Posted on 02/13/2006 10:41:19 AM PST by Mr. Silverback
One hundred fifty years ago, a Constitutional crisis took place similar to one that we have been threatened with over Roe v. Wade—one in which no moral consensus could be achieved between the three branches of government. The first constitutional crisis was over the hot-button issue of that day: slavery. The Supreme Court declared an act of Congress unconstitutional, and the president, Abraham Lincoln—to his everlasting credit—refused to recognize the Court’s decision.
In 1857, the Supreme Court ruled on the case of a Missouri slave named Dred Scott. Scott’s master, John Sandford, had taken him into the free state of Illinois. Because of the Missouri Compromise, banishing slavery in some states, slaves in free states could demand their freedom. Scott did.
Scott’s owner challenged the constitutionality of the Missouri Compromise, arguing that slaves were private property protected by the Constitution and could not be taken away without due process. Congress, therefore, he argued, lacked the constitutional authority to ban slavery in Illinois or anywhere else.
The Court agreed and not only sent Scott back into slavery, but also claimed he had never been free. The Court also ruled that Congress lacked the authority to forbid or abolish slavery in federal territories—meaning the Missouri Compromise was illegal.
Lincoln saw Dred Scott as an outrage, in part because the Court claimed authority to decide for the other branches of government once and for all what the Constitution required. In so doing, it placed the other branches in a position of inferiority and subservience, something the founders specifically rejected.
As president, Lincoln ignored Dred Scott. His administration treated free blacks as citizens, issuing them passports and other documents. In open defiance of the court ruling, he signed legislation that restricted slavery in the western territories.
Lincoln saw himself following in the footsteps of another president. Thomas Jefferson also believed that the president and Congress were in no way inferior to the Court. Jefferson told a friend the Constitution “has wisely made all the departments coequal and co-sovereign within themselves.” In so doing, the founders took into account fallen human nature. Both Jefferson and Lincoln believed courts were capable of violating the Constitution and undermining constitutional government. Ultimately, of course, as we know, Lincoln proposed that the Constitution be amended to outlaw slavery—and it was, with the Thirteenth Amendment.
Today, we have become so accustomed to the notion that the courts have supreme authority that we are shocked at the idea that a president or the Congress might stand up to them.
Well, fortunately, we’ve just witnessed the appointment of two new Supreme Court justices who respect the court’s limited rights under the Constitution. And we have a president who is appointing, throughout the court system, judges who will bring the courts back to a proper understanding of their role. And so we may avert the kind of constitutional crisis Lincoln faced over our own divisive issues like abortion and so-called same-sex “marriage.”
Lincoln’s birthday is a great occasion to remember that two of our greatest presidents would never have tolerated lawless judges who had no regard for the constitutional limits of their own power.
Nor should we.
There are links to further information at the source document.
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Unfortunately, too many these days forget that the other two branches are equally capable of doing so. Our legislators and presidents have no problems enacting laws they know are unconstitutional so they can curry favor with their constituents, and complain later that the "activist court" overturned the laws.
The Supreme Court sole purpose was to decide defined disputes, not interject itself in Republicanism. States can roll over an play dead at the snap of the courts fingers whenever the rights they retained under their compact is disparaged, and they can also decide for themselves whether the court has invalidated their compact and ignore the court. They are certaintly under no obligation under the Constitution to give up their retained rights simply because the court says so.
Its like with this federal court ruling with Arizona punishing the state $500,000 a day because of aliens lack of english education funding. Arizonia is perfectly within its rights to say they are under no obligation to fund english only and that they are the final arbritrator in the matter under their constitutional comapct.
Well, since it is supreme among the courts, "Supreme Court" is fine.
It's just not the supreme branch most people seem to assume it is.
Watch: the Democrats next move...
Possible scenario: GOP gets Roe v Wade overturned (or at least thrown back to states)...Dem's win back Presidency with radical Hillary or Dean type (1% possibility). Dem President refuses to acknowledge the overturned Roe v Wade.
History: They've learned (and lost).
This is a revelation to most people, because we are so used to blind obedience to the Supreme Court.
Let me give you an extreme example to prove the point, and then a more specific example from today's headlines. The Constitution give the President the right to veto legislation. Suppose he does, and the Congress falls two votes short of an override. The Supreme Court then declares that the 2/3 requirement need not be followed, because it is archaic, or some such justification. Must the President accept the Supreme Court's decision?
The Constitution is capable of being read and understood by non-lawyers. When the Supreme Court clearly violates the Constitution, must its dictates be followed? Or was our system set up intentionally so that the branches could decide for themselves what the Constitution says? I believe the latter, and that when the Supreme Court opines, it does so with authority, but not always absolute authority. When it encroaches on the legislative or executive powers, it can and should be ignored or battled.
Now, another example. Suppose that we are at war. A war authorized by Congress. Further suppose that the Supreme Court has 5 justices who are against the war, and decides to interfere. They order the President not to attack the enemy, claiming that it would violate the due process rights of American soldiers to risk their lives in a dangerous mission. Or they claim that an attack would violate international law, which we must uphold, based on the Nuremburg precedents. The basis for the ruling is not important to this hypothetical, just that they make a ruling that tells the President how to exercise his powers as commander in chief of the military.
The President would have a duty to ignore the ruling, and exercise his power as commander in chief. He could perhaps explain why he is ignoring the Supreme Court, as it would be important to explain such a momentous decision to the people. But ultimately, it would be up to him to decide whether the Supreme Court could restrict his powers.
If the Congress doesn't agree, they can impeach him. It would be an impeachable offense to ignore a proper ruling of the Supreme Court on a matter of law rightly in its purview. If the voters don't agree, they can vote him or his party out at the next election. AND, if the Supreme Court does these things, its members can also be impeached, for violating their duties to the Constitution. Those are the checks and balances, and they can work, if applied properly. Blind obedience does not allow any check to the Supreme Court, and it has gotten used to that blind obedience, pushing its limits ever farther.
Maybe we need a good impeachment, of someone who has admitted that he does NOT follow the Constitution in his rulings. Paging Justice Breyer.
"They are certaintly under no obligation under the Constitution to give up their retained rights simply because the court says so"
Therein lies the real reason for personal income tax. Money is the real shift of power. Sure, a State can do what they want but risk losing Federal funding...No way.
Think about the states that either did not immediately go along with the 55 mph speed limit (or at least those that went along with the sign but didn't generate enough speeding tickets to satisfy the DOT). They lost highway funding. That was enough to bring everyone into compliance.
Since the Court has no executive authority of its own, if the Chief Executive chose to defy it, to whom would it turn for enforcement?
Yes, it is a problem that the Courts are so far removed from popular control that the governed cannot be said to have given consent, but to replace the Rule of Law by Rule of the Executive would only make it worse. What is needed is that the people or their elected representatives be able to overrule these egregious Court decisions.
I'm a bit rusty on this, but I remember back in colleg being told that courts are empowered (ironically by the executive) to have officers carry out their orders i.e. A bench warrant in which officers must arrest someone, or in some courts even their own marshalls.
Its why a judge can hold elected officials in contempt or arrest them.
I'm trying to remember the exact wording but it had to do with Bush vs Gore, and most of the liberals in my class arguing that Bill Clinton had the right to refuse to follow SCOTUS and stop the re-count and to go their and seize the ballots and have them re-counted.
The little commies were arguing that Clinton as chief executive and enforcer of the constitution had a right to over rule or ignore SCOTUS since they felt scotus had made the wrong decision and that Clintons interpretation of the constitution and duties allowed him to as he wished and there was nothing scotus could ever do to stop him.
I laugh about it now, since its pretty clear these idiots weren't thinking long term, and I'm sure they are all holding different opinions today.
Sure.Just as soon as you win 67 senate seats for Republicans - not counting any RINOs.
The truth is that there are more than 3 branches of government; journalism arranged the threatened impeachment which induced President Nixon to resign - and did not do so when x42 was in the dock. And journalism sets the stage for the actions of the Supreme Court. Whatever journalism will scorn, most Supreme Court justices will tend to eshew.
And that "fourth branch" is really the only reason that the left has any political strength at all.
Yeah, and? States that want to regulate and restrict abortion will do so, and punish violations of the law, and there'd be nothing the President could do about it.
Overturning Roe v Wade wouldn't place any demands on the President or Congress, so there'd be nothing for them to ignore. It would simply mean the Court is no longer taking a stance on the issue. Congress could choose to pass legislation legalizing abortion in all States, at which point the Court could rule on that legislation, but it would be a matter entirely separate from Roe v Wade.
Obviously, impeaching a justice for admitting that they don't follow the Constitution strictly is not something that would be politically possible today, even with 67 Republicans in the Senate. That's why I say we need to educate the public on what the Constitution actually says and means, and create conditions that allow it to be followed. Socialists did that, spending decades after 1932 laying the groundwork for things like Miranda, Roe v. Wade, and Kelo.
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