The Supreme Court has one primary job. It is the third leg of the system of checks and balances intended to keep our government in its place and prevent it from shedding its past to become an authoritarian, despotic state. The Court does this by evaluating the other branches’ actions against the ultimate legal framework upon which our society depends, the Constitution. The Court’s job is not to do what’s best for any constituency. It is not to do what will make the people temporally happy (this is why it is not an elected body). The Court’s job and sole reason for existence is to vet laws for their permissibility under the Constitution. When the Court comes to the point of partisan politics, supporting their parties’ actions to the end, we lose all the protections afforded us by the Constitution.
Today, the Court is expected to return its verdict on the Affordable Care Act (“Obamacare”), and specifically the individual mandate. Nowhere in the Constitution is Congress given authority to force an individual to enter into commerce with a private enterprise. When the verdict comes through, we will know whether we have an intact system of checks and balances, or a despotic committee of 600 people who can make the other 300 million of us dance like marionettes.
UPDATE: Well. SCOTUS ruled the mandate Constitutional, under Congress’s power to levy taxes. They did, on the other hand, explicitly say it is NOT a valid use of the Commerce Clause. Functionally, I see little difference (if Congress can impose a punitive tax on arbitrary personal situations, they can still effectively pull your strings all over the place), though this is a small victory on principles. Limiting the Commerce Clause’s applicability is never a bad thing.
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I keep hearing negatives as well as positives about this whole thing, and I can’t help but wonder what real changes it’s going to cause. I tend to get lost in all the arguing.
I might be biased, but this is some darn good writing and some sexy prose. KISSES.
You are an excellent writer. Had I written this, the general idea would have been the same, but every other word would have been “awesomesauce”.
The decision made no sense to me. It just made me feel like the government was telling me they were going to tax me twenty cents per breath I take.
I think we should toss something into the Boston Harbor
@Melissa banana peels? Pllleeasssee? it will be funny when the fishes slip on them.
@Wife can I guess which monkeys will be made to eat those bananas, so we can have peels?
If I may, I must respectfully disagree with the very premise articulated here. The primary job of the Supreme Court is to serve as the chief judicial office within these United States. Originally, the Court existed to settle disputes between the several States and to exercise what Jefferson called “concurrent review” with respect to individual cases. In other words, under the practice of concurrent review, the Court’s ruling are only binding to the parties in the case. The U.S. Supreme Court was never intended to strike down whole statutes and that authority is nowhere mentioned in the Constitution.
The practice of so-called “judicial review” (where they do strike down laws) wasn’t practiced until the infamous Marbury vs. Madison case where Chief Justice John Marshall invented the concept out of whole cloth and gave the Court powers it never before had. Judicial review basically turns the Supreme Court into a junior-varsity congress which legislates from the bench. If libertarians and conservatives alike ever expect to turn things around, then they must reject the practice of judicial review.
Libertarian intellectual Tom Woods has written and lectured extensively on the topic of nullification by the States. *That* is how you bring an end to Federal tyranny. We simply cannot rely upon the Feds to police themselves. The States created the Federal government and so it’s up to the States to be the check on Leviathan.
I love Tom Woods.
Indeed, I completely agree with nullification and your entire last paragraph. <– There's my intelligent comment for the day.
As far as the rest, I'm interested in Sam's response, as this historical detailed stuff is NOT my strong suit. He's researching right now though.. so I'll go into the kitchen and bake a pie.
@Josh
You make an excellent point. I’ve gone back now to read a bit on Article III, the Judiciary Act of 1789, and Marbury v. Madison, and I think I see what you mean. I do have a couple thoughts on the matter, though.
1) Marshall did not invent judicial review itself; the Act of 1789 directly grants the Supreme Court appellate jurisdiction over state courts’ decisions on the validity of federal statutes. That is not a precise analog for Marshall’s ruling, but it is very similar and predates him by 14 years. I do see parts of the Act are unconstitutional, which is disheartening given it was enacted in the very first session of Congress.
2) The Constitution grants the Court jurisdiction over “Controversies to which the United States shall be a Party” (Article III, Section 2). If I were to bring a lawsuit alleging that Congress violated the law (IE the Constitution) by enacting a statute, would the Supreme Court not have jurisdiction, since the United States would be a party?
3) Would the court be allowed a de facto ruling on constitutionality? As in, can the Court decide the hierarchy of a statute in question? If a court sees that a statute is superseded by the Constitution, can they decide to ignore it (and dictate that for any future suits featuring that statute)?
You’re correct that Marshall didn’t invent the concept of judicial review. However, what I meant was that he invented that out of whole cloth insofar as the SCOTUS was concerned. It was never seen in Court precedent until the aforementioned case. The main issue in that case wasn’t necessarily the Act of 1789, but the fact that the Court now declared its authority to strike down laws. By contrast, concurrent review states that the Court’s rulings are only binding to the parties in a case and no one else. For example, under concurrent review, Roe v. Wade would only have applied to Roe and Wade…not the laws of 50 states. I hope that makes sense.
For the record, I agree that the Judiciary Act is unconstitutional. Federal courts do not have the authority to strike down State statutes. Period. Even without judicial review, the Court is still judging the constitutionality of a law, again, insofar as it applies to the individual case in front of them. Precedent from that case is then set and all inferior courts look to that when deciding future cases of a similar nature. That’s how it was supposed to work.
I hope we’re not talking past each other. I think we’re closer to getting on the same page. Woods does a better job than me explaining the difference between judicial and concurrent review. Another good book I *highly* recommend is Government By Judiciary by Raoul Berger. It’s more so about the 14th Amendment, but the same principle still applies. So-called “incorporation doctrine” is equally insidious and represents an assault on our liberties.
@Josh,
I’ve added that book to my reading list, as it is clear I have more to learn! I may have more to say, but I will write a fresh entry in that case.