaine to the addicted – you can never get enough.

  4. Our constitutions (federal an states) mean exactly what they say, and always have. The problem is people altering the meaning of words and reality. It would appear to be the ultimate illustration of that fact when people openly claim that men are women, men can get pregnant, and that there are a multitude of genders, but no. Like all other ridiculous debates in our disordered society, such insanity becomes yet another factor of societal collapse.
    Until we address obvious disorders, any argument over the legal meaning of words is mute.

  5. An assumption that private individuals in the United States don’t read and know the US Constitution is a false assumption though many turn to cable liberal television to be informed of prescribed thinking patterns. However, more than one might think Americans are revitalizing their interest in what the US Constitution clearly says.

  6. Not judging, but Frank is clearly guilty of commiting truth. Minimum sentence for such criminal : 50hrs each , torture of listening to BLM racist propaganda and 50hrs listening to ad council dumber & dumbest radio ads.

  7. How about a penalty for authoring a law found to be unconstitutional?! Public pillory for example!

  8. How to create a new constitution? Procedure includes creating a new nation which means the current one would be passe. Therefore, a new constitution is an act of creation. Unless you are making a new nation you aren’t making a new constitution. Who created this one? A convention, a full assembly. When this constition was “created” did the old English monarchy participate? That is why one may not assume elected re-presentatives are going to re-present we, the people. If they willfully now won’t hear us or listen to us why would they be creating a nation that includes us?

  9. It seems there is context to consider when reading the US Constitution. A good example is “the right to bear arms shall not be infringed.” To deny those in jail from obtaining guns, you would have to say something like, “of course we aren’t talking about criminals here.” The majority opinion says that legislatures are always subject to Judicial Review, so I guess this is the context we need to accept. At least we know where to advocate next: get back our state courts in every state. We now, as Alaskans, have a stake in PA court politics.

  10. Many people incarcerated have not had a jury of they visonage. THAT “GUILTY” VERDICT OF THEIR PEERS IS THE ONLY DUE PROCESS FOR “TAKING” LIBERTY. We have problems that KARENs tea party manners can’t fix per se.

      • You noticed wrong. I’m imprecise sometimes. I am older and worried about many important things but I ALONE think my own thoughts. I am not your stereotype.

  11. In the United States, jury nullification is recognized in the sense that jurors have the power to render a verdict based on their conscience, even if it goes against the letter of the law.

  12. “No matter how much you abhor abortion, it is impossible to find any words in the Constitution which give Congress the power to regulate such a medical procedure.”

    That would still be murder in any other example. I’m presuming you don’t hold that opinion on federal murder cases.

  13. The system has its ardent supporters evidently. A return to the 1776 US Constitution will be an improvement.

  14. And the First Amendment is a restriction on Congress, including the Courts instituted by Congress. Therefore, Federal Courts have no authority concerning 1A cases. The wording is very clear: “ The Congress shall make no law…” Federal Courts are an extension of Congress, and that includes the Supreme Court. Anyone ever hear of “case law”? Sadly, We no longer live under the “ rule of law”, instead We live under the rule of rules”. Do enjoy.

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