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Where Does the Supreme Court Get Its Power?

By: drrobertowens (Diary)  |  March 30th, 2012 at 07:29 PM  | 

RESIZE: AAA

This week the eyes of everyone concerned with the continuance of limited government were riveted on the Supreme Court.  For three days the nine Justices heard arguments by the Solicitor General in favor of ruling the individual mandate which is the keystone of Obamacare constitutional.  They also heard the representatives of twenty-six States argue that it is unconstitutional.  This is the first time that a majority of the States have combined to protest an act of Congress.  Now We the People must wait while the fate of our Republic is decided in secret by our Black Robed rulers from whom there is no appeal.

How did we get here? 

We elect our representatives and they enact laws which are supposed to be within the framework of the Constitution.  It should be the expectation of Americans that those we entrust with our delegated sovereignty would craft laws in accordance with our wishes as expressed in the founding document of our government.  These laws should reflect our desire for limited government, personal liberty, and economic freedom. 

And the unicorns danced with the elves until the cow jumped over the moon.

The perpetually re-elected who control the two houses of our legislature make law with no regard for the limits, the spirit, or the letter of our Constitution.  In this case they have decreed not participating in Commerce is commerce, and that a penalty is not a tax, that is a tax, and then isn’t again.  After years of stepping so far over the line they have forgotten there was a line.  The Party of Power has finally legislated us to the point of no return.  If the court of last resort gives this power grab the green light what limits are left? 

Since the law was passed over the overwhelming rejection of the voters its validation would cement the dictatorship of the Party in the transformation ofAmericafrom what we have known into what we would never choose.  The Court appears to be our last line of defense.  But where does the Supreme Court get its power?

The Supreme Court is principally occupied in a task that has no basis in the Constitution.  The nine justices spend their time judging what is constitutional and what isn’t through a process known as judicial review.  However, when the delegates of the thirteen original States drafted the Constitution they decided after much debate not to delegate such a power to the judicial branch or any other branch of the new Federal Government.

If the Constitution doesn’t give this power to the Court how did they get it?  The surprising answer is that they assumed it unto themselves, and since no one stopped them they just kept doing it.  The process began in 1794 when for the First time they declared an act of Congress unconstitutional.  Then in 1803 they used a minor case Marbury v Madison to outline their justification for the process.  Since that time the belief that the Supreme Court is the ultimate judge of the constitutionality of anything and everything has become such a cornerstone of the American System that the average person erroneously believes the power was granted in the Constitution. Thus the first power grab has become our last defense against what could be the final power grab.

In other words we who want to see the rebirth of limited government are hoping the Supreme Court will use an unconstitutional power to save the Constitution.  We stand hat in hand waiting patiently to find out if the Commerce Clause can be stretched to give the central government unlimited power or will we step back from the precipice and wait for the Party of Power to try again.

Across the country we have watched as everything from abortion to gay marriage has been imposed upon us by the black robed tyrants of the Federal Bench.  We have watched as popularly passed referendums were overturned, and common sense laws such asArizona’s immigration statutes cast aside by activist jurists determined to force our nation into their mold.  Unelected and almost unaccountable these imperious lawyers on steroids hand down pronouncements from Olympus on the Potomac as the sons of pioneers meekly accept the rule of tradition and the arbitrary decrees of men instead of the rule of law our ancestors fought and died to establish and preserve.

Now the arguments are over.  The talking heads endlessly dissect what was said telling us what it means.  For months we will hear rumors and hints as we wait until June for the word from on high.  Is not purchasing insurance commerce?  Does the government have the power to compel a citizen to enter into a contract?  Is a contract made under duress valid?  Does Congress have the power to make the purchasing of a product necessary to maintain the status of a law abiding citizen?  If the answer to what should be rhetorical questions is not a resounding “NO!” we have strayed beyond the pale of liberty and are adrift in the seas of arbitrary power.

As we look to an unconstitutional process to save the Constitution perhaps we should reflect on the state of our Republic.  I would also recommend a deep study of the works of our Anti-Federalist fathers.  Since we are living in the world they predicted maybe we should take a second look at what they recommended as an alternative to what we have become?

Dr. Owens teaches History, Political Science, and Religion for Southside Virginia Community College.  He is the Historian of the Future and the author of the History of the Future @ http://drrobertowens.com © 2012 Robert R. Owens drrobertowens@hotmail.com  Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens

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  • barleycorn

    I find it impossible from reading the Constitution to agree that the Supreme Court is not given the power to hear cases against Acts of Congress.

    The Supremacy Clause states:

    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    What are the judges being “bound thereby” if not a responsibility to rule against laws that are not “made in Pursuance thereof”?

    Taken with this line from Article 3 Section 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.”

    It seems blindingly clear that the Supreme Court is empowered to overturn Acts of Congress.

    Furthermore if Congress passes a law that might violate the Constitution who would make the decision if not the Supreme Court.

    Some of your comments are interesting but frankly we have enough of a mess to deal with in this country without tilting at spectral windmills.

    • Viet71

      The Supremacy Clause fixes the relationship of the states to the national government. It provides no basis, explicit or implicit, for judicial review of acts of congress by the Supreme Court.

      Where I do agree is that, “if Congress passes a law that might violate the Constitution who would make the decision if not the Supreme Court”?

      FWIW, I’ve always thought since con law days that judicial review is IMPLICIT in Article III and that Marbury v. Madison is more than a mere affirmation of the obvious.

      Disagree, therefore, with your “blindingly obvious” postulate.

      • barleycorn

        When I read your comments it seems we agree more than your subject line would indicate.

        “Blindingly clear” was a bit hyperbolic given that nothing in law is ever blindingly clear to opposing consul.

        I cheerfully admit (proclaim) that I have no legal training and thus bring to the table only a layman’s understanding of the Constitution. However I do understand plainly written English quite well and believe the Constitution is written in easy to understand language.

        I don’t believe the founders had any desire to play semantic games with succeeding generations.

        Therefore to my reading the Supremacy Clause makes it very clear that laws that Congress passes must adhere to the Constitution:

        “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof”

        Once it is agreed that laws MUST adhere to the Constitution there must be some entity which makes that decision. It clearly can’t be Congress itself. The President is not so empowered. That leaves the Courts.

        The Supremacy Clause goes on to say:

        “and the Judges in every State shall be bound thereby”

        So the Judges in every state are bound by the Constitution which states that all laws must be in “Pursuance thereof”.

        The Supreme Court in turn in 3.2 is given either direct or appellate power.

        So to me its clear as a practical matter that the Constitution empowers the SC to rule Acts of Congress un-Constitutional.

        • aesthete

          Well done.

  • Dave_A

    Without the Supreme Court having the power to serve as protectors of the Constitution, no one has that power – which essentially leaves the Constitution at the mercy of the good will of Congress.

    Accepting the tradition of judicial review as one of the many ‘operating principles’ carried over from the UK system gives us a check on Congress’s legislative power that’s far more effective than hoping a perticular overreach will be remembered on election day.

    • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

      that Bork describes in that book, and effectively amend the Constitution while pretending to uphold it and thus usurp the power of We the people to self government. Bork has proposed an amendment that would allow majorities of both houses to reverse a SCOTUS decision and thinks it would be rarely used due to the court caring about its prestige.

      • JSobieski

        nt

      • Viet71

        Unpopular but good decisions like Citizens United, which is widely misunderstood on the Left and among indies, would be reversed by congress in a heartbeat, if those worthless members thought reversal would bring political gain.

        More fundamentally, implementation of Bork’s idea would weaken gravely the judicial branch and the system of checks and balances.

        Over the long haul (many generations), judicial review coupled with life tenure is the best guarantee of individual freedom. Any doubt, just read Sotomeyer’s concurrence in the recent Sackett opinion.

        • JSobieski

          at least not if reversal required a super-majority, say sufficient to overturn a Presidential veto.

          Bork’s idea is bad because of the low threshold. Raise the threshold to a 2/3 vote and it makes a lot of sense. Adding a time limit on Congressional action to respond also makes sense.

          Otherwise, over time, cases would be reversed and re-reversed.

          Take abortion. With a simple majority, Roe would have been flipped back and forth several times by now. Even with a super-majority, it likely would have flipped 3 or 4 times.

          • lapert

            The amendment process already exists for Congress to propose, and the states to ratify, changes to the constitution if they don’t like the way it was interpreted.

            I don’t think a process that takes away state ratification is a good idea – particularly in this context where we are dealing with a federalism issue. If for some reason they did have a super majority in congress to amend the commerce clause to allow for a healthcare mandate – would we not want the states to have a say on that?

          • Viet71

            no text

          • JSobieski

            I am thinking cases like Roe v. Wade.

            It is different to undue bad constitutional law rather than to enact a constitutional amendment.

            I think those differences merit at least slightly different requirements.

          • lapert

            What would distinguish a situation where congress is reversing a power grab by the court or reversing an attempted power grab by congress over the states or the constitution that the court prevented?

          • JSobieski

            to negate a bogus SCt ruling, you need some type of super-majority in the House and Senate which is only allowed to negate (i.e. veto, vacate, etc) a decision by the US Sct.

            What Bork and I are supporting is a power to return to the prior SCt decision status quo—different than an amendment power.

            Unlike Bork, I would require some type of supermajority and put some kind of time limit on it–say two years to vacate.

            It wouldn’t impact the actual litigants—it would just negate the going forward precedent.

          • westcoastpatriette

            and that is that the States should be able to veto Congressional legislation that clearly violates the States’ powers as articulated in the 10th Amendment. That is something that bothers me about how the States are virtually left to the mercy of federal powers to arbitrate issues that impact the them. I think the States should be allowed veto power if a simple majority of them vote to veto.

            States have been virtually trampled upon by the Congress, the Supreme Court and the Executive branch and to me it is a huge conflict of interest to let a branch of the federal government be the final arbiter of when the States powers have been usurped, Clearly, this arrangement has failed to protect the States and the people from federal abuse and usurpation and something needs to change in this regard.

          • lapert

            A bogus SCt ruling from a legitimate one? If a super-majority of congress decided that it is bogus for the Supreme Court to decide that the 2nd amendment is incorporated against states they could just vacate McDonald? If they decided that the federal government does have the power under the commerce clause to institute gun free school zones they could just vacate US v. Lopez with a super majority?

            The difference between ‘changing things’ and ‘bogus ruling’ is in the eye of the beholder. I think our current balance has worked relatively well for two centuries and I am not seeing the pressing need for overturning that balance of power to the benefit of the federal legislature.

          • JSobieski

            So let me repeat without the loaded words:

            Congress could vacate the precedent of a Supreme Court ruling by a supermajority vote.

            This wouldn’t allow Congress to amend the constitution by bypassing the states.

            That is my proposed modification of Bork’s approach.

          • JSobieski

            Just because the immediate issue before us is Obamacare, we shouldn’t forget that the courts in the US are in fact out of control.

            Our current approach is NOT working all that well—at least not over the past 50 years.

          • lapert

            I much prefer the out of control of the courts of the last 50 years to what we would have from an unchecked super majority democratic congress that could vacate supreme court decisions – even if they are recent.

            Once you say they can vacate a ruling, you are giving them the de facto power to amend the constitution – or act in any manner a super majority sees fit and claim it is constitutional.

            A super majority of the current congress wouldn’t vacate the court if upholds obamacare (or overturns it) either. I don’t think any congress since Roe would have had a super majority that would have vacated it either. That really is beside the point – the whims of the legislature and the executive I think will always be more important to control than what we get from even out most overactive supreme courts.

          • JSobieski

            My approach actually enhances the status quo in most instances.

          • lapert

            Actually, you are doing both, You are giving congress the ability to negate the SCt whether they are ‘applying’ the constitution as intended or ‘amending’ it with novel creations – your only distinguishing method is an interpretation by congress of which it is. I’d rather that ability have more controls on it than just the vote of the federal legislature – which I think is more true to the balances the founders intended as well.

          • JSobieski

            So your argument that is the power to amend the Constitution is inaccurate. The power to negate is not the power to amend. The power would by definition not be sweeping—since it would only impact 1 decison—and be incapable of impact long established precedent.

            The judiciary is out of control. I don’t see you proposing a solution. I proposed what even you admit is superior to Bork’s idea.

            To characterize my solution as allowing Congress to affirmatively amend the Constitution is misleading and inaccurate in my view, as the Constitution itself distinguishes between affirmative powers and the powers of negation.

            Is a Presidential veto the power to legislate?

            The Founders would say no, because it is far more limited than acting as a substitute for the legislative branch. A veto is the negative power of negation, not the affirmative power of law making. A veto is a power that is limited to a reversion to the SQ.

            Yet you characterize my idea as giving Congress the power to amend the Constitution. I think the analogy to a Presidential veto is quite good. If you want to add a Presidential signatory requirement, I wouldn’t object.

            I am merely proposing to give to Congress a limited ability to hedge against judicial overreach in the same way that the President is a hedge against Congressional overreach.

            Had Marbury v. Madison been written into the Constitution from the very beginning (a material oversight), it is not difficult to conjecture that the check given to the SCt would itself be subjected to a check by another branch of government.

          • lapert

            So if you have an opinion that cites precedent claiming XYZ, and congress negates that opinion – what are appellate courts supposed to do? Is the negation saying the court misread the precedent and so in future cases act as though the opposite is true, are they supposed to ignore the latest case and then interpret the precedents themselves as they understand it?

            If it is the former, it is de facto amending the constitution, if it is the latter it is a legal muddle and just pushes power down. Is there a third possibility of how it works in practice? IF the court rules that the mandate is unconstitutional because it isn’t within the power of the government under the commerce clause and congress were to negate that, would that mean that mandate is within the power of the government under the commerce clause?

            And I would challenge your premise that the courts are so out of control that something need be done. I’m fairly content with the judicial process, even if I want to see some of the outcomes reversed. I am much more in fear of the out of control possibilities of a legislature that controls the ability to tax and spend with the power to vacate supreme court ruling that try to limit that power.

          • JSobieski

            As I have REPEATEDLY said, it is essentially vacating ONE decision as binding precedent going forward. It returns Constitutional law to the point that existed before the vacated decision.

            It is precisely analogous to a Presidential veto in terms of what then becomes the laws of the land.

            If something was against the Constitution based on prior precedent, vacating one decision won’t impact the ongoing judicial precedent. Future courts will cite the past precedent and the odds of future Congresses being able to pull of the same vote on the same issue will be low.

            Supermajorities are very difficult to get. What I am proposing is to have something between a flimsy statute and a rock hard constitutional amendment.

            I would humbly suggest that your assessments may be suffering from a recency bias given that the current big issue of the day is Obamacare.

            Who did you support in the primaries?

          • lapert

            Fine, but the state of constitutional law before a vacated ruling isn’t necessarily clear. You are essentially pushing judicial reviews down an appellate level.

            Come back to the mandate example (not because of recency but because it is a good illustration). If the ruling, whatever it is, were vacated, what would be the state of the individual mandate? Would it be the law in some circuits and not in others?

            If Roe had been vacated, what would the state of constitutional interpretation be? Would it revert to what the district court found the precedent to be (which was the same conclusion as the Supreme Court) or would it be something else? Would other appeals courts be held to the district courts ruling, the dissent from the supreme court, their own reading?

            See, I don’t think this is much like a veto of legislation at all (maybe excepting cases of original jurisdiction), because the court is the last authority up the judicial ladder. A presidential veto keeps a law from being enacted, a supreme court ruling being vacated leaves interpretation up to various appeals courts scattered across the land.

            As for the primaries, of the candidates that ever entered I initially supported Pawlenty. After that flamed out, I haven’t really supported any but have come to accept Romney as the best of a bad situation. Not sure why that matters though.

          • JSobieski

            The purpose of the Constitution is not to enhance clarity—the best way of doing that would be to avoid the separation of powers.

            Everything in the Constitution can be looked at as a mechanism for precedural delay to wait for super-majority to dissipate.

            All I have proposed is another mechanism by which the ability of one branch to definitely set a certain course is delayed by another.

          • JSobieski

            So say the SCt overturned Obamacare, and Congress somehow got a supermajority to negate—-the specific ruling survives (Obamacare is not the law of the land anywhere), but the case can’t be cited as precedent for the underlying holding, i.e. it is as if the case was never heard.

          • JSobieski

            So if the SCt overturned a law, the law would remain overturned.

            It is just that the precedent of that case was vacated.

            What I am proposing is a very limited remedy–a couple of extra procedural hurdles.

            Ultimately our Constitution is set of procedures that allows a super-majority that can extend itself over time to do what it wants. The Constitution sets up procedural and super-majority requirements to delay the political winds, but nothing in the Constitution prevents an extended super-majority from amending the Constitution to repeal all prior amendments.

          • lapert

            But any means of repealing all amendments (or adding new ones) required a level of acceptance by the states. And that is the key balance that your proposal (and Bork’s to an even worse degree) takes out.

            This should be particularly concerning in cases that try to reign back in the commerce clause.

          • JSobieski

            Second, the states have already let themselves get squeezed out with the direct election of Senators. States are pretty much helpless victims in the SQ.

            Third, if you want to modify my approach to substitute a vote of 2/3 state legislatures in lieu of Congress, I don’t object

          • lapert

            The states are not bypassed via convention, they are the ones who call for it.

            And yes, direct election of Senators are something I don’t really agree with – but there is no reason to compound our past mistakes.

            And I think it would be an improvement to your approach to substitute two-thirds of states legislatures for congress – but that is essentially the amendment process with just a different definition of super majority so I still wouldn’t see why the new process is necessary or likely to change outcomes.

          • JSobieski

            The point that you keep missing is that we need some type of remedy short of dramatic constitutional amendment or impeachment of a justice.

            Much of the damage done by the SCt is done to states.

          • JSobieski

            So Congress in 2012 could not vacate McDonald.

            The time limit would need to be more than 2 years, but no more than 4 years. You would want to have the opportunity to have one election between the outcome and the deadline for vacating.

  • avgjo

    I am working on starting a newspaper and magazine. (It may take several years, but I’m going to do it, God willing.) I have a friend who is a teacher at a prominent school and after a conversation we had, he is encouraging his students to go into journalism. (It is amazing how many Christian-conservatives and conservatives in general have no interest in journalism.)

    Journalism. Education. The Judiciary. We have to infiltrate them.. As important as
    technology and precinct projects are, they are not nearly enough, or even the most important things. It doesn’t matter if we get out the vote if our share of the vote is a sliver of the whole. If our party is a permanent minority party, controlling it doesn’t matter, either.

    You academics are smart. Can you, sir, give us some suggestions?

  • http://www.timelyrenewed.com timelyrenewed

    This is an excellent analysis. So, what’s the solution? Supposedly “conservative” Presidents, Congresses and Supreme Courts have all failed to significantly stop the growth of the federal leviathan, let alone roll it back. Instead we must now resort to the ultimate power the framers left us – amendment of the Constitution, not to change it but to restate and re-affirm its original limits on federal power.

    Of course, Congress will never initiate such amendments. Therefore, the fist step is to reform the amendment process to enable the states to initiate and pass amendments without having to go through Congress or the unused and archaic mechanism of a convention. See http://www.timelyrenewed.com

  • http://www.theprecinctproject.wordpress.com ColdWarrior

    Dr. Owens and I have had some emails back and forth and it turns out he’s got a lot of great ideas for what to do — and he’s had a lot of great experiences inside the Republican Party back during the Reagan Revolution here in Arizona. But I’ll let him share all that with you if he chooses.

    Your ideas are good ones. Yes, we’ve got to get more conservatives into journalism. Hollywood. Law schools. The classrooms.

    Obviously, the outcomes of the elections matter, too. As you mentioned precincts, I thought I ought to offer some “boots on the ground” perspective. Just today I learned the results of a strategy I used in my precinct here in Tempe, AZ, to try to increase the turnout of Republicans and Republican-leaning independents in my precinct. My precinct is out of the norm — it’s one of the few in Tempe that has all of its precinct committeeman slots filled. I decided to try to target those Republicans who voted 50% or less in the last four elections. We also targeted the independents who had asked for Republican ballots in recent primary elections. That meant each of the PCs had to “touch” only about 40 voters. (We figured most of the 3/4 and 4/4 (the “perfect” voters) would vote, as they are by definition those who vote 75% or 100% of the time, and we didn’t want to use our time chasing after those who almost always vote.)

    We had phone numbers for most of the voters via VoterVault and so we called them and then also dropped off campaign literature and a sample ballot with our favored candidates names circled and a short explanation as to why we favored them. We also included our contact information in case they had any questions.

    It took me less than three hours to stuff the literature into plastic bags, make the phone calls and drop off the literature at the voters’ doors.

    The race is non-partisan — the candidates’ party affiliations are not on the ballot. We had three conservative business owners running against union-backed Democrats.

    Our mayoral candidate got just about as many votes as the well-known son of a former mayor. He’ll be in the run-off on May 15 along with one of the two city council candidates we backed. One of our city council candidates got the third greatest number of votes. He’ll be in a runoff against a Democrat; the two union-backed incumbents in the race each received a majority of the votes cast and won’t be in the general election.

    So, how did we do? Voter turnout city-wide was 24%. Republican turnout in our precinct was 47.2%. Of the six Republican-leaning independents I contacted, all six voted. Of the 32 Republicans I contacted, 10 voted.

    I reported this to the candidates and their campaign managers in hopes they’ll employ this strategy in all the precincts. But to do it, they need volunteers, because only about 50% of the Republican precinct committeeman slots in Tempe are filled and about one third of the precincts have not even one precinct committeeman. And, some of the PCs won’t actually do anything. But, when you’ve got all the slots filled in a precinct, as my parents and aunts and uncles used to say, all of whom lived through the Depression (I’m referring to the Great one in the Thirties, not the current one), “Many hands make light work.”

    Another thing we need are better organizing tools. American Majority is touting Political Gravity:

    NationBuilder is another great tool.

    rVotes is another and, in my opinion, the best.

    Here’s one of the rVotes demo videos you’ll see at the rVotes web site about how easy it is to build a precinct walking list:

    Again, great ideas.

    I hope this helps.

    Thank you.

    ColdWarrior

  • avgjo

    Why should we expect them to pay attention to another, especially one designed to curtail federal power?

    Further, if the Congress won’t initiate such amendments, why would they intiate one which would take the power to make such decisions away from them? Are you suggesting one last use of the Con con before your proposed amendment? If so, you are suggesting a very dangerous thing, my friend. Very dangerous.

  • Viet71

    Like it or not, judicial review is enshrined in constitutional law. There’s no point in saying it’s unconstitutional.

    Legislating from the bench is a related but different matter. Miranda and Roe are examples of the Supreme Court’s legislating from the bench (making up rules out of whole cloth) while using the power of judicial review to strike down state laws.

    Legislating from the bench is rightly criticized. Judicial review, not so much, if at all.

  • avgjo

    trooper. And my comment was in no wise meant to denigrate your efforts.

    Further, I’m glad for the good results ya’ll are getting out west. Arizona is a beautiful place, and I loved the people; i hope ya’ll can keep it together out there.

    The reason I specifically mentioned the two items I did is that everytime ‘
    practical action’ is mentioned here, I notice that those are about all that anyone mentions. I have been away from RS and the news for a while ( with just brief interludes) and I have been doing some hefty, walk-the-beat research into media. And what amazed me in my (very conservative) area was how our own local media has taken a sharp turn left in recent years and how hardly anyone I know who identifies as a conservative even has an interest in media, teaching or related fields.

    The fact that Americans are getting more liberal socially, the fact that dependence on welfare doesn’t carry a stigma like it used to and the fact that there are not protests in the street over what Obama said to Medvedev is strong enough evidence (not even counting reliable (?) polls on sundry issues) for me that numbers of three-legged conservatives is dropping, and is why I made the comment that GOTV doesn’t mean squat if your pool of people to ‘get out’ is shrinking.