Posted on 06/28/2005 7:28:17 AM PDT by Law
Ten Commandments or Ten Opinions?
Pick the former unless you want to wade through nearly 150 pages of dense US Supreme Court legal jargon explaining why a Kentucky courthouse may or may not keep a display of the Ten Commandments ("may not" carried the day, by a 5/4 vote of the justices) and why a Texas statehouse may or may not keep its display of the Ten Commandments ("may" carried the day here, by a different 5/4 vote).
That's right. It took the U.S. Supreme Court ten opinions and nearly 150 pages in total to micromanage two state displays of the Ten Commandments, even though the First Amendment to the US Constitutional applies to Congress, not the states: "Congress shall make no law respecting an establishment of religion...."
To be sure, some of those 150 pages were written by justices arguing against the judicial power grab, but the length of the opinions and their strong language are just the latest indications that the majority of the U.S. Supreme Court is rowing increasing far from the mainstream in its pursuit of "evolving standards of decency." Expect falls ahead.
The current conflict over cases that come before the Court and the threatened struggle over its next nominee, should one of the justices retire soon as expected, is a very bitter one. That is because over time majorities of the Court have come to claim more power than the presidency and Congress in a judicial coup against the Constitution that threatens to destroy the republican form of government the Founders gave us.
And what is this power that makes presidents quiver and congressmen quake? It is the Court's claimed right to be the exclusive and final interpreter of the Constitution.
This dogma of judicial supremacy is, like so many controversial Supreme Court doctrines, not found in the Constitution itself. Rather it was invented in 1958 in a U.S. Supreme Court case called Cooper v. Aaron, in which a majority of the Court claimed: "the federal judiciary is supreme in the exposition of the law of the Constitution."
The majority in Cooper v. Aaron went so far as to rewrite history to legitimize their claim of power. Even though judicial supremacy had not been invoked in any prior Court decision, the Cooper majority nonetheless claimed it had been "a permanent and indispensable feature of our constitutional system."
The Founding Fathers were very much aware of the concept of judicial supremacy over constitutional interpretation – but they rejected it strongly. In 1804, for example, President Thomas Jefferson said judicial supremacy would lead to despotism:
"[T]he opinion which gives to the judges the right to decide what laws are constitutional...not only for themselves in their own sphere of action, but for the legislature and the executive also, in their spheres, would make the judiciary a despotic branch."
Jefferson was not alone. Only a few years earlier, Congressman Joseph Nicholson, a former judge, warned even more emphatically what would happen if the judicial branch was permitted to have the final say over all constitutional questions:
"Where is the charter which places the sovereignty of this country in [the judges'] hands? Give them the powers and the independence now contended for, and they will require nothing more; for your government becomes a despotism, and they become your rulers. "They are to decide on the lives, the liberties, and the property of your citizens; they have an absolute veto on your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country, differing essentially with us upon the great principles of government; and after being clothed with this arbitrary power, they are beyond the control of the nation...."If this all be true ... the constitution is not worth the time we are spending on it. It is, as its enemies have called it, mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws; they may laugh the legislature to scorn and set the nation at defiance."
Sadly, the despotism President Jefferson, Judge Nicholson and other Founding Fathers warned about is upon us, threatening the integrity of the whole judicial system.
The federal branch that Madison regarded as "the weakest branch" has "overleaped the Constitution" to declare our laws "null and void at [its] pleasure" even if doing so requires "introduc[ing] at will the laws of a foreign country," as the Supreme Court has done in declaring sodomy to be a constitutional right and in declaring unconstitutional the execution of 17-year-old murderers. The Court has issued other controversial decisions that cite international laws or foreign moral standards rather than the text and meaning of the US Constitution as it was delivered to us by the Framers.
Ironically, although nearly all of the more controversial Supreme Court decisions have struck down laws passed by the people or their representatives (e.g. Roe v. Wade, which ended abortion laws in all fifty states), the judicial activist majority of the Court often does its work in the name of "the people" or of "democracy."
In yesterday's majority opinion striking down the display of the Ten Commandments in the Kentucky courthouse, for example, Justice Stevens wrote that the Court should "expoun[d] the meaning of constitutional provisions" in part by considering "our Nation's...democratic aspirations."
As large majorities of Americans actually oppose so many of the Court's recent decisions, however, it's clear that the only "democratic aspirations" the majority of the Court has is mind is what Justice Scalia in dissent called the "personal preferences" of the "dictatorship" of a shifting Court majority.
Whether one calls it "despotism" or "dictatorship" or "democratic aspirations," one thing is clear: By advancing what Justice Thomas called in the Texas case their "judicial predilections" above the text and history of the Constitution, politically motivated majorities of the court are undermining the integrity of the judiciary and the foundation of our country.
If such is the consequence of man's law reigning supreme, I'll pick the Ten Commandments over the Ten Opinions any day.
Excellent analysis. The Constitution gives the Congress explicit authority to limit the jurisdiction of the Federal judiciary, and it is high time that they did.
Good article. Bump.
Though the preponderance of judges and justices in this country are imbued with the notion of Solomonic wisdom inherent to the robe empowering them to direct society as they see fit, sadly the real problem is the people. We the people have all the power we need to put a stop to judicial tyranny tomorrow but we the people have neither the time, the inclination nor the balls to do so. And so it goes.
To wit: The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. Article 3, Sec. 1
The implication is that the Supreme Court does not fall under the purview of the Congress.
With a big difference being that Solomon did not actually divide the baby in half with the sword, then say to the mother and pretender:
"There! Now are you satisfied?"
The SCOTUS is currently in violation of the law they applied to Kentucky. Defenders of this holding, spare us the lecture and equivocation, the parsing of terms over whether or not their own display of the commandments passes muster as a Smithsonian diorama.
It's Orwellian `double-speak' and belongs in an alternate venue where they subscribe to the notion of the Constitution as just a guideline, a Chinese menu.
There would not be any need for lawyers in general and Supreme Court in particular if it had not been for the Ten Commandments.
You may be right, but there are some buts. One is that if an issue is excluded from the inferior courts it is difficult to see how it would arrive at the Supreme Court.
This is not a religious neutral statement. In order for this to be carried into society, the people as a whole must acknowledge the exhistence of God. If there is no GOD, this statement is usless and void.
A Roy Moore lackey, who would have you believe that their is no such thing as incorporation of the BOR. It is sad that people with such fundamentally flawed approaches to the law can be elected to a court.
Nice work on that post, man.
150 pages is a lot of trees...
In one of Monday's Ten Commandments opinions Justice Thomas pointed out that, whatever one thinks of incorporation generally, it is particularly problematic to claim it with respect to the Establishment clause of the First Amendment, for the very reason Justice Parker points out, that it restricts "Congress" rather than the states in the establishment of religion.
You clearly do not agree with this perspective, but the proper response is to offer a better argument not to attack those making the argument you disagree with.
It is a basic rule of statutory construction. All provisions must be read together, in order to give effect to each part.
People are certainly free to believe that the states are not bound by the Bill of Rights. Judges don't have that luxury, as the law which they are sworn to uphold is certainly that the states are bound by the Bill of Rights, as incorporated through the 14th Amendment.
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