Title: Pound Sand, Your Honor! More Americans Want States to Ignore Federal Courts Source:
[None] URL Source:http://www.thenewamerican.com/usnew ... tates-to-ignore-federal-courts Published:Jul 4, 2015 Author:Selwyn Duke Post Date:2015-07-04 12:25:10 by HAPPY2BME-4UM Keywords:supreme court, constitution, homosexual, first amendment Views:385 Comments:46
While dissenting from the recent Supreme Court decision rubber-stamping same-sex “marriage,” Justice Antonin Scalia warned his colleagues that with “each decision ... unabashedly based not on law” the Court moves “one step closer to being reminded of [its] impotence.” And a new poll shows that another such step has in fact been taken, with more Americans supporting the idea that states should have the right to ignore federal court rulings. Writes Rasmussen Reports, “A new Rasmussen Reports national telephone survey finds that 33% of Likely U.S. Voters now believe that states should have the right to ignore federal court rulings if their elected officials [dis]agree with them. That’s up nine points from 24% when we first asked this question in February.Just over half (52%) disagree, down from 58% in the earlier survey. Fifteen percent (15%) are undecided.”
This shift is clearly influenced not just by Obergefell v. Hodges (the marriage ruling), but also a late June ObamaCare decision so contrary to the “Affordable Care Act’s” text that Justice Scalia lamented to the Court, “Words no longer have meaning.” Not surprisingly, there was an ideological divide among poll respondents. As Rasmussen also tells us, “Fifty percent (50%) of GOP voters now believe states should have the right to ignore federal court rulings, compared to just 22% of Democrats and 30% of voters not affiliated with either major party. Interestingly, this represents a noticeable rise in support among all three groups. Fifty percent (50%) of conservative voters share this view, but just 27% of moderates and 15% of liberals agree.”
Also not surprisingly, this pattern basically reverses itself when voters are asked if Barack Obama should be able to ignore the courts when he wants to. As Rasmussenwrote in February after surveying voters on that question, “43% of Democrats believe the president should have the right to ignore the courts. Only 35% of voters in President Obama’s party disagree, compared to 81% of Republicans and 67% of voters not affiliated with either major party.”
As to the recent poll, Rasmussen writes that Republicans and conservatives being most likely to support state defiance of federal courts is perhaps “disturbing” because those groups “traditionally have been the most supportive of the Constitution and separation of powers.” But the reality is that these responses — conservatives advocating defiance of liberal courts, liberals advocating defiance for a liberal man, and Rasmussen indicating that the judiciary should have ultimate-arbiter power — reflect emotional reactions more than constitutional analysis.
First note that this gratuitous judicial-review power — where courts’ rulings on law are considered to constrain all three branches of government — is not found in the Constitution. Rather, it was unilaterallydeclared by the Court itself in the 1803 Marbury v. Madison decision. In other words, Rasmussen’s supposition about the courts’ role does not align with constitutionalism.
But critics would say that this is putting it lightly. Justice Scalia wrote in his Obergefell dissent that the Court has actually become “a threat to American democracy.” And this just reflects what founder Thomas Jefferson warned when he said that if the Court was not reminded of its impotence, if it comes to be viewed as having ultimate-arbiter (judicial review) power, our Constitution will have become “a suicide pact.” As I wrote just last week:
Jefferson explained the problem with judicial review, writing, “For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this [judicial review] opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation.... The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.”
Jefferson also pointed out, correctly, that “Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.” …Judicial review is “a very dangerous doctrine indeed,” Jefferson warned in 1820, “and one which would place us under the despotism of an oligarchy.”
Jefferson also wrote that nullification — states’ ignoring of federal dictates — is the “rightful remedy” for all central-government usurpation of states’ powers. Of course, this includes plainly unconstitutional rulings by oligarchic federal courts.
Thus, the 50 percent of GOP voters polled this week are right — although perhaps without realizing that their position is constitutionally sound. States have recourse to the “rightful remedy” of nullification because the Constitution reserves most powers to the states, and the states are not bound to follow unconstitutional federal edicts. In fact, in order to adhere to the Constitution, state are duty bound not to enforce such edicts, but to declare them null and void at the state border.
Of course, this balance of power ensures a tug of war and some gridlock in government, but that’s how the state is kept small and freedoms big. If we want issues settled cleanly and quickly with the stroke of a pen, we can appoint a dictator.
Or an oligarchy — sort of like the Supreme Court has become.
If the Court is not frequently reminded of its impotence, the people will ever be reminded of theirs.
note that this gratuitous judicial-review power — where courts’ rulings on law are considered to constrain all three branches of government — is not found in the Constitution. Rather, it was unilaterally declared by the Court itself in the 1803 Marbury v. Madison decision. In other words, [Rasmussen Report]’s supposition about the courts’ role does not align with constitutionalism.
tenthamendmentcenter.com articles on Marbury v. Madison:
Virtually nobody, particularly in the legal community, question the idea that the Court serves as the final decision maker when it comes to the Constitution. This view is nonsense.
[Supreme Court Chief Justice] John Marshall’s 1803 opinion in Marbury v. Madison serves as the cornerstone of this doctrine.
a little known fact: Marshall had a major conflict of interest and should have recused himself from the case.
The conflict of interest was so great he could not possibly claim impartiality, a quality essential for those who judge.
Marshall essentially created a legal construction out of thin air.
But the central question remains: did Marshall intend the court to stand as the sole and final authority of all things constitutional?
A majority of five Justices lacks both the legitimacy and the competence to claim an exclusive voice. Justice Byron White put the matter crisply in 1970 when he said that “this Court is not alone in being obliged to construe the Constitution in the course of its work; nor does it even approach having a monopoly on the wisdom and insight appropriate to the task.”
The common understanding of the famous Marbury v. Madison case is that it established the authority of the Supreme Court to determine what the Constitution says. From there, it’s held that the Court gets to determine the limitations placed on the federal government as well as the states. In short, the rest of the federal government, and the states, are bound by what the Supreme Court decides.
But is that the truth? A paper from Northwestern University School of Law Constitutional Theory Colloquium Series seeks to clear up the myths associated with the Marbury decision. In the first sentence of his 2004 paper, “The Irrepressible Myth of Marbury,” Michael Stokes Paulsen sets the mood for the rest: Nearly all of American constitutional law today rests on a myth.
“A long, long time ago — 1803, if the storyteller is trying to be precise — in the famous case of Marbury v. Madison the Supreme Court of the United States created the doctrine of ‘judicial review.’ Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional.”
This myth, he continues, allows the Supreme Court to dictate what the Constitution means via “opinions,” i.e. ex cathedra pronouncements.
nowhere in the Constitution is the court given supreme authority over the other two branches. The Constitution itself, instead, was declared to be supreme, not the will of individuals holding federal office tasked with enforcing it.
what Marshall and other justices were arguing in Marbury v. Madison wasn’t the idea of judicial supremacy, that the Supreme Court was the highest authority in the government. Their argument was that the judicial branch of the federal government derived its authority to interpret and apply the provisions within the Constitution from the Constitution itself. It did not derive its powers from the other two branches, but from the same document from which they received theirs.
Marshall states that the Supremacy Clause “confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument” (emphasis added).
“The logic of Marbury implies not, as it is so widely assumed today, judicial supremacy, but constitutional supremacy — the supremacy of the document itself over misapplications of its dictates by any and all subordinate agencies created by it,” Correctly read, Marbury stands for constitutional supremacy rather than judicial supremacy,” Paulsen states. “And constitutional supremacy implies strict textualism as a controlling method of constitutional interpretation, not free-wheeling judicial discretion” (emphasis added).
While Paulsen’s critique of the Marbury Myth is insightful and refreshing, it also indirectly demonstrates a fatal flaw in the federalist system without the power of the states to check unconstitutional authority via nullification: What if the Supreme Court, or any branch of the federal government, go beyond their constitutional authority and simply issue rulings based on their own beliefs and consider them binding on the whole nation? What if all three do so simultaneously or fail to check the others?
Fortunately, Jefferson and Madison foresaw this problem arising, as well.
they crafted the Kentucky and Virginia Resolutions. In those resolutions, they declared that the states, which had created the federal government, were “duty-bound” to resist unconstitutional acts no matter which branch they originated from. As Jefferson stated in the Kentucky Resolution:
the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers. (emphasis added)
If the judiciary failed to defend the Constitution, Jefferson wrote, nullification was the “rightful remedy,” and the Myth of Marbury, which Paulsen’s paper attacks, is a perfect example of why.