Each June, we sit on the edge of our seats anticipating the year’s SCOTUS rulings on many issues of the day. And this year, the Supreme Court didn’t disappoint – at least if you believe in the Constitution. This session, a majority of justices opined in favor of school choice in the Maine case, the Second Amendment in the New York case, religious liberty in the Coach Kennedy case, and the right to life by overturning Roe v Wade.
Each decision was aligned with the text and original intent of the US Constitution. Each was a remarkable decision and we should celebrate every victory. But, it's not supposed to be this way. A look at our founding documents explains why.
In Federalist 78, Hamilton stated, "This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power. That it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive."
And Jefferson warned, "to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."
Today, there’s little argument that the lines between courts and the legislative and executive branches have blurred. The Supreme Court has become the "ultimate arbiter of all constitutional questions," just as Jefferson feared. Five people have the ability to create legislation, mold duly passed legislation into something else, and decide major issues of the day that deserve public debate. We the People have no recourse. Or do we???
This judicial oligarchy picked up steam in the FDR administration. In an effort to gain the Court's imprimatur for his New Deal, FDR pushed to increase the number of Supreme Court justices and to ‘pack the Court.’ A Democrat-controlled Congress and his own vice-president blocked his efforts. But the message was sent. Congress would take no action to limit the jurisdiction of the Court, as long as the Court continued to justify federal overreach. The result was a 60-year period where the Supreme Court refused to prevent Congress from expanding its power.
Democrats today are again talking about packing the Court to receive the decisions they prefer. There’s increased discussion about abolishing the filibuster to place the 1973 Roe ruling in federal statute. All this, on the heels of the Supreme Court affirming the federal government does not have jurisdiction in the matter. Yet, Congress has the power to restrain the jurisdiction of the courts. They simply refuse to do so. So now what?
The Framers provided a remedy to address a judicial oligarchy. It’s the convention of states process and it is imperative we use it. Otherwise, we will wait for another June to have five individuals decide issues that are meant to be left to each state. As long as the federal government violates its constitutional authority, we will continue to watch the civil society decline.
In liberty,
Brett
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