Make the Supreme Court an Election Issue

Conservatives ought to use Obama's selection of a Supreme Court nominee to replace Justice Scalia as an opportunity to challenge the role federal courts generally and the Supreme Court specifically have assumed as the super-legislative body that can overrule all other parts of federal and state government in our republic.

This is not want the Constitution intended at all.  The Supreme Court seized this power on its own.

This is not a "conservative" versus "liberal" issue.  Hendrik van Loon, hardly a conservative, in his 1927 book America, wrote: "I ought to have mentioned the name of Thomas Marshal of Virginia, who as Chief Justice of the United States had elevated that court to the dignity of a semi-divine institution, ready and often eager to make scraps of paper as such Congressional legislation as seemed to be in contradiction to the sacred stipulations of the Constitution."

The Supreme Court simply invents what it wants the Constitution to mean and then declares its whims to be the meaning of the Constitution.  The Constitution was written, of course, so that it was easy to understand – that was the idea.  Members of Congress, who pass federal laws, take the same oath to respect the Constitution as do Supreme Court justices. 

In those cases where the Constitution is unclear and needs to be changed, there is a clear process for doing that, which requires a super-majority of state legislatures to ratify any proposed amendments.  The practical effect of rogue and limitless federal judicial activism is that the amendment process, which was once recognized as the only process for changing the Constitution, has effectively died.  Instead we "amend" the Constitution in a much less rigorous and much less reliable way: through the whims of a handful of Supreme Court justices. 

The myth of constitutional jurisprudence is as phony as the notion that the best protectors of civil liberties and political rights are a small, insulated, pampered, and unaccountable group of judges who live within the murky and corrupt confines of the District of Columbia, surrounded by fawning lawyers and clerks. 

This sort of system is really an anti-constitutional system, which relies not upon the clear language of a plainly written document and the few amendments to that document, but instead on a convoluted mess of cases and decisions and opinions.  This means that oftentimes the "Constitution" in one circuit court of appeals means one thing and in another circuit court of appeals means something else, until cases slither up the appellate process, and the Supreme Court deigns to hear a case and render an opinion.

Even so, through this bizarre system – in which the Constitution is effectively amended by one old judge changing his mind – the certainty of a Supreme Court opinion lasts only until the balance on that court changes.  So the Constitution, intended to provide simplicity and clarity, has been disemboweled.  Now it means only what the shadowy priests of the federal bench see in the auguries of those split entrails.

Most nauseating is the spectacle of pundits asking politicians running for federal offices if they will follow "the law of the land" – meaning the decision of the Supreme Court – although all legislative power is granted to Congress, and all power not granted to Congress is reserved to the states.  It is bad enough when regulatory agencies and presidents make law by order.  When federal courts do it, then Congress is simply an empty vessel, lacking real power, although it represents the interests of the governed as expressed through elections.

Why not use the debate over Obama's nomination to the Supreme Court to assert that federal judges do not have the power to interpret the Constitution, void federal laws, or intrude into the rights of state governments?  Why not argue in this election that voters and their elected representatives say what the Constitution means and that the opinions of judges cannot overrule the people and their representatives?  If we are going to put Washington on trial this election – and we should – then the Supreme Court should be at the top of the list, although with the federal bench generally and the hordes of lawyers who feast at our expense on this rotted system.

If we did that, and if we won the election, then America would be able to have a true, peaceful, constitutional revolution, and the process of devolving power back to Congress, back to states, and back to the people could really begin.

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