Elder Dallin H. Oaks: Constitution’s principles and freedoms must be protected

By Scott Taylor Sep 17, 2010, 8:48pm MDT

SALT LAKE CITY — Calling the United States Constitution this country’s most important export, Elder Dallin H. Oaks of the LDS Church defined the Constitution’s four great fundamentals and called on the American public to better understand and support it.

“After two centuries, every nation in the world except six have adopted written constitutions, and the United States Constitution was the model for all of them,” said Elder Oaks in his keynote address at Friday night’s Constitution Day Celebration at the Salt Lake Tabernacle. “Consequently, if we abandon or weaken its fundamental principle, we betray our own national ideals, and we also weaken our global neighbors.”

A member of The Church of Jesus Christ of Latter-day Saints’ Quorum of the Twelve Apostles since 1984, Elder Oaks previously was a law clerk to U.S. Supreme Court Chief Justice Earl Warren, practiced law in Chicago, taught as a professor of law at the University of Chicago, spent nine years as Brigham Young University president and served nearly four years as a justice of the Utah Supreme Court.

His four great fundamental principles of the Constitution: popular sovereignty, division of powers in a federal system, the Bill of Rights and the separation of powers.

Of the first, he said people are the source of government power and sharing a measure of the burdens and responsibilities of governing.

“The government of the United States had to be ultimately responsible to the will of the sovereign people, but it also had to be stable,” he said. “Without some government stability against an aroused majority, government could not give individuals or minorities protection against overreaching by the ruling majority.”

Division of powers in a federal system divides government powers between the nation and state, limiting national powers and giving residuary powers to the state and local governments, which are most responsive to the people.

He cited the national Equal Rights Amendment proposed three decades ago and the possibility of federal courts decreeing that a state law on marriage is invalid under the U.S. Constitution as examples of having the potential to adversely affect the dominance of state law.

“Whatever the merits of current controversies over the laws of marriage and child adoption and the like, let us not forget that if the decisions of federal courts can override the actions of state lawmakers on this subject, we have suffered a significant constitutional reallocation of lawmaking power from the lawmaking branch to the judicial branch and from the states to the federal government.”

Of the Bill of Rights, Elder Oaks underscored the First Amendment. “I maintain that in our nation’s founding and in our constitutional order, religious freedom, and the freedoms of speech and press associated with it in the First Amendment, are the motivating and dominating civil liberties and civil rights.”

He added: “Unpopular minority religions are especially dependent upon a constitutional guarantee of free exercise of religion. … The importance of that guarantee should make us ever diligent to defend it. And it is in need of being defended. In my lifetime, I have seen a significant deterioration in the respect accorded to religion in our public life, and I believe that the vitality of religious freedom is in danger of being weakened accordingly.”

Elder Oaks said the checks and balances of separated powers between the executive, legislative and judicial branches help preserve independence from each other, with each fulfilling its own duties and needing to refrain from exercising the functions of the others. He had specific warnings for the judiciary.

“The courts must limit themselves to interpreting the Constitution and the laws and not stray into the legislative function of law-making. In contrast, we are all aware that in our day the actions of courts on major issues of public policy receive great attention in the media and are frequently represented and understood as the actions of those who make laws rather than those who merely interpret them.”

As to the widespread dissatisfaction that courts are legislating from the bench rather than interpreting the law, Elder Oaks said “this reveals a widespread feeling that the courts are revising the moral and cultural life of the nation by making policy determinations that should be made by lawmakers in the elected branches.”

He cautioned against the “politicization of state judiciaries” and judicial activism.

“In my opinion, the judicial lawmaking that has been legitimately criticized as judicial activism concerns the interpretation of state and federal constitutions. This kind of judicial action is not reversible by the popularly elected lawmakers and cannot be changed by the sovereign people, except in those unusual circumstances in which a constitutional amendment is feasible. If such judicial action sets aside laws enacted or approved by a direct vote of the people, it offends two fundamentals: separation of powers and popular sovereignty.”

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Constitution Day

Elder Dallin H. Oaks, a former Utah Supreme Court justice and law professor, outlined four major fundamentals of the U.S. Constitution and a citizen’s responsibilities.

Constitutional Fundamentals

1. Popular sovereignty

2. Division of powers in a federal system

3. Bill of Rights

4. Separation of powers

Citizen Responsibilities

1. Understand the Constitution

2. Support the law

3. Practice civic virtue

4. Maintain civility in political discourse

5. Promote patriotism