[Editor's Note: This post is, in part, a follow-up to one of the
VoterVault's earliest (and most read) posts. For more background and thoughts on this matter, go back and check it out. End Editor's Note]
And so it was in November of 2003 that the Supreme Court of Massachusetts, in a 4-3 decisions, sparked one of the great controversies of the Culture War by institutionalizing gay marriage. This year, three more Supreme Courts will take up the issue: California, Connecticut, and Maryland.
Let's put this up front: this post is not about gay marriage. It is about the courts. It remains my contention that the Supreme Court of the United States--and the Supreme Courts in the states have followed their lead--has overstepped the bounds intended for it by the Founding Fathers. The Founders intended for the Courts to be the weakest of the three branches. Congress was to have the most power, followed very closely by the President, and coming up in a distant third was the judicial branch. That is why Article I of the Constitution deals with the Legislative branch, II the Executive, and III the Judicial. That was the intended order of importance.
In modern American, the Courts now dominate.
The reason gay marriage is worth discussing in this context is that it shows, quite clearly, the immense power contained in the hands of Supreme Court justices. It was in 1996 that the issue of gay marriage first entered the national spotlight. A state judge in Hawaii became the first to rule on the side of gay marriage. The voters in the state then reacted by amending their Constitution to wrest control over who defines marriage from the court's hands. Only their state legislature may define who can and cannot receive a marriage license.
Fast forward to 2004, and the now famous Massachusetts Supreme Court decision. Unlike many other states, the people in Massachusetts have no power to amend their own Constitution. Despite the fact that the vast majority of the people of the state opposed gay marriage, the Governor opposed gay marriage, and the position of the majority of those in the state legislature opposed gay marriage, the Supreme Court was the only body that mattered. Gay marriage thus came to be.
In the flurry of backlash against the Court decision we now stand, three years later, with 27 states having amended their Constitutions to ban same-sex marriage. Massachusetts itself is considering such a measure (though it would immediately replace the institution with civil unions).
If the Founders were aware of this debate they would be rolling over in their graves, and not just because their 18th Century sensibilities would be shocked (though they would). What would be even more shocking would be the realization that the biggest mistake they made in forming the Constitution was not putting a systematic check on the Court's power.
Those who founded our country never intended for our Constitutions to have to be amended to deal with specific policy issues. The Constitution was--and is--supposed to be a framework for governing. The Courts were supposed to deal with those things that the states and the Congress could not. They were meant to enforce the basic framework. They were not meant to be a policy-determining body.
The fact that every controversial issue that arises is bound for the Supreme Court--the only unelected, unaccountable, uncheckable body in our government--further supports the idea that the Courts have overstepped their bounds.
Yes, such judicial activism can be used for good (see Brown v Board), but such cases are the exception to the rule.
Our democratic process is supposed to work in such a way that the Congress passes laws and sets policy, and the President ensures that such a law is appropriate, enforceable, and Constitutional. The Courts subvert such a process by imposing their will through interpretations based more on their own worldview/philosophy than on the Constitution.
In short, the Supreme Court, which claims to uphold the Constitution, violates its basic tenents when it creates law rather than interpreting it.
Political analysis from a (hopefully) intelligent conservative perspective.
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8 comments:
This whole situation is fuzzy to me. You say that the court has the power to deem a law unconstitutional, right? You also say that the court does not have the power to make policy. Isn't saying that a law is no longer valid very close to making policy? I think it will make is simpler if you say what the courts did that was bad and what they should have done according to the constitution.
gern,
Perhaps the distinction lies in the difference between "should" and "does".
The Court does have the power to deem a law unconstitutional. The Court was never intended, by the Framers, to have such a power. Yes, the Court can throw out a law. No, the Court was never supposed to be able to throw out a law.
You are correct that it would be easier to just say, "what the Court did here was bad, and they should have done such-and-such instead". But that is assuming too much. Even saying that presumes that the Court should be ruling on such things to begin with. This is the very reason why I respect Antonin Scalia so much. He routinely writes in his dissenting opinions that it is not the Court's job to be ruling on such a thing.
I've talked about this before in the comments' section, but I'm going to paste it in again, because I think it shows what I am talking about:
I sumbit to you this dissent, written by Scalia, for your reading pleasure. It was about the case where a guy named Casey sued the PGA Tour because the rules prohibited him from driving a cart, even though he was disabled, and therefore unable to walk:
"If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf–and if one assumes the correctness of all the other wrong turns the Court has made to get to this point–then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf."
I suppose if I were going to do as you ask, all I would say is that the Courts should leave it up to the legislatures. If a state legislature, elected by the people, and accountable to the people, legalizes gay marriage, so it shall be. If they ban it, so it also shall be. It should be the Court's position to defer to the legislature on any issue outside the purview of their Constitutional authority.
Did you hear this about Edwards and prayer? I thought it was interesting, what do you think?
http://www.breitbart.com/news/2007/03/05/D8NM9S8O2.html
-JW
My friend, that should be "tenets," not "tenants" in the last paragraph. Tenants are people who pay a landlord rent.
Couldn't one make the case that the Constitution has lasted so long because of, rather in spite of the courts? As you yourself note, there have been many times when the Constitution has been correctly applied only because of the ability of the Courts, as an unelected body, to rise above the political considerations and do what is right-- no pun intended. I am not too sure what you mean by "original intention" of the founders, either, given that the ink was not even dry on the Constitution before it was necessary to change it.
I think people of every era have put the stamp of their sensibilities on our Constitution.
What do you think would have happened if the principle of judicial review would have never been developed? I wonder if our Constitution, like many others around the world, would have instead become a dead letter, and law in this country would be a hopeless mishmash even less true to Constitutional principles.
The Constitution is only relevant if every law has to conform to it as the fundamental law of the land, and the only branch of government that has any will to ensure that is the judiciary.
Another, gentle aside, from Scalia's comment: "Platonic golf?" That is a hysterically funny construction indeed.
Editor,
Thank you for your good grammar, and intelligent comments.
Your points are well taken, and are quite valid arguments. The Courts have almost certainly made decisions that are entirely laudable, even in such cases when they overstep their Constitutional authority. I do not pretend to make the case that their every decision is faulty; rather, that the general understanding of Americans--and a majority of those on the High Court--is fundamentally flawed regarding the role of the Court.
Could "one make the case that the Constitution has lasted so long because of, rather in spite of the courts?" Absolutely. However, I would counter that when judges use a loose interpretation of the Constitution they are in fact changing the meaning of the Constitution. This was to be a power reserved for Congress and the states. Certainly the same piece of paper remains with the same ink and the same verbiage, but it is hardly the same Constitution. By doing such they are not "preserving" it, but altering through a means that is not constitutionally allowable. The merits of their action in this regard are certainly debatable. I would obviously fall squarely on one side of that argument.
As you what I mean by "original intentions", it is true that they had to change it very quickly. But there is one massive distinction that must be made. The Founders used the very process they wrote into the Constitution to alter it. They did not say, "look, we need freedom of speech. Let's have the Supreme Court declare that some vague and ambiguous part of the document means that we must have this freedom." That would have been absurd. Yet that is exactly what the Court is doing now. The Founders used the amendment process. The Court now amends at will through their oft-overreaching interpretation. This is not how it was meant to be.
Additionally, it seems quite clear that the Founders originally intended for the Court to be the weakest of the three main bodies in the Federal government. When writing about the Court in Federalist #78 Hamilton said, "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them." The least capacity to "injure" or "annoy" what is written in the Constitution. Now they certainly have the most power to do that.
If we assume for a moment that it is correct that the Supreme Court is primarily responsible for allowing our Constitution to endure for so long, we must ask what price we have paid for that. Consider a Court such as ours, with such incredible power and responsibility, being slowly but surely filled with people who choose to interpret away the rights of citizens. Surely the Constitution would endure, but we will have paid the price of our liberties.
As a society we seem all too willing to hand the Court power because, from time to time--and sometimes more often than not--we like the political outcomes of the decisions they have made. Laying such power in their hands violates both the words and spirit of our Constitution. They are not, were not, and should not be allowed to alter the meaning of our Constitution at their whim of their desire.
Just wanted you to know that it has been ten days.
Eight if you don't count the weekends.
I'll be back tomorrow.
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