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The Constitution itself says very little about who should interpret it.

The Constitution says a great deal about who should interpret it. Article III, Section 2, Clause 2: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Jurisdiction is defined as "the power, right, or authority to interpret and apply the law."

The reply above is a non sequitor. It's true that the U.S. Supreme Court has the final authority to interpret and apply the law in cases that come before it -- this is the doctrine of "the law of the case" -- but this is a far cry from claiming that judicial opinions written in such cases apply to every subsequent case in other courts or that the U.S. Supreme Court has exclusive authority to interpret the Constitution.

The notion that judicial opinions are binding in other cases -- what we might ironically call "the law of the opinion" -- has no basis in the text of the Constitution or in its historic context.

"Judicial Supremacy," the notion that the judicial branch (ultimately the U.S. Supreme Court) has the final authority to interpret the Constitution, is likewise without any textual or historic support. It is a doctrine invented by the U.S. Supreme Court in 1958 in a case called Cooper v. Aaron, in which the Court writes the bold-faced lie that it has always held that it was Supreme in the exposition of the Constitution.

That's simply not true; the Emperor has no clothes. Thank God Justice Parker isn't afraid to say so.

Somebody has to have the final word. If not judges, who?

The people, of course. Every elected official takes an oath to uphold the Constitution, and that responsibility cannot be delegated to the judicial branch or even to the "Supremes." If the black-robed tyrants issue some unconstitutional ruling, the other branches are bound by their oath to refuse to follow that ruling. And, if they don't the people should hold them accountable at the ballot box.

Think about it: If the Supremes are the final authority, rather than the text of the Constitution in its historic meaning, then the other branches would be taking oaths to obey the Supreme Court instead of to uphold the Constitution.

Wow! Okay by me - - Tom Parker for US Supreme Court.

I think he does more important work in Alabama, so I want to keep him here. But Bush could shift the debate his way with some Hegelian jujitsu by nominating Parker, who would rock the Senate during confirmation hearings. I doubt he would be confirmed, but Parker could stun the establishment so much that the left would give in to almost anyone Bush nominated as a replacement.

Roy Moore and Tom Parker. Two Alabamians within the Left's cross-hairs.

No doubt. I think it's too early to assume the left won't attack Parker for his op-ed. They've been sharpening their knives, waiting for just such an opportunity to take out the man who is justly considered Roy Moore's successor on the Alabama Supreme Court.

There is at least one big difference between the two men: Parker is much more skilled politically and knows how to fight, whereas Moore appears to regard political street fighting to be suspect. I think the left will long rue the day they decided to tangle with Tom.

Forget Alito. Tom Parker for US Supreme Court.

Great idea. Too bad federal judges aren't elected...

It's too bad more conservatives judges don't take such a stand.

I stand corrected, of course. I meant I haven't heard of such a stand in an op-ed, drafted in criticism of one's colleagues.

Remarkable. I've never heard of a state supreme court justice taking such a strong public stand on an issue.

[Justice Parker] would have you believe that the[re] is no such thing as incorporation of the [Bill of Rights]. It is sad that people with such fundamentally flawed approaches to the law can be elected to a court.

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.

Tom Parker is Associate Justice of the Alabama Supreme Court

What I take from the quotes that I posted is that judges have snatched power away from the people who make up the juries.

True. But judges have also seized power from the executive and legislative branches of government, which branches are the people's branches. So it's all part of the same thing.

The American people must keep a watchful eye on the judiciary so that the will of the people will not be infringed upon.

You're absolutely correct. One way to do this is to insist that our elected executives use their own right and responsibility to interpret the constitution and decline to enforce unconstitutional judicial opinions. When faced by unconstitutional court rulings, President Bush should follow the example of President Jackson when he vetoed a bill authorizing a Bank of the United States, also quoted by Justice Tom Parker in his opinion:

"It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled....

"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."

More wisdom from Thomas Jefferson, this time in 1815, reproduced by Justice Parker:

"The ... question, whether the judges are invested with exclusive authority to decide on the constitutionality of a law, has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the executive or legislative branches. ...

The constitutional validity of the law or laws again prescribing executive action, and to be administered by that branch ultimately and without appeal, the executive must decide for themselves also whether, under the Constitution, they are valid or not. So also as to laws governing the proceedings of the legislature, that body must judge for itself the constitutionality of the law, and equally without appeal or control from its coordinate branches.

And, in general, that branch which is to act ultimately and without appeal on any law is the rightful expositor of the validity of the law, uncontrolled by the opinions of the other coordinate authorities."

Also from Justice Parker's opinion, a quote from a September 11, 1804 letter by Thomas Jefferson to Abigail Adams:

"[T]he opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch."

Ping.

Alabama Patriot Ping

"They are to introduce at will the law of a foreign country, differing essentially with us upon the great principles of government..."

Interesting. Thanks for posting.

Great post. BTTT.