It seems that every June we sit on the edge of our seat waiting for the final opinions from the Supreme Court’s current session. Invariably, there’s at least one opinion that makes you wonder if the justices have ever read the U.S. Constitution. This session was no different.
The Supreme Court expanded the scope of the 1964 Civil Rights Act, refused to defend the Second Amendment, and opined that a policy implemented by a prior president’s executive order could not be rescinded by a subsequent President’s executive order. Keep in mind that executive orders are intended to establish administrative processes so that the executive branch can implement laws passed by Congress.
The confounding fact is they will claim they are following the Constitution. Actually, we have two constitutions. We have the one written by The Framers in 1787 and constitutionally amended 27 times. That Constitution can fit in your pocket and is less than 3,000 words.
Then, we have that same Constitution, plus all the Supreme Court cases interpreting what the Constitution says. That constitution is about 2,800 pages and weighs several pounds. It is the second one that the Supreme Court and the rest of the federal government follows.
While there have been plenty of cases where the Constitution has been properly applied, there have been atrocious decisions as well. Here are a few examples:
- The Dred Scott decision upholding slavery
- Plessy vs. Ferguson defending segregation
- Korematsu stating the federal government could intern American citizens
- Wickard vs. Filburn expanding federal regulations
Each of these decisions violate our founding principles and the intent of the Framers. The purpose of the Supreme Court is to hear disputes between parties or legal challenges to federal law. Justices are supposed to apply the Constitution based on the original intent to these cases. They rule in favor of one party or determine if a law is constitutional or not. Increasingly, opinions are written to change passed law and make it constitutional in the eyes of at least five justices.
The Framers never intended for the Supreme Court to have this kind of power. In fact, they regarded the judiciary as the least likely to abuse its power. Now, 233 years later, it is clear that was a very poor assumption.
As concern grows with an unelected activist branch of the federal government, note that there are six processes in the Constitution to impeach a justice. That’s more than any other position created by the Constitution.
The Founding Fathers never argued for the judicial branch to have this power. It was not advocated for in the state ratification debates. The states would never have ratified the Constitution if the judiciary had been given such authority.
We have no effective recourse against Supreme Court opinions. We must have checks and balances on the Supreme Court, and a Convention of States can do that. This falls under the scope of our resolution to limit the jurisdiction of the federal government.
Imagine if a two-thirds or three-fourths supermajority of state legislatures could reverse a Supreme Court decision? That may incentivize the nine Supreme Court justices follow their oath to defend and protect the Constitution.
In liberty,
Brett
