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Dead Constitution See other Dead Constitution Articles Title: Supreme Court's Deference to Congress Equals Disrespect to the Constitution Fellow Constitutionalists, Article VI of the Constitution declares that “This Constitution… shall be the supreme law of the land.” Yet when the Supreme Court reviews the Constitutionality of laws passed by Congress, the Court gives great deference to Congress. This has always seemed backward to me. Shouldn’t the Court be giving its greatest deference to the clear meaning of the Constitution? I’m not suggesting that the Court shouldn’t respect Congress. Respect between the branches of government is critically important to our Republic. However, the role of the Court is to be a check on the other two branches of government. It can’t fulfill that role AND ALSO place its respect for Congress above its respect for the Constitution. Yet this is exactly what the Court has done. This is why we’ve lost our Constitutional rights. Last week I heard Supreme Court Justice Scalia explain WHY the Court is so deferential to Congress. His explanation made me furious, yet gave me hope. During the October 5th hearing of the Senate Judiciary Committee, Justice Antonin Scalia explained that the Court gives deference to acts of Congress because they presume that Congress respects the limitations placed upon it by the Constitution. Scalia explained to Utah Senator Mike Lee that members of Congress take an oath to uphold the Constitution, and therefore the Court begins any analysis with the presumption that Congress did not intend to violate the Constitution. You can hear Scalia’s testimony HERE (at approx. minute 125). Scalia’s explanation is infuriating because we know that members of Congress actively ignore the Constitution. When they do pay attention to the Constitution they’re usually trying to figure out how to eliminate its limitations on their power. I’m sure you’re all aware of Nancy Pelosi’s response to a reporter when asked about the Constitutionality of Obamacare: She laughed and asked if he was kidding, using a very derisive tone. Her lack of respect was directed at the question more than the reporter. It reflected her total lack of respect for the Constitution. Pelosi was shocked that a reporter would even ask about THE SUPREME LAW OF THE LAND, which was designed to limit HER power! Our OCA lawsuit formally accused both Pelosi and Reid of violating their oaths of office by passing Obamacare. Both formally refused to deny the accusation and instead claimed immunity. When members of Congress have no legal obligation to follow their oath and suffer no consequences for violating it, the Congressional oath of office has lost any function in this world. Yet Justice Scalia cited the Congressional oath of office to explain why the Court gives great deference to Congress. I’m grateful to the Justice for attempting to remind Congress of its duty, but I hope he realizes the irony of his own comments. The good news is that Scalia’s comments give us the key to correcting the Court’s grievous mistake. Because the Court’s deference to Congress is based on a traditional presumption that Congress intends to follow the Constitution, evidence that proves that presumption incorrect should eliminate the Court’s deference. A legal presumption is a fact that is simply a starting point. If that fact is not proven wrong, or more commonly if that fact is not addressed at all, the fact stands. However, presumptions can be negated by evidence that the presumed fact is wrong. Because Scalia testified that the Court’s deference to Congress is based on a presumption that Congress intends to follow the Constitution, we can now address that presumption by proving the underlying fact to be false. The Court needs to understand that the interests of Congress are in opposition to the interests of the Constitution. Deference to Congress disrespects the Constitution, and leaves the people with a grievous disadvantage in defending their fundamental rights against government’s constant intrusions. Liberty Legal Foundation’s amicus brief to the Supreme Court will include our arguments that the Court should stop giving deference to Congress. Part of our argument to overturn Wickard v. Filburn will include quoted statements from members of Congress, showing Congress's disrespect for the Constitution. It may be impossible to turn the Court away from its horrendous tradition of respecting Congress to the detriment of the Supreme Law of the Land and its People. But we must try. Now we have an insight into the mind of a leading conservative Justice. Now we know how he justifies the Court’s attitude in his own mind. We will use that information to speak to him and the other Justices. Hopefully we can help them see that their presumptions have NEVER been correct, and have been very destructive to the Constitution. Imagine if several Justices suddenly realized that the Court’s traditional attitude is destroying America, and they reversed that attitude. Imagine if they started making Congress PROVE that it was following the Constitution, rather than always assuming that Congress intended well. Liberty Legal Foundation needs your help to bring our arguments to the Supreme Court. We need your financial support. Please give what you can to help us Resurrect our Constitutional Republic. In Liberty, Van Irion Co-Founder, Lead Counsel LIBERTY LEGAL FOUNDATION
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