Here is my column that ran in the Washington County Daily News yesterday. And now that I’ve ruminated and griped about how much power we have ceded to an unelected branch of government, the realities of today dictate that we must get a good, constructionist jurist in place before the election.
The Supreme Court of the Unites States completed its session with a flurry of mostly good rulings and Justice Anthony Kennedy added an exclamation point by announcing his retirement. With the prospect of President Trump’s second appointment to the court looming, every politician and special interest in America has launched into battle as if the world depended on the outcome.
I can’t help but feel a deep sense of sadness for the state of our republic. It was never supposed to be like this.
Somehow we have drifted from Judge Marshall’s opinion in Marbury v. Madison, “that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument” to a point where the Supreme Court of the United States is routinely called the “final arbiter of the Constitution” without so much as a second thought. But interpretation and enforcement of the Constitution is not the sole responsibility of the Supreme Court. Even Marshall acknowledged this fact when he includes “other departments” in the quote above. Those “other departments” are the other two branches of government.
The Constitution is the supreme law of the land. It supersedes anything generated by any part of the government. This is what Marshall meant when he wrote: “The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.”
In other words, a written constitution is meaningless if it is able to be quashed by a simple act of the legislature or by an arbitrary regulation from the executive. It is the responsibility of every branch of the government to maintain the integrity of the Constitution.
It is worth noting that Marshall closed his opinion by pointing out that the oath taken by judges obligates the judges to place the Constitution above other considerations. The oath taken by a judge reads, in part: “I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic.”
This portion of a federal judge’s oath is also included in the oath taken by a soldier, a senator, a congressman and, most notably, a new United States citizen. Just as a new citizen must verbally vow to support and defend the Constitution, each natural- born American citizen implicitly adheres to the same oath as a duty of citizenship. It is every citizen’s duty to support and defend the Constitution.
It must be remembered that the Constitution is a document that restricts what the federal government can do. The federal government is specifically denied the power to do anything outside of the specific powers delegated to it in the Constitution.
Since the Constitution is a shackle for government, why would we make an institution of that government “the final arbiter” of its meaning and extent? That is like letting a child be the final arbiter on how much Halloween candy is permissible to eat in one sitting. Just as that child would end up bloated and sick, so too would a government left to decide its own boundaries.
The current apoplectic fury over the appointment of a single judge of a ninejudge panel of a single branch of our three-branch government is symptomatic of the degeneration of our adherence to our Constitution. As a people, we Americans have ceded the responsibility of binding our government to the tenets of our Constitution to an unelected branch of that same government. We have permitted the pendulum of power to be permanently stuck on the side of the government.
The result has been predictable. Our federal government routinely acts well outside its constitutional boundaries with not only the consent, but the adulation of much of the citizenry.
As the federal government’s overseers, it is the American people’s historic responsibility to fasten tight the constitutional fetters with which we bind our government and closely guard the key. Yet over the past two centuries, we have fallen asleep on our watch and left the keys dangling within easy reach of our charge.
I do not fault the political factions in our nation for waging a rhetorically bloody crusade for control of the Supreme Court. The Supreme Court has become the nuclear weapon of the modern American political landscape, control of which dictates supremacy. At the same time, every citizen should take to heart the words written in our Declaration of Independence: “Governments are instituted among men, deriving their just powers from the consent of the governed.” The Supreme Court only has as much power as Americans consent to give it.