House of Eratosthenes

There seems to be a myth going around that declaring things unconstitutional is one of the Supreme Court’s primary functions. It’s a little known fact that we had a Supreme Court for the first fourteen years of this union before it did such a thing. A further 130+ something years slipped by before this was done with any frequency, and thus became the contentious issue we know it to be today.

Now sometime since 1937, it’s gotten a whole lot worse.

What we have today is something we should never dream of taking with us in a backward trip in a time machine, lest we desire to see the resulting horrified faces. Senators grill nominees to the Supreme Court about *which* thing they plan to declare unconstitutional and which things they plan not to. A certain thing is suggested to be unconstitutional, one of our political parties beams and the other one pouts. Reverse the equation, and reverse the results.

This is absurd.

That we live in a nation “of laws, not of men,” was intended to mean — and should mean — that when enforcement of one law violates a higher law, it doesn’t matter if certain people like the inferior law. It doesn’t matter if you’d piss rusty pennies to make it stick. The law must be upheld, and if it can be proven that two laws contradict, it is in everybody’s best interest that the superior law prevail.

The first time an Act of Congress was declared unconstitutional, that Act had been declared, just a few paragraphs prior, to be not only just but morally proper as well. Flouting that law, was a privileged bestowed by the Supreme Court onto itself, and in recognizing the authority to disregard the statute, Chief Justice John Marshall had to prove beyond any compelling or reasonable doubt that the Judicial Act of 1789 was irreconcilable with Article III of the Constitution. That the Federalists liked what he did, and Thomas Jefferson’s Democratic-Republicans did not, has to be considered as the very weakest of justifications for Marshall’s ruling. In 1803, the Republicans were far more popular than the Federalists. Marshall did something back then isn’t done much today: He used logic, not just rhetoric, to support his opinion.

If you read Marshall’s decision, you see he obsesses not with his own mindset, but with that of his opposition. The notion that the Act is unconstitutional, is treated as a conclusion of “last resort” so to speak. Marshall takes the notion that the Act should be binding and enforceable, and dismantles it column by column, brick by brick. Then, much like Yoda in a Star Wars movie, he pays some serious attention to where this kind of thinking must lead. At the end of this exercise — having granted his opposition the benefit of every doubt, every step along the way — he declares the entire supposition “too extravagant to be maintained”.

Now that such rulings are routine, this isn’t done anymore. It is far more common for such opinions to take the “Hooray For Our Side” approach, citing some “prevailing national consensus” of some, let’s say, twenty state legislatures that do it our way, and ten or less that do not.

I continue to be puzzled that anybody could think this is a good thing. I’m having a lot of trouble even grasping how anyone could pay attention to basic U.S. Civics 101, and think this role for our judiciary is proper. Like Yoda, I am worried. To a dark place, this kind of thinking will take us.

Our highest court keeps tallies of which state legislatures allow a certain thing, and which legislatures do not?

From where does the authority flow, for the Court to decide when to tally these numbers up, and when to ignore them? Such an exercise must be purely subjective by its very nature.

Since laws become unenforceable in all states when the Supreme Court declares them unconstitutional, this practice is an assault on our right to exist as individuals. Texas, for example, allows executions to proceed with only minimal authority conferred on the Governor to grant clemency. (The Texas Governor, contrary to popular belief, cannot unilaterally commute a death sentence.) Texas is unique among the other states in the way this works. The Supreme Court has been particularly abusive to the Eighth Amendment over the years, using its “cruel and unusual” clause as a blank check by which it feels authorized to divine this natonal consensus, virtually without limitation on any issue dealing with incarceration or execution, ad nauseum. Is it not just a matter of time before it detects a prevailing interstate consensus, that executions without a more standard petition process for clemency, run afoul of the fifth, sixth, eighth and fourteenth amendments?

The Constitution guarantees Texas has unlimited authority to decide such matters within its borders. But when the Supreme Court rules this way — as it often has — such a decision is binding, asserting a coercive force upon Texas affairs.

If and when that happens, from where would this authority come to force Texas to do something it doesn’t want to do? Well, that would be from the people who elected the legislature of Maryland. And the people who elected the legislature of the Commonwealth of Virginia. And Maine, and New Jersey, and Minnesota…places that are not Texas.

Such a practice is an assault upon the individual. A Supreme Court decision that says “most states disagree with Texas” and consequently prohibits Texas from doing something, is as hostile to the spirit of the individual, as a Homeowner’s Association telling a new arrival “all the families who live here go to the corner church — so shall we expect you at the eight o’clock services, or at 9:30?”

What might be right for most, may not be right for some. The America that I celebrate on July 4th, is a place where people remember that. Europe says to America “your opinion is mighty unpopular” and in response, real Americans simply smile and shrug — knowing that this is the only response that shows proper respect to the individual and the Spirit of 1776. I hope that as the Supreme Court evolves from the point where it is now, it becomes a respected institution that is more at home in this kind of republic, than it has been over the last fifty years.

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Power BenchMonday, July 4th, 2005

Power Bench
Monday, July 4th, 2005