If we were to listen to some of the political forces in our country, many would believe this election is about the “balance of the Supreme Court.” The political forces at play have accurately stated the next president will most likely appoint anywhere between two to four new justices. There is no disputing that this is a real possibility, but our response should be “so what!”
Contrary to what many people believe, the Supreme Court cannot write law, nor does the Supreme Court have the “final word.” If the Supreme Court cannot write laws, nor is it the final word of factual, constitutional conflicts, how did we get to the point where many believe a Supreme Court decision is “the law of the land?” The answer is simple; we are a nation ignorant of history, at least when it comes to the constitutional purpose of the U.S. Supreme Court.
Our Founding Fathers did not deliver onto this continent a system that would place that much power into the hands of nine, unelected, life-tenured individuals. That would have been absurd. The finality of this truth is embodied in the factual understandings of the U.S. Constitution. Our government is in a constant state of controlled conflict. It isn’t pretty, and it isn’t perfect, but when we stay closer to the original intent of the Constitution, it works. It is laughable when I hear politicians, pundits and puppets use the Inner Council concept that a Supreme Court decision is the “law of the land.” We are a country of 320 million sovereign individuals, living in 50 independent states, each with their own constitution. To believe all of the power rests with the U.S. Supreme Court is reckless.
I am not suggesting a Supreme Court discussion isn’t important. However, it would be foolish to imply a Supreme Court decision is the final say on any topic. If that were true, then based on the Dred Scott decision, slavery would still be a real possibility. The United States of America is a constitutional-republic, in essence a controlled, adversarial system. Our Constitution clearly states it is our duty to continually push back on each and every attempt to refine the six principles of our government (separation of powers, federalism, sovereignty, checks and balances, limited government and judicial review).
It is also important to understand that the Supreme Court was never conceived to be an equal part of our three-branch, federal government structure. It is one branch, but as an element that was originally confined to a very narrow scope. However, the Supreme Court started to seize more control under Justice John Marshall, the fourth chief justice of the U.S. Supreme Court, when he began the policy of judicial review with Marbury v. Madison.
Marshall believed his approach to “judicial review” was well-intended, which eventually gave the Supreme Court the power to declare laws of local, state or national governments invalid if they violated the Constitution, as determined by the Supreme Court. The adverse effect to this approach would lead to a de facto process that eventually evolved into a perverse, anti-constitutional concept we refer to as the “law of the land” precedence. There are numerous inherent flaws in Marshall’s thinking, one being that the Supreme Court under his leadership would lead to the process of creating laws by judicial fiat. However, there is one other glaring misinterpretation; that the Supreme Court is the only protector of the Constitution.
Every citizen of the United States is bound to defend the U.S. Constitution, either by oath or by inheritance. Members of Congress, the president and members of the U.S. military all take a similar oath of office. In fact, the basic construct of almost every oath of office in our country is rooted in the simple declaration that the person taking the oath swears, to the best of their ability “… to preserve, protect and defend the Constitution of the United States.” To believe the Supreme Court is the absolute guardian of the Constitution is abandoning the very principles instilled in the Declaration of Independence, the U.S. Constitution and within the people of the United States.
The rightful preamble of the U.S. Constitution, the Declaration of Independence, does not state we are “endowed by the Supreme Court, or the president, or Congress” with “certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” It does say “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
Maybe the balance of the Supreme Court is in jeopardy. But to surrender to the belief that a Supreme Court decision is the “law of the land” places this country in great peril. We are the governed and the rightful protectors of the U.S. Constitution. To walk away from that responsibility is to admit our constitutional-republic is doomed to failure.
