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I was recently debating a friend over the merits of Newt Gingrich’s recent comments that the Supreme Court’s power should be reigned in. We sparred over a Boston Globe article that quoted Abraham Lincoln as stating,
“If the policy of the government upon vital questions affecting the whole
people is to be irrevocably fixed by decisions of the Supreme Court
the instant they are made . . . the people will have ceased to be their own rulers.’’
The author of this piece in the Globe (and myself) used this quote as evidence that Lincoln wouldn’t have approved of the current supremacy of the Supreme Court overreach. I was corrected. President Lincoln went on to discuss how the Dred Scott decision could eventually be overturned and in fact exclaimed, “we offer no resistance to it.”
When I got to thinking about it, the case of Dred Scott truly is an excellent example of what is so wrong with the Courts.
The facts of Dred Scott
Dred Scott was a black American slave born into slavery, in my home state of Virginia. He was later sold to a slave owner in Missouri. Around the middle of Scott’s life, his owner died. Scott offered to buy his freedom from his owner’s widowed wife. She refused. So Mr. Scott filed suit for his freedom.
Slavery was outlawed by federal law in the northern states. While accompanying his owner to Illinois and Wisconsin, Mr. Scott had been held as a slave. The problem was that these were free states. The legal principle of the time was “once free, always free.” Meaning once you step into a free state, you were henceforth free.
Mr. Scott claimed that when he set foot in a free state, he was rendered free. The jury of Mr. Scott’s peers awarded him and his wife freedom but the state Supreme Court stepped in and reversed. Eventually he filed in federal court and the case was taken up by SCOTUS.
The Supreme Court held that because Dred Scott was not a person, he had no standing to bring suit and that because he was nothing more than mere private property, Congress could not regulate his activity within state law. The Court stated that Mr. Scott could not be taken from his owners without due process of law as guaranteed to them under the Fifth Amendment. Through a series of events, Mr. Scott was eventually freed by his owners and lived 17 months of his life as a free man.
Supreme Court Power
I was discouraged to learn of Lincoln’s wait-and-see approach to human rights in this country. While I may have misquoted Abraham Lincoln in my original argument, the clarity of perspective on the Court I received in return has surpassed my original argument tenfold.
What if the President had stood up to the Court? Could executive pressure made a difference?
The supremacy of the Supreme Court in dictating law to a divided country did little to bring us together. It never does. Instead, it divided us further. It preempts the democratic process. When courts bypass the people with their laws, people feel like the government no longer listens to them and it makes it impossible to accept their rulings. But that is what the Supreme Court does, it takes issues out of the hands of the people and instead tells us how it is going to be. It acts to fracture our social contract.
Look what campaign finance through Citizens United has become. Although I agree with the decision, it has created a divide over how we should do things in this country. It is going to continue to be a huge campaign narrative throughout this election.
Slavery and the Courts
Slavery throughout England and France was abolished through parliamentary action rather than through a civil war. What if the Court had instead chosen protect individual liberty rather than slave owner property rights?
Over the years, the Court’s delving into social issues best left to Congress to deal with, has been overwhelmingly wrong.
How do we stop the Court?
The Courts tell us that we must ratify a Constitutional Amendment in Congress with a supermajority of the states, while a simply majority of five suffices for it’s own judicial review not enumerated anywhere in the Constitution.
It is not only that there is no Constitutional authority for the Supreme Court’s power, save its own declarations, the decisions of the Court have often been reckless and dangerous. The Courts upheld slavery early on in America and it propped up big business in the early 1900′s, when big business truly did harm the working man. During the past century, it has made a mockery of the first Amendment with religious circus tests that ensure that Jesus or Mohammed cannot be displayed unless Rudolph the red nosed reindeer follows in tow. These five people have told us what to teach our children in schools, how to spend the money that goes to schools. Since 1973, the Court has once again taken to defining who a person is under the 5th and 14th Amendment. The Court tells us how long affirmative action can last for and has redefined how easy it is for the government to take your property against your will for financial reasons.
In a nation that is divided on every single issue, how will a constitutional amendment ever be ratified again? It is an impossible hurdle to climb. If only Supreme Court law was as strict on itself as the legislature is.
Again, this isn’t about bringing judges in front of Congress to testify. But Congress needs to stand up for itself. They are the representatives of the people. And the Constitution is a contract of the people. Not a contract of five Harvard graduates. We need an executive willing to stand up for the people.
The mere fact that Dred Scott was a slave almost his entire life, is proof that the Court gets it wrong. Newt Gingrich’s assertion that the Courts should be held accountable for their opinions isn’t far off. Had we had a president willing to ignore the Court’s decision in Dred Scott, maybe Mr. Scott would have gotten his life back. The three branches of government should be equal and accountable to one another. One branch can’t be superior to the others or the republic no longer works. I hope that we get an executive soon that is willing to stand up to a majority of five.
See my original article here: http://griffinelection.wordpress.com/2011/12/20/newt-is-right-we-need-to-reel-in-scotus/