Usurpation and Abdication: The Court and the Constitution.

The July 15, 2002, issue of National Review via National Review Online ^ | June 27, 2002 | NR Editors

[xsysmgr]

The Supreme Court issued an outrageous ruling on the death penalty, but it did not inspire much outrage. It was greeted with equanimity because the policy the Court imposed was within the bounds of reasonableness. The Court ruled that the mentally retarded could not be executed. What should cause opposition, and resistance, is not the policy that the Court imposed but the fact that it imposed it — without constitutional warrant — at all.

Nobody believes that the Constitution, as originally understood, bars the execution of criminals with low IQs. The Court did not bother attempting to argue that it does. Instead, it concluded that the practice of executing the retarded offended "evolving standards of decency." Its evidence for this claim was that various professional associations have condemned the practice, some state legislatures have recently prohibited it, and opinion polls have found that the public opposes it. The reasoning is tissue-thin. If a prohibition by some states is evidence that the country may be moving toward a consensus against the execution of the retarded, the fact that other states — most states that have the death penalty, in fact — have not prohibited it is conclusive evidence that we have not reached that consensus. Besides, reflecting the shifting opinions of the public is not the Court's job. Elected officials are at least as good at reading polls as justices are.

When the death-penalty decision came down, these officials issued no protest at the diminution of their authority. The day before, however, Steve Chabot, a Republican congressman from Ohio, introduced a bill responding to another encroachment by the Supreme Court on legislative authority. In 2000, the Court struck down bans on partial-birth abortions. (These are the abortions, you may recall, in which a fetus is partially delivered, its skull is crushed, and it is then removed from the mother's uterus.)

The Court struck down laws against partial-birth abortion for two reasons. It thought they were worded too vaguely and thus could prohibit too many abortions. Chabot's bill deals with this objection by tightening up the wording. Second, the Court ruled that the bans must have a "health exception." This point is often misunderstood. The Court did not rule that partial-birth abortion must be allowed if the pregnancy threatens the health of the mother. It ruled that it must be allowed if it is the safest method of abortion, whatever the reason for which the abortion is sought. Chabot addresses this objection by adducing findings of fact that partial-birth abortion is never medically necessary, even in the sense the Court had in mind — and that the Court has in the past deferred to congressional findings of fact.

Passage of Chabot's bill is a morally urgent matter. But notice what his bill does not do. It does not challenge the legitimacy of the Court's decision; it tries to undo its worst effects while working within its parameters. The bill jumps through the hoops that the Court, and not the Constitution, has set up — the necessity of "health exceptions," the inadmissibility of restricting too many abortions. We say this not to criticize Chabot, who is, again, doing necessary work while respecting the prevailing assumptions about the Court's authority. But someone ought to challenge those assumptions.

The Court's usurpation of legislative power is, in a way, the lesser of our constitutional deformations. The flip side of the Court's usurpation of power is the other branches' abdication of responsibility. The Framers of the Constitution never expected that a branch of government would always stay within its prescribed boundaries. It expected that when a branch transgressed the limits — particularly if it did so repeatedly — the other branches would respond. It should not be surprising that, in the absence of such a political response, the extra-constitutional habits of today's Court have become ingrained. Congressmen ought to dust off their copies of the Constitution, and look especially closely at Article III, Section 2, which stipulates that the Court's jurisdiction is subject to such "Exceptions" and "Regulations as the Congress shall make."

[Common Tator]

The Supreme court ruled in 1803 in the case of Marbury vs. Madison that the supreme court had the exclusive right to say what was constitutional and what was not. That ruling in effect lets the judges say what the constitution means. Our constitution was to be a self-evident document, but in 1803 the court ruled they and they alone could say what it meant. Chief Justice Marshall in his decision wrote the constitution does not mean what it says, it means what ever the judges said it says.

Once we accepted the fact the court could say what the Constitution meant, then the document itself means nothing.

There is nothing to be gained by arguing that the constitution says one thing and the court says another. For 199 years it has meant what ever the judges say it means... right now. Next year it will 200 years since an arguemnt based on something being constitutional or unconstitutional an argument had any meaning other than what the judges want it to be.

This nation is not a constitutional Republic. It has not been one for 199 years. That ruling when left to stand turned theis nation into a Democracy tempered by Judical Fiat.

What part of that truth do people fail to see. How many times does the court have to do what could not happen in a constitutional republic before we understand that this nation is NOT a constitutional Republc. It has not been one for 199 years.

Before anything can be fixed one has to understand the situation. As long as idiots argue that we are what all the evidence proves we are not, we won't change anything.

As long as we refuse to believe that our nation is a Democracy tempered by Judial Fiat, we will play the wrong game.

It is easy to win a game of checkers, if your opponent thinks you are playing chess.

[inquest]

The Supreme court ruled in 1803 in the case of Marbury vs. Madison that the supreme court had the exclusive right to say what was constitutional and what was not.

I just got through reading that decision, and Judge Marshall said absolutely nothing about an "exclusive" right. He said that since a) The judiciary power obviously entails the power to declare the meaning of the law, and b) The Constitution is law, then it must follow that the judiciary has the power to declare the meaning of the Constitution. But nothing about an "exclusive" power to rewrite it at pleasure. (For that, you need to go to Earl Warren!)

[San Jacinto]

I agree absolutely. You cannot have a constitutional form of government without a judiciary which interprets the constitution. How is ANY document supposed to be "self-evident"?

Suppose I am arrested for yelling "Fire!" in a crowded theater. I argue that I may not be prosecuted because there can be no law "abridging freedom of speech" according to the constitution. Who is to rule on the merits of my argument? Shall it be the Congress who wrote the law I have allegedly violated? Shall I write the President and demand that he order my release? Or would the Judge of the court with jurisdiction of the case make the ruling? Only the last option makes any sense.

What if Congress were to pass a law that made it illegal to criticize any member of Congress during the 60 days before an election. [I know the example could never really happen, could it Sen. McCain?]

If I am arrested for violation of such a law, who is to hear my argument that my constitutional right to free speech has been violated? It has to be a Judge, right? I can conceive of no system which seeks to limit the power of government over the people where the judiciary is not the arbiter.

As you point out in your post--the problem lies with Judges who usurp the power to legislate the law, not with judges who properly interpret the law.