In the 1927 case Buck v. Bell, 274, the United States Supreme Court upheld a statute instituting compulsory sterilization of the unfit, including the mentally retarded, “for the protection and health of the state.” This decision flew blatantly in the face of the text of the Constitution, just as more recent cases such as Roe v. Wade (abortion) and Lawrence v. Texas (sodomy) have in recent years. If you’re a civil official responsible for performing the task of sterilizing Americans under a ruling like this, which would you feel obligated to obey—the court or the Constitution?1
Does this question not resemble the one asked of the Reformers? “Will you obey the Pope (or King) rather than the Bible?” They chose the Bible.
We continue addressing this question with the second point of the series. If you missed the first point in this series, you can read it here.
II. The Supreme Law of Our Land
A. U.S. civil officials are sworn to uphold the written constitutional text.
When a government official is ordered by a judge to fulfill an action that the government official believes is contrary to the U.S. Constitution, which must the official obey?
We could break down this question and apply it to different officials. If a Congressman were implicitly ordered by a judge to provide funding for an unconstitutional federal service, would the Congressman be obligated to vote for such funding in the federal budget? If a President were ordered by a judge to assist in the enforcement of an unconstitutional federal activity, would the President be obligated to send such assistance? If a state official were ordered to remove an item from state government property contrary to the Constitution, would the state official be obligated to remove the item?
Article VI of the Constitution states in no uncertain terms that “[t]his Constitution . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” U.S. Const. art. VI. All judicial officers take their oath of office to support the Constitution itself (and no person, office, or governmental body — “any Thing in the . . . Laws of any State to the contrary [such as Canons of Judicial Ethics] notwithstanding”) Id.
Article II of the Constitution requires the President to take an oath to “preserve, protect and defend the Constitution of the United States.” U.S. Const. art I, §1. Article VI requires that “[t]he Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution.” U.S. Const. art VI, para. 3.
This Constitution and its oath thereto are still relevant today and should control, above all other human competing legal powers and influences, the decisions of the officials of the United States. God commands “every soul [including civil officials to] be subject to the higher powers.” ( Romans 13:1.) In our nation, the highest civil power belongs to the United States Constitution.
[get_product id=”106″ align=”right” size=”small”]Chief Justice John Marshall, writing for the Supreme Court, observed in Marbury v. Madison that the very purpose of a “written” constitution is to ensure that the government officials, including judges, do not depart from the document’s fundamental principles. See Marbury, 5 U.S. at 176–80 (1803). “[I]t is apparent that the framers of the constitution contemplated that instrument, as a rule of government of courts . . . . Why otherwise does it direct the judges to take an oath to support it?” Id. at 179-80.
In an earlier writing before the Constitution’s adoption, John Marshall explained how the Judiciary would serve to keep the Federal Government accountable to the Constitution. “Can [the United States] go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the Judges as an infringement of the Constitution which they are to guard: — They would declare it void.” John Marshall, The Fairness and Jurisdiction of the Federal Courts, 2 The Debate on the Constitution (The Library of America, 1993).
B. The Primary Test for Interpreting the Constitution Is the Text of the Constitution Itself.
James Madison, the “father of the Constitution” and disciple of John Witherspoon wrote, “As a guide in expounding and applying the provisions of the Constitution . . . the legitimate meanings of the Instrument must be derived from the text itself.” James Madison, Letter to Thomas Ritchie, September 15, 1821, III Letters and Other Writings of James Madison 228 (Phillip R. Fendall ed. 1865). The U.S. Supreme Court once held to the idea that “[i]n expounding the Constitution . . . , every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added.” Holmes v. Jennison, 39 U.S. (14 Peters) 540, 570-71 (1840).
Chief Justice Marshall asked in Marbury, “Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government?” 5 U.S. at 180.
A dissenter in the infamous Dred Scott case rebuked the errant majority for rejecting the fundamental principles of constitutional interpretation in their effort to reject the fundamental worth of a person.
And when strict interpretation of the Constitution, according to fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court.
Dred Scott v. Sandford, 60 U.S. 393, 620-621 (1856) (Curtis, J., dissenting).
The “strict interpretation of the Constitution” has been abandoned too often, and “fixed rules” have not been followed in many court decisions. Judges have the responsibility to decide cases according to the plain, and still unsullied, text of the U.S. Constitution. See Marbury, 4 U.S. at 180.
C. A Court Opinion or Order Does Not Share Equal Authority with the Constitution.
“An unconstitutional act is not a law; it confers no rights; it imposes no duties . . . ; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County, 118 U.S. 425, 442 (1886). Accord, Huntington v. Worthen, 120 U.S. 97, 101-02 (1887); Ex parte Siebold, 100 U.S. 371, 376 (1880); Fay v. Noia, 372 U.S. 391, 408 (1963). If this is true for a statute, how much more must it be so for an unconstitutional judicial decision?
In the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are; and are not of themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect.
Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842).
In the case Bowers v. Hardwick, the U.S. Supreme Court wrote that it “is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. . . . Otherwise, the Judiciary necessarily takes to itself further to govern the country without express constitutional authority.” Bowers v. Hardwick, 106 S. Ct. 2841, 2846 (1986).
In The Federalist Papers, Alexander Hamilton wrote, “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” The Federalist No. 78 (Clinton Rossiter ed., 1961). To Hamilton, it seemed that if the judiciary were to impose its own will on the law, it would effectively replace the legislature.
[T]he general liberty of the people can never be endangered by that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.
President Thomas Jefferson wrote in a letter to Abigail Adams,
The judges, believing the [Alien-Sedition] law constitutional, had a right to pass a sentence of fine and imprisonment, . . . . But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it, because that power has been confided to him by the Constitution. That instrument meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what are not, not only for themselves in their own sphere of action, but for the legislative and Executive also in their spheres, would make the Judiciary a despotic branch.
8 The Writings of Thomas Jefferson 310 (Paul L. Ford ed., 1897).
No constitutional decision of the Supreme Court is “supreme” over anyone (except perhaps the actual litigants in the case), because “constitutional questions may not be considered as finally settled, until settled rightly.” Pollock v. Farmer’s Loan & Trust Co., 158 U.S. 601, 663 (1895)(Harlan, J., dissenting). The touchstone of constitutional jurisprudence is truth, not power.
Moreover, nowhere does the Constitution mention decisions of the Supreme Court or of any other court as any part whatsoever of this “supreme Law.” Expressio unius exclusion alterius.2
The Constitution always remains supreme over any mere judicial decision purporting to construe it.
D. Equating “Judicial Review” with “Judicial Supremacy” Undermines Our Entire Judicial System.
When the Judiciary’s power to review the Constitution becomes construed to establish “judicial supremacy” in interpreting the Constitution, a controlling text disappears, replaced by judicial commentary. The Constitution serves as a platform for judicial paraphraseology, deconstruction, psychologizing of the Founders, and other superficial tricks.
Without an objective, over-riding textual standard, judicial reasoning becomes elastic and sophistical. For example, the Court decided to enforce the doctrine of stare decisis in Parenthood v. Casey,3 but decided to ignore the doctrine of stare decisis in the case Lawrence v. Texas.4
As the Judiciary replaces the standard of the Constitution, judicial review becomes nonscientific. The constitutional correctness of the Court’s decision in a case cannot be verified or falsified by any means other than a subsequent act of judicial interpretation. In other words, no body may make an independent inquiry of the Judiciary itself. Without this ability, public confidence in the judicial system breaks down.
Since the Supreme Court began replacing the text of the First Amendment to the Constitution with conflicting judicially-fabricated tests, lower courts have remarked how consistently confusing Establishment Clause cases have become. The Third Circuit Court of Appeals has observed, “[t]he uncertain contours of these Establishment Clause restrictions virtually guarantee that on a yearly basis, municipalities, religious groups, and citizens will find themselves embroiled in legal and political disputes over the content of municipal displays.” ACLU of New Jersey v. Schundler, 104 F.3d 1435, 1437 (3rd Cir. 1997). The First Circuit concurred, calling this area of law a “vast, perplexing desert.” Helms v. Picard, 151 F.3d 347, 350 (5th Cir. 1998), rev’d sub nom; Mitchell v. Helms, 530 U.S. 703 (2000). The Fourth Circuit has labeled it “the often dreaded and certainly murky area of Establishment Clause jurisprudence.” Koenick v. Felton, 190 F.3d 259, 263 (4th Cir. 1999). The Tenth Circuit opined that there is “perceived to be a morass of inconsistent Establishment Clause decisions.” Bauchman for Bauchman v. West High School, 132 F.3d 542, 561 (10th Cir. 1997).
Too often, the Court has rejected a jurisprudence that enjoys an “evenhanded, predictable, and consistent development of legal principles, [that would] foster reliance on judicial decisions.” Payne v. Tennessee, 501 U.S. 808, 827 (1991); see, e.g., Parenthood v. Casey, 505 U.S. 833, 867-68 (1992).
The Court’s modern “constitutional truth” is situational, relative, and personal. Majorities of sitting judges with their clerks and other legal intelligentsia determine the “truth” of the Constitution for the time being and the specific purposes at hand.
Without accountability to the Constitution, the judicial elitists assert power over everyone else, but recognize no obligation to listen, let alone answer, to anyone else. Having complete autonomy, the Judiciary separates itself not only from the text and time-honored construction of the Constitution, but from the realities of theology, politics, economics, morality, and culture that construction were meant to serve.
In the third and final part of this series, we will address “How Civil Officials May Hold Each Other Accountable to the Constitution.”
- See http://biotech.law.lsu.edu/cases/psyc/buck-v-bell.htm/. [↩]
- A long-standing principle of statutory interpretation meaning “the express mention of one thing excludes all others.” As the Judiciary has written: “”[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, “[w]hen the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.'” Id. [↩]
- 505 U.S. 833 (1992). [↩]
- 539 U.S. 558 (2003). [↩]