|VOL. 14, NO. 2||March 28, 2012|
The Constitution Must Win in 2012, II.: The Myth of Judicial Supremacy
This week the U.S. Supreme Court is hearing one of the most significant and highly publicized economic policy cases since the New Deal years, perhaps in its entire history — the constitutional challenge to the massive health care overhaul pushed by the Obama Administration fiercely and under circumstances of Democrat Congressional leadership questioned by many as not representative of the American people's will. The virtually unquestioned assumption at the time of the legislation's passage was that a more-or-less final decision on the legislation would await a U.S. Supreme Court hearing on the package has been virtually without comment.
As we explained earlier, a substantial portion of that answer lies in long-standing "myths" about courts and judges. These "myths" are falsehoods that the American people and also many politicians have doggedly believed — falsehoods which Reconstructionist judges have grabbed as a shield behind which to hide as they "frolic with abandon across our constitutional landscape, rendering decision after decision in violation of the Constitution and the will of the people."
At least three such myths have fueled judicial supremacists' power grab. Two of these we have already examined — the "myth of objectivity" and the "myth of legitimacy." Today we dissect the third myth, which makes the first two even more lethal — the third being the "myth of supremacy."
This myth declares the U.S. Supreme Court to be the supreme interpreter of the Constitution to whom no other interpreter can claim to be superior — or even equal. But this nefarious notion has no support in the provisions of the Constitution, the purposes of the Framers, or the principles of American government which are clearly established by the Constitution. The basis for the supremacy myth is the Court itself.
As Constitutionalist legal scholar Charles Rice explained in 1981, "Prevailing opinion today regards Supreme Court decisions of constitutional issues as the supreme law of the law. It is often overlooked, however, that it was not until 1958 [in Cooper v. Aaron] that the Supreme Court made that claim for itself. Indeed, Rice warns of the lethal danger associated with the supremacy myth in pointing out that, "[i]f the power to interpret the Constitution is given finally and irrevocably to unelected judges who enjoy life tenure and who are practically immune to the sanction of impeachment, the ultimate subordination of the other two branches and of the duly expressed will of the people is predictable [emphasis added]. This is, of course, judicial supremacy.
Rice was only one in a long line of able American legal scholars to debunk the myth. One of America's greatest early Twentieth Century constitutional scholars, Edward S. Corwin, declared in 1936 that, "The finality [of a Supreme Court interpretation of the Constitution] ought, it would seem, to be confined in strict theory, to the case thus decided [that is, the case actually before the court at that time] . . . ." Corwin further declared that the Congress and President "are vested not only with the power but with the duty to read the Constitution for themselves." To do less, says Corwin, is for the other two branches of government "to abdicate their own official function of independent judgment on the plea that such [USSC] opinions are the authentic Constitution." And the other two branches are "not entitled to [engage in such an] abdication."
This contemporary Constitutionalist opposition to judicial supremacy has its roots in the very writing of the Constitution. Both Federalists and Anti-Federalists opposed the idea of a too-powerful judiciary. Alexander Hamilton in Federalist Number 78 eloquently stated the Constitutionalist position:
It may truly be said [that the courts] . . . have neither FORCE nor WILL but merely judgment . . . . This simple view of the matter . . . 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 . . . .
Hamilton further argued that, "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; . . . ." And James Madison, the Father of the Constitution, vigorously declared that there is no principle "that any one department draws from the Constitution greater powers than another in marking out the powers of the several departments."
This Federalist opposition to judicial supremacy was stoutly echoed by the Anti-Federalists. Thomas Jefferson asserted that "to consider the judges the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy . . . ." Furthermore, for the judiciary to assume such a role would convert the Constitution into "a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please."
America's greatest constitutional scholars, both early and contemporary, thus debunk the "myth of supremacy" as being anti-constitutional and subversive of the most important foundational principles of our republic. It is imperative in the 2012 elections that we Constitutionalists make judicial supremacy the central issue that it deserves to be and that we fight most diligently for candidates who will actively support the selection of constitutionalist judges and Congressional action to curb the courts and Revive the Constitution!