It's time to reclaim our republic from the Supreme Court

Posted: Jan 19, 2006 12:05 AM

There are those in this country who truly believe that the Supreme Court is the repository of all that is good and just. There are those who believe that the Supreme Court should be the ultimate and exclusive interpreter of the Constitution because members of the Court are wiser, fairer, more consistent and more far-seeing than members of the general public.

 And then there are those who actually look at the jurisprudence of the Court. The Court has made an incoherent mess of the Constitution. According to the Court, states may restrict cross burning (Virginia vs. Black, 2003) but not flag burning (Texas vs. Johnson, 1989). According to the Court, the federal government may restrict campaign contributions and pre-election political ads (McConnell vs. FEC, 2003) but not "virtual" child pornography (Ashcroft vs. The Free Speech Coalition, 2002). According to the Court, states may not discriminate on the basis of race (Brown vs. Board of Education I, 1954) but may discriminate on the basis of race (Grutter vs. Bollinger, 2003), but may not discriminate on the basis of race (Gratz vs. Bollinger, 2003). According to the Court, Texas may display the Ten Commandments on the grounds of the state capitol (Van Orden vs. Perry, 2005) but Kentucky may not display the Commandments in state courthouses (McCreary County, Kentucky vs. ACLU of Kentucky, 2005).

 Then there is the value of "stare decisis" (precedent) that our senators have prattled endlessly about during Judge Samuel Alito's confirmation hearings. It seems that the value of precedent rises above all else for the senators. Sen. Arlen Specter (R-Penn.), for example, informed Judge Alito in a Dec. 13, 2005, letter that "the concept of stare decisis is crucial to our legal system." According to justices Kennedy, O'Connor and Stevens, the Court's legitimacy rests on its adherence to past principle: "To overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the Court's legitimacy beyond any serious question."

 Yet, the Court has persistently overruled itself (in fact if not in word) whenever it feels the need. The Court is, in the words of Justice Scalia, "the dictatorship of a shifting Supreme Court majority." In 1986, states could pass laws prosecuting sodomy (Bowers vs. Hardwick); by 2003, the Constitution somehow created a right to sodomy (Lawrence vs. Texas). In 1973, the Constitution magically granted an unconditional right to abortion in the first trimester of pregnancy (Roe vs. Wade); in 1992, the Constitution somehow allowed states to regulate abortion as long as that regulation did not create an "undue burden" for pregnant women seeking abortions (Planned Parenthood vs. Casey). In 2005, a federal statute (Controlled Substances Act) could override state legislation permitting medical use of marijuana that did not enter interstate commerce (Gonzalez vs. Raich); this week, a federal statute (Controlled Substances Act) could not override state legislation allowing the use of interstate "medicine" in assisted suicide (Gonzalez vs. Oregon).

 All of this intricate inanity is in the name of one document. And all of this is despite the fact that the judiciary was never given the authority to adjudicate these issues. Judicial supremacy -- the Court as exclusive arbiter of the Constitution -- was never intended by the framers. The checks and balances of the Constitution do not involve the judiciary. They are checks applied by elected branches to one another. To make the judiciary the final adjudicator of governmental boundaries would have been either ineffective or tyrannical. Judicial supremacy, said James Madison, "makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper." Judicial supremacy, a power usurped by the Courts, has removed the power of the people to decide on issues of crucial importance.

 It has made a mockery of a document written and ratified by "we, the people." It has made a mockery of a system of government designed to be operated by "we, the people." If political policy for 300 million is to be made by a democracy of nine and a majority of five, we no longer live in a republic but an oligarchy. "When a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security," wrote Thomas Jefferson in the Declaration of Independence. The Constitution is ours, not the Court's. This republic is ours, not the Court's. It is our duty to reclaim them.