The Third Way To Tame The Court
By Bruce Walker (12/23/04)
I have written my last two articles on ways to reign in the Supreme Court and the federal bench. My first article, "The Nuclear Solution to Ending Judicially Imposed Atheism," was intended less as a theological statement and more of a statement of how to stop the federal bench from creating undemocratic edicts from whole cloth.
My second article, "Supreme Court of the People," described how to push Leftists on the political defensive by choosing attractive, popular, principled conservative politicians to serve on the Supreme Court, and how to extract maximum political damage upon Leftists who oppose these nominees.
There is a third option, and it has been used before. President Bush could note that we live in a time of national peril and that we also live in a time in which obstructionist Senate Democrats will not even allow his nominees to be voted on by the Senate. Based upon that, the Supreme Court and the federal bench in general lack the fundamental democratic authority which has been wielded over the last two centuries of American government.
Consequently, rather than have the Constitution interpreted by unaccountable and unelected judges whose replacement is blocked by a distinct minorities of Americans, President Bush will issue an executive order finding that the President of the United States, in times when his nominees cannot be voted on by the Senate, has the power to interpret the Constitution and that his interpretation, which is based upon a majority of the American people, supercedes the interpretation of judges appointed twelve years ago (or longer) in what are the modern equivalent of "rotten boroughs" in the Nineteenth Century House of Commons in Great Britain.
The Supreme Court itself has long recognized that the other two branches of the federal government also take an oath to defend and uphold the Constitution, and implicitly that these branches have the duty - and the power - to interpret the Constitution. The powers and the limitations on powers in Article I, for example, are self-executing: Congress is prohibited for passing laws ex post facto or any bill of attainder.
The First Amendment of the Bill of Rights, the most famous and perhaps noteworthy change to the Constitution, says "Congress shall pass no law..." The prohibition is directed against Congress, which means those elected officials in the Senate and in the House of Representatives (and, perhaps, the Vice President as President of the Senate.)
If there had been no Supreme Court or if there had been a Supreme Court, but no justices appointed or confirmed to the Supreme Court - which is not prohibited by the Constitution at all - then these prohibitions on legislative power would still been just as alive constitutionally, because the prohibitions were directed against the legislative power.
If no lower federal courts had been created by Congress or if these courts were denied the power to decide questions of federal law, as they were for the first century or so of the Republic, then the whole silly notion of a federal judge determining that Congress had acted "unconstitutionally" would have never seen the light of history.
The Constitution speaks in its limitations to the different branches of government. Congress can and cannot do certain things, and Congress should interpret when it is acting within the Constitution or outside the Constitution. Courts also are limited by the Constitution and its amendments, and the salient - almost always ignored - is the "Forgotten Ninth" amendment, which says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (emphasis added)
Construing the Constitution is precisely what the Supreme Court and lower federal courts pretend to have the power to do, and yet the Ninth Amendment is a clear attempt to limit what federal courts can do. As if to place an exclamation point on that prohibition, the very next amendment passed after the Bill of Rights, the first ten amendments, is the Eleventh Amendment, which tells federal courts, as bluntly as the English language allows, that the power of federal judges is limited. It reads thus:
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." (emphasis, again, added)
What happens when federal judges or the Supreme Court ignores constitutional prohibitions on judicial power? Congress is required to regulate itself. The President is required to act constitutionally. Both may, and have, either brushed the edge of the Constitution or stepped over the line, but in both cases the people have an admirable remedy: the vote.
Almost from the beginning, Congress acted unconstitutionally: it passed the infamous "Alien and Sedition Acts." This was a clear violation of the prohibition on federal legislative power, because it made certain types of political speech and press criminal. What prevented the young republic from falling into the abyss? The people swept out the Federalists and swept in the Democrat-Republicans of Thomas Jefferson.
There is no equivalent remedy for federal judicial unconstitutional behavior, and because the people are sovereign in a democratic republic, that requires a remedy. President Bush, who has won two presidential elections and has the votes in the Senate to confirm nominees to the Supreme Court, ought - as presidents throughout history have - the power to appoint to the Court men and women who are of good moral character.
If the power to control the judiciary is consciously divorced from popular consent and if the judiciary itself shows a willingness to act contrary to the Constitution, then the President not only has the right, but he also has the duty - if his oath of office means anything - to categorically reject the power of this new class of nobility (something the Constitution also prohibited, whether the nobility was inherited or acquired.)
What form would this take? How about an Executive Order to all officers and employees of the Executive Branch of government to accept the interpretation of the Constitution given by the Chief Executive, the President, when that is in conflict with the interpretation of the Supreme Court or lower federal courts?
If this sounds radical, then that is only because we have collapsed so far in those hedges against rule by judicial nobles that we have come to believe that the Constitution was not intended to limit them or that other constitutional officers, like presidents, senators and congressmen, are merely ancillary to the principal instrument of the Constitution, the self-anointed Supreme Court.
If this sounds radical, when it is in fact so natural and so tame, then it is time to sound radical and act rational: it is time to use this third way to tame the Supreme Court.
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