Fighting Supreme Court Arrogance

Gallup published in late July a poll that showed that Republicans strongly disapprove of the Supreme Court, in stark contrast with Democrats.  This ought to be a rallying cry for Republicans going into the 2016 election.

No institution in American government has been as destructive and arrogant as the Supreme Court.  Until we unwind the anti-constitutional arrogance of power this court has seized for itself, the problems of our political system cannot be solved. 

The problem of a Supreme Court that takes upon itself paramount power in our constitutional framework goes back to the early days of the republic.  None of the Founding Fathers believed that the Supreme Court should have the power to interpret the Constitution.  Jefferson believed that a simple vote of Congress was enough to overturn a Supreme Court decision, and when the Supreme Court grabbed supra-constitutional power, Jefferson warned: “The Constitution is a mere thing of wax in the hands of the judiciary that they may twist into any way they please.”

The Supreme Court, in large measure, caused the Civil War by declaring in Dred Scott that blacks in America, like unborn children in America under Roe v. Wade, had inherently inferior civil rights.  If the usurpation of power by the court seems like a recent problem, here what Justice Curtis, the only Supreme Court justice to resign as a matter of principle, wrote one hundred and fifty-eight years ago in his dissenting opinion in Dred Scot, the decision that caused him to resign:

When a strict interpretation of the Constitution is abandoned … and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of what it ought to be.

Nothing in the Constitution grants the Supreme Court the power to interpret that document, and there has never been any good reason for the Supreme Court to have that power.  In Marbury v. Madison, that ghastly exercise in jurisprudential malpractice, Chief Justice Marshall, author of the majority opinion, noted that the president and every member of Congress had taken the same oath to follow the Constitution as each member of the Supreme Court. 

Indeed, many of those elected officials helped write the Constitution or explain to Americans in the argument for the Constitution just what the various parts of the Constitution meant.  Why on Earth, then, did our nation need a court to explain to these men what the document they drafted and explained meant?

The opinions of the Supreme Court “interpreting” this way and then that way what the Constitution means is really simply amending the Constitution without going through the rigorous process for obtaining a super-majority that Article V requires.

Instead, all that it takes to amend the Constitution is five votes on the Supreme Court.  Seducing one or two of the fossilized insider Washingtonian lawyers to change their opinion is infinitely easier than convincing a majority in both houses of thirty-eight state legislatures – what is required to ratify a proposed amendment.  Thus, the Constitution is never formally amended anymore.

These justices, the lower federal court judges who exercise in their feudal fiefdoms similar power, and all the armies of lawyers who fete and genuflect to them are nothing less than a priestly caste who examine the entrails of goats to divine what clear language of our Constitution “really” means.  This, more than anything else today, foreshadows an edge to liberty in America.

When unelected and largely invisible and utterly unaccountable governors who all live in a tiny part of America and all practice a single profession, law, ultimately rule, the disengagement of government from the consent of the governed becomes almost absolute.  This is compounded when nearly all of the leaders of one political party, the Democratic Party, are lawyers themselves.

Republicans, who have doctors and businessmen and such in their ranks, ought to call for a campaign against the rule of Washington lawyers and federal courts.  Instead, let them call for a revitalization of democracy in America by restoring to federal elected legislators and to state governments, and to the will of the people as expressed in ballot initiatives, the power stolen from them.

What would Democrats do?  There is no way to defend Supreme Court arrogance without showing condescension toward those to whom ultimate sovereignty was intended to reside, the American people.  If we want a true conservative revolution, it must begin here.  There is no better time to begin it than now.

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