Published by Communities At Washington Times, 10-25-10 (This is a re-writing /updating of a previous article I had written for San Diego Rostra)
Does the state of Arizona have a right to pass laws about the enforcement of our own national immigration policy? Will the military be allowed to continue its “Don’t Ask Don’t Tell” Policy? Will gay marriage be permitted in the state of California, despite a recent amendment to the California constitution stating that marriage is a union between a man and a woman?
Our nation anxiously awaits the conclusion to these and many other controversial issues but ironically, they are not being decided by voter ballot or legislature. Instead, the Supreme Court (created as one of three branches of government) is fast on its way to becoming the final card that trumps all other hands.
I remember, a little less than a year ago, receiving a comment from an atheist regarding my Op-Ed piece of December 4, 2009, for San Diego News Room. In arguing about what our constitution’s Establishment Clause meant, he reacted to my statements about the original intent of our forefathers. I had said, ‘What the constitution meant to them is what the constitution means, period.’
My reader responded: “Totally, hopelessly wrong. What the Constitution means is what the Supreme Court says it means, period. Reading the minds of the likes of Thomas Jefferson may be within your abilities, but I’d like to see proof.”
I hope you’re paying serious attention to this. In my article, I mentioned that in the days of our forefathers religious shrines were all over public land. That doesn’t tell us anything about the minds of the forefathers? Neither do the diaries of the men? It’s impossible to know from the actual words of Jefferson and Adams how they felt? But the often arbitrary, often emotional interpretation of the Supreme Court tells us everything we need to know about Jefferson and Adams? The words of our forefathers and the actions of our forefathers do not explain their own words, but the 9 justices appointed by politicians with biases and litmus tests do explain their words?
To anyone who thinks the Supreme Court has a perfect, exclusively authoritative, unchecked understanding of our constitution, I have just three words for you: Dred Scott Decision, where the wise, insightful, legal scholars ruled that African slaves were property. Still care to point to that court as a superior unquestioned power?
News flash: No where in the constitution does it say that the Supreme Court interprets the constitution. Nowhere. Don’t bother looking. You won’t find it. The purpose of the Supreme Court is not to interpret the constitution. The purpose of the Supreme Court is to enforce the constitution.
In all likelihood, many readers are raising their eyebrows about now, even fellow conservatives who sympathize with public reaction against judicial activism. Perhaps what I’m saying sounds too good to be true, or too bizarre to be true. Certainly this position is out of the mainstream at our present time in history. If you asked most Americans, they would say it is indeed the job of the Supreme Court to interpret our founding document. So would most lawyers and certainly a good many judges. Yet, some legal scholars would agree with me. Others might answer delicately, as law professor and talk show host, Hugh Hewitt did when I interviewed him a few years ago. Asked if the constitution never intended for the Supreme Court to interpret, he answered, “It can be so argued.” (The Bob Siegel Show 4-24-05)
Throughout history, majority opinion has often been wrong. Most people of the world accepted slavery for the greater balance of history (including, once again, the Supreme Court itself, but I won’t belabor that point). And so, perhaps we would be well served to temporarily ignore public opinion and instead examine the testimony of facts from the past.
The interpretation tradition began when Thomas Jefferson refused to install some justices John Adams had appointed before he left office. Since the judges were never inaugurated, Jefferson didn’t feel obligated to use them. His government was sued in a landmark case called Marbury vs. Madison, (1803). Because this unusual situation had never come up in such a high level, complicated scenario, litigation turned to the Supreme Court, which ordered Jefferson, via his Secretary of State, James Madison, to appear before them and explain himself. Jefferson ignored them. Marbury (one of the justices spurned by Jefferson) referred to the Judiciary Act of 1789 as a basis for the court being able to issue such commands. Ironically, the court, after first showing sympathy to Marbury, pronounced a contradictory ruling.
It decided that the Judiciary Act was unconstitutional, because it gave the Supreme Court more power than the constitution intended. So even though the justices were sympathetic to Marbury, and insisted the law set up by congress was on his side, they ultimately ruled against him by deeming that same act of congress to be technically unconstitutional. Marbury, according to the high justices, should have started with a lower court rather than the ultimate court in the land and therefore, they could not issue the verdict that both they and he wanted. This decision was actually a political stroke of genius under the leadership of Chief Justice, John Marshall, who found a way to lecture and chastise his rival, Jefferson without giving the popular president an actual court order that he would certainly refuse to obey. In short, Marshal devised a clever strategy to save face by having his cake and eating it too. Nevertheless, in calling an act of congress unconstitutional for giving too much power to the court, this landmark ruling established a tradition about the Supreme Court telling us what the constitution intended. Gotta see the irony.
Now here’s the thing: Jefferson disagreed with the court’s new found powers, even though, in this particular instance, the ruling was personally convenient, as now, he did not have to appoint the justices. Jefferson feared that if this understanding of judicial power were accepted, it would be “placing us under the despotism of an oligarchy.” (Thomas Jefferson, to William C. Harvis, 1829 ME 15: 277)
Unfortunately, 1803 spawned a custom that we never quite shook. It established what is commonly called “Case Law” and yes, law schools teach and generally accept Case Law. I am convinced this is based upon a mistake, grandfatherclaused into a tradition that has taken on a life of its own. Today we live in the debris of that fateful Marbury vs. Madison ruling. Not only the Supreme Court, but other courts along the ladder make decisions to overturn the will of the people or the laws of congress.
A recent example is one of the most chilling of all: At first the people of California passed a law stating that marriage would be defined as a union between a man and a woman. Then, a court overturned the law, claiming it was unconstitutional. So, later on, in 2008, after some seven million people passed Proposition 8, the California constitution was actually changed. I went on the radio at this point predicting that somebody would find the amended constitution “unconstitutional.” I said it in a way that sounded sarcastic but I was also dead serious. Well, that is just exactly what happened. A federal judge has declared the California constitution to be unconstitutional, that is, in serious conflict with the federal constitution, which, incidentally, says that our independent states have a right to make their own constitutions.
His rationale was that the state constitution violates federal rights, which must transcend all states and be true for all Americans, namely the promise for equal protection under the law. If the Supreme Court upholds this brilliant reasoning, it will have to explain why plural marriage is not also a candidate for equal protection.
Meanwhile, the will of some seven million Californians has been traded in for the opinion of one judge, democracy, hard at work. That’s seven million opinions not being tolerated for the sake of tolerance. Whatever a person’s view of gay marriage, I would think they’d find this a disturbing trend. We do not yet know how the Supreme Court will rule but we do know that such decision making is now in the sole hands of our judiciary.
I don’t mean any disrespect for the honorable profession of magistrates. The Supreme Court is our third branch of government with an important role to play. When unusual situations arise, it falls upon the courts to apply our constitution. I suspect that’s what many people mean anyway when they use the word “interpret.” But it is a false idea that judges can legislate from the bench with unchecked power over the other two branches of government, free to overturn laws at will. Such usurping of authority was the farthest thing from the minds of our forefathers. The constitution is a clearly written document. It had to be. The authors knew a whole country would be governed by it. They did not wish to confuse us. They did not write in riddles or parables. Neither is it poetry or symbolism. If we know how to read, we do not need anyone to tell us what it means. With all due homage to those who graduated law school, I have a message for everyone else: You do not have to be a lawyer to comprehend the constitution. Most people will challenge you for having such brass. But Thomas Jefferson will be on record agreeing with you. You’re not in bad company.
Share this on
