Posted on 12/29/2004 4:50:03 PM PST by Ed Current
The question, whether an OPINION OF THE U.S. SUPREME COURT repugnant to the Constitution can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric had been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the FEDERAL COURTS are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any FEDERAL JUDICIAL MAJORITY OPINION repugnant to it; or, that the FEDERAL COURTS may alter the Constitution by an ordinary MAJORITY OPINION.
Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary FEDERAL JUDICIAL MAJORITY OPINION , and, like other OPINIONS, is alterable when the FEDERAL COURTS shall please to alter it.
If the former part of the alternative be true, then an UNCONSTITUTIONAL MAJORITY OPINION OF THE U.S. SUPREME COURT contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an OPINION OF THE U.S.SUPREME COURT, repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and is, consequently, to be considered by this court as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.
If a MAJORITY OPINION OF THE U.S.SUPREME COURT, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the PRESIDENT, CONGRESS, STATES, and oblige them to give it effect? Or, in other words, though it be not CONSTITUTIONAL does it constitute a rule as operative as if it were? This would be to overthrow in fact what was established in theory; and would seem at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of ALL WHO SWEAR AN OATH OF SUPPORT TO THE U.S. CONSTITUTION to say what the CONSTITUTION says.
So if a OPINION OF THE U.S.SUPREME COURT be in opposition to the Constitution; if both the law and the constitution apply to a particular case, so that the PRESIDENT, CONGRESS AND THE STATE(S) must either decide that OPINION conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the OPINION; the PRESIDENT, CONGRESS AND STATE(S) must determine which of these conflicting rules governs the case. This is of the very essence of FEDERALISM.
If, then, the PRESIDENT, CONGESS AND STATE(S) are to regard the Constitution, and the Constitution is superior to any ordinary OPINION OF THE U.S.SUPREME COURT, the Constitution, and not such ordinary OPINION, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered, in CONGRESS, THE WHITE HOUSE AND IN THE STATES, as a paramount law, are reduced to the necessity of maintaining that the CONGRESS, THE WHITE HOUSE AND IN THE STATES must close their eyes on the Constitution, and see only the MAJORITY OPINION OF THE U.S. SUPREME COURT.
This doctrine would subvert the very foundation of all written constitutions. It would declare that a MAJORITY OPINION IN A FEDERAL COURT which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the FEDERAL COURTS shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the FEDERAL COURTS a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions — a written constitution — would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favor of its rejection.
The Constituition of the United States is extended to all cases arising under the Constitution.
Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it rises?
This is too extravagant to be maintained.
In some cases then, the Constitution must be looked into by the THE PRESIDENT, CONGRESS AND THE STATES. And if they can open it at all, what part of it are they forbidden to read or to obey?
There are many other parts of the Constitution which serve to illustrate this subject.
From these, and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support?
The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as —, according to the best of my abilities and understanding agreeably to the Constitution and laws of the United States."
Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that Constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or take this oath, becomes equally a crime.
It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall he made in pursuance of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument. MODIFIED Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803)
Thomas Jefferson: Liberty and Power
Several editors of newspapers had been found guilty of violating the Sedition Act of 1798 and sent to prison. When Jefferson became President, he pardoned and freed such of them as were still in prison. In correspondence with Abigail Adams in 1804, he justified his action this way:
You seem to think it devolved on the judges to decide on the validity of the Sedition Law. But nothing in the Constitution had given them a right to decide for the executive, more than to the executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because the power was placed in their hands by the Constitution. But the executive, believing the law to be unconstitutional, were bound to remit the execution of it, because that power has been confided to them by the Constitution. That instrument meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the [sole] right to decide what laws are constitutional ... would make the judiciary a despotic branch.10
President Jackson:
"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve." The Avalon Project : President Jackson's Veto Message Regarding ...
Justice Curtis's warning is as timely today as it was 135 years ago:
"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, 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 power to declare what the Constitution is, according to their own views of what it ought tomean." Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).
The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges--leading a Volk who will be "tested by following," and whose very "belief in themselves" is mystically bound up in their "understanding" of a Court that "speak[s] before all others for their constitutional ideals"--with the somewhat more modest role envisioned for these lawyers by the Founders.
"The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . ." The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982).
Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration ("There is a limit to the amount of error that can plausibly be imputed to prior courts," ante, at 24), with the more democratic views of a more humble man:
"[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 139 (1989).
"As noted before, the Supreme Court did not invent abortion. There might be plenty of abortion, perhaps authorized or permitted by state laws, even without Roe and Casey. Moreover, the Court is, arguably, not directly responsible for the wrong moral choices of individuals that the Court's decisions permit. Finally, the Court is not responsible - cannot be responsible, consistent with its constitutional role - for correcting all injustices, even grave ones. But the Court is responsible for the injustices that it inflicts on society that are not consistent with, but in fact betray, its constitutional responsibilities. To the extent that the Court has invalidated essentially all legal restriction of abortion, it has authorized private violence on a scale, and of a kind, that unavoidably evokes the memories of American slavery and of the Nazi Holocaust. And by cloaking that authorization in the forms of the law - in the name of the Supreme Law of the Land - the Court has taught the American people that such private violence is a right and, by clear implication, that it is alright. Go ahead. The Constitution is on your side. This is among your most cherished constitutional freedoms. Nobody ought to oppose you in your action. We have said so.
The decision in Casey, reaffirming Roe and itself reaffirmed and extended in Carhart, in my view exposes the Supreme Court, as currently constituted, as a lawless, rogue institution capable of the most monstrous of injustices in the name of law, with a smugness and arrogance worthy of the worst totalitarian dictatorships of all time. The Court, as it stands today, has, with its abortion decisions, forfeited its legal and moral legitimacy as an institution. It has forfeited its claimed authority to speak for the Constitution. It has forfeited its entitlement to have its decisions respected, and followed, by the other branches of government, by the states, and by the People. The enthusiasm of liberal intelligentsia for the Court's abortion decisions, the sycophancy of the law professorate, of the legal profession, and of our elected officials, and the docility of the American people with respect to our lawless, authoritarian Court rivals the pliancy of the most cowardly, servile peoples toward ruinous, brutal, anti-democratic regimes throughout world history. We suffer people to commit despicable acts of private violence and we welcome - some of us revere - a regime that destroys popular government for the sake of perverted, Orwellian notions of "liberty." After a twentieth century that saw some of the worst barbarisms and atrocities ever committed by humankind, at a time when humankind supposedly had progressed to more enlightened states, we still have not learned. The lesson of the Holocaust - "Never Forget" - is lost. We fail to recognize the amazing capacity of human beings to commit unthinkable, barbaric evil, and of others to tolerate it. We remember and are aghast at the atrocities of others, committed in the past, or in distant lands today. But we do not even recognize the similar atrocities that we ourselves commit, and tolerate, today."Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995, 1003-1007 (2003).
"In his speech to the Federalist Society, Scalia offered a detailed description of his approach to constitutional interpretation. In his view, Supreme Court justices overstep not only their authority but also their expertise when they try to answer some of society's most divisive moral questions in legal cases such as abortion. He says moral issues should be resolved by elected political leaders, not unelected judges."
"Other than offering the anecdote of the fundraising letter, Scalia did not mention the chief-justice issue during his lecture. Instead, he focused on what he sees as the problem of judges becoming involved in issues that he believes have no place in a court of law."
"He offered examples from the US Supreme Court - abortion, gay rights, the death penalty, gender equality at military schools, and assisted suicide."
"Under a regime of static law, it was not difficult to decide whether under the American Constitution there was a right to abortion or to homosexual conduct or to assisted suicide," he said. "When the Constitution was decided, all those acts were criminal throughout the United States and remained so for several centuries. There was no credible argument that the Constitution made those laws invalid."
"Of course, society remained free to decriminalize those acts [through legislation], as many states have," he added. "But under a static Constitution, judges could not do so." One justice's vision of role of the courts,
bump
>>For now, however, the Court is likely to remain an institution that above all reserves its right to have the final word, no matter which political party dominates the White House or Congress.<<
Isn't Congress the body that determines what will be lawful and what won't?
Shhh! Don't bust their bubble. I don't see how giving more power to the Feds could be construed as being conservative.
Why Care What The Constitution Says?
Address:http://www.freerepublic.com/focus/f-news/1115106/posts?page=47
WHY CARE WHAT
THE CONSTITUTION SAYS?
by Randy Barnett
"The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed." —JOHN MARSHALL (1803)
Had judges done their job, this book would not need to be written. Since the adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power.
This started early with the Necessary and Proper Clause, continued through Reconstruction with the destruction of the Privileges or Immunities Clause, and culminated in the post-New Deal Court that gutted the Commerce Clause and the scheme of enumerated powers affirmed in the Tenth Amendment, while greatly expanding the unwritten "police power" of the states.
All along, with sporadic exceptions, judges have ignored the Ninth Amendment. As a result of judicial decisions, these provisions of the Constitution are now largely gone and, in their absence, the enacted Constitution has been lost and even forgotten. ------
The Congress, The People,The Congress,The People, The Congress,The People,The Congress,The People,The Congress, The People,The Congress,The People,The Congress,The People
They all seem to forget that they are PUBLIC SERVANTS and have their jobs because they serve at the Pleasure of the PEOPLE. They seem to think they RULE the People! Time to WAKE THEM UP!! Shake the TREE!!
One critical case that will be indication of the Supreme Court's direction is the review of the Connecticut Supreme Court case involving the city of New London and the city's attempt to seize private property (Kelo and Dery)for private party needs (Pfizer).
The case is supposed to be heard in February and will show what the court thinks of private property rights under the concept of eminent domain. I saw a notice on a website the other day that the Bush administration was leaning in favor of the State of Connecticut which whould be a real blow to our right to own and lawfully enjoy our property.
Should the Bush administration have an impact for the state in this case, I will be one pissed off conservative Republican.
Lamudbug
An old fart who is a Goldwater Republican...
Good post, Ed. Marbury v Madison was wrong, and it's all been downhill from there! Roe v Wade is just one huge abomination among many. If Bush nominates ONLY decent conservatives, and is followed by another president (2008-2012) who does the same, we have a fair chance of turning things around. Otherwise, I would not be too optimistic.
B4Ranch wrote:
Isn't Congress the body that determines what will be lawful and what won't?
If Bush nominates ONLY decent conservatives, and is followed by another president (2008-2012) who does the same, we have a fair chance of turning things around. Otherwise, I would not be too optimistic.
Congress can remove appelate jurisdiction of the USSC and jurisdiction of lower federal courts We the People Act(HR 3893 IH) and leave these issues with the states.
Article III, Section 2 - The Washington Times: Editorials/OP-ED In the 107th Congress (2001-2002), Congress used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts.
You always have interesting posts, but I'm going to have to read this one tomorrow.
When are The People going to do something about Open Bordersd and Illegal Aliens in America?
Congress hasn't done anything yet.
So his analysis is that to favor the state over the individual is a CONSERVATIVE position??? Maybe the guy with the four way political quiz is right (liberal vs. conservative; libertarian vs. authoritarian).
That's right, and the President CLAIMS to have the political capitol to spend. On this issue, The Borders and Immigration, it is time to start getting the E-mail addresses, phone numbers and addresses to your Reps in Congress and start to BEAT DOWN the door!!
If we must go to Capitol Hill and BEAT DOWN THE DOOR!!! Let them know they work for the PEOPLE and Not the President!!!!
Just who mentioned O'Connor as a possible Rehnquist replacement? Time for that old hag to retire...
I'll leave the party if she gets elevated to Chief Justice, I swear...
Just who mentioned O'Connor as a possible Rehnquist replacement? Time for that old hag to retire...
I'll leave the party if she gets elevated to Chief Justice, I swear...
She doesn't show up in the F.R. Poll. She would be Chieftess Justice, or just plain injustice?
She could be Chief literary Justice:
At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. [505 U.S. 852]
This literary prose allows corporations to be persons, but not unborn humans.
Chief Hag might do.
"Just who mentioned O'Connor as a possible Rehnquist replacement? Time for that old hag to retire...
I'll leave the party if she gets elevated to Chief Justice, I swear..."
O'Conner is the worst justice on the Supreme Court!!
At least Breyer and Ginsburg were appointed to be liberal, but O'Conner was appointed by a REPUBLICAN and she's liberal.
She should be impeached, the traitor.
And Souter, too.
Read later, thanks.
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