March 2018
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The Role of the Supreme Court

The United States Constitution is a contract between the states giving the national government only limited and enumerate powers. (Most are found in Article One, Section Eight.) The Constitution is unique in that its creators recognized that rights are God-given and it is the function of government to protect those God-given rights. As with all contracts, it should always be interpreted as to the original meaning and intent.   If you buy something and sign a contract as to the payments, you don’t expect the terms to be changed. So it is with our Constitution.

But that has been greatly undermined by decisions of the Supreme Court.

Although Chief Justice John Marshall has been touted as a Supreme Court icon, his role has been less than desirable. In 1816 he made a ruling which was clearly a breach of constitutional limitation on congressional power. His ruling was based on the fallacy that “… let the end be within the scope of the Constitution, and all means which are appropriate … which are not prohibited but consistent within the letter and spirit of the Constitution …”   In other words, the federal government can do anything the Constitution does not specifically bar it from doing. This has set a precedent that has been destructive to our freedoms ever since. Example, because the Constitution doesn’t specifically say that the government can’t dictate medical care or that it can’t round up all people who pledge allegiance to the flag and put them in detention camps, it is entitled to do so.

Another departure is what is known as The Elastic Clause, which gives Congress the power “To make all laws necessary and proper for carrying into execution the foregoing powers and all other powers vested in the Government of the United States, or any department or officer thereof.” This has been misconstrued to apply to any and all things considered to be “proper” totally ignoring the part that says that it applies “to the foregoing powers and all other powers vested “ – only the enumerated powers, but nothing more. The enumerated powers are the specific things listed in the Constitution that the states authorized the federal government to do.

Why would those who formed the Constitution list what the government could do if, according to adherents of Marshall’s philosophy or the “Elastic Clause”, government could do anything it wants?

And likewise, are those who use the “Welfare Clause” which authorizes Congress to “provide for the common Defense and general Welfare.”   The definition of welfare is key. At the time of the writing of the Constitution it meant that Congress was to arrange for the conditions throughout the nation that would allow every citizen to prosper. In no way did it mean government handouts.

It is generally believed that it is the function of the Supreme Court to “interpret the Constitution.” But actually it is their role to determine whether or not a law is constitutional. More often than not, they should declare it unconstitutional and send it back to the states or the people.

The first sentence of the Constitution clearly states that “All legislative powers herein granted shall be vested in a Congress of the United States.“ Since all legislative powers are granted exclusively to Congress, none are given to the Judiciary. (For that matter that also applies to the President.)  Yet we are all too familiar with the many court rulings that are, in fact, the equivalent of a law.

Then, too, there is the disregard for the Constitution when it comes to Treaty Law.   The often heard “treaty law supersedes the Constitution and is the law of the land” is quite simply – NOT TRUE. What the Constitution states is that treaties that are pursuant to the Constitution are the law of the land. “Pursuant to the Constitution” makes the difference.   Only those treaties that are consistent with the terms of our Constitution are the law of the land.

One of the arguments used to promote a constitutional convention/Article V convention et al, which is a very risky measure, is that it is the only way to rein in the overreach of the Supreme Court. But, once again, that is not so.

Although we hear that “The Supreme Court Justices serve life terms,” more accurately, they only serve at the pleasure of Congress which has the responsibility, when needed, to impeach, try and remove them from office.

And, in another opinion, Marshall proclaimed that the Supreme Court would have the final say on what is constitutional and what is not. But this ignores constitutional checks and balances. .

One way that Congress can check the Supreme Court rulings is to exercise the power of the purse and refuse to fund their unconstitutional rulings. An example would be their ruling on ObamaCare. It is clearly unconstitutional; health care is clearly not listed as an enumerated power in the Constitution.  But government cannot carry out any actions supporting ObamaCare without funds.

Another way that the Constitution provides checks and balances in regard to the Supreme Court is that of limiting their jurisdiction of any particular matter. Article lll, Section 2 states that “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.” A majority in the House and Senate could have prevented the court from ruling on such matters as housing, congressional district makeup, education, energy production and all other unconstitutional measures.

Then there is State Nullification. If a state should determine that a federal law is invalid because it steps outside the boundaries of the Constitution, then that state can determine that the law is invalid.

Those who disagree cite what is called the Supremacy Clause, which they interpret to say that federal law is supreme over state law. But, what does that clause say? Article Six, paragraph two states: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the land. The unknowing – or perhaps deliberately misleading – contend that this clause says that U S law trumps state law. “Thereof” refers to the Constitution. Thus laws are to be made in pursuance to the Constitution. What about “shall be made in Pursuance”? Pursuance means following or in keeping with. Thus only those laws that are in keeping with the Constitution are the supreme law of the land. Those not in keeping with the Constitution are not valid laws. In order for them to be constitutional they must be found in the enumerated powers – those that are allowed and listed.

Whereas it is true that states cannot pick and choose which federal laws they choose to obey, the litmus test is whether the law is constitutional. And, who is to say what is constitutional? The states. It was the states that formed the contract that spells out the rules. If a law is found within the listed powers in the Constitution, then it is constitutional. That power was ceded by the states to the federal government. But, if a law is not found in the listed powers, powers that were not ceded, then it is unconstitutional and the Supremacy Law does not apply as trumping state laws.

Any law that abridges the right to keep and bear arms falls into the same category. The Constitution specifically prohibits Congress from making laws that infringe on the right to keep and bear arms. Any such law – or judicial ruling or executive edict – is unquestionably unconstitutional and does not have supremacy over state laws.

The better question would be: When does federal law trump state law? It is clear that it does so only when the federal law is constitutional, i.e., when it is found in the enumerated powers.

What can be done? Inform the electorate in order to elect members of Congress who will honor their oath of office and rein in the Supreme Court.

By Sue Long

The Committee for Constitutional Government, Post Office Box 972, Gloucester, VA 23061













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