The following is a guest post by Dr. Robert Owens.
Why the Congress Must Rein in the Supreme Court
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life, Libertyand the pursuit of Happiness.” Please notice that this, the foundational sentence of the American way of life does not say “endowed by the Supreme Court.”
Ever since the Supreme Court took unto itself the power to void laws passed by the representatives of the people in Marbury V. Madison the black-robed Justices have acted, and Americans have accepted them as if they are the source and the summit of what is and what isn’t allowed in America. In most cases since the middle of the 20th century, the high court has sided with whatever the central government wanted to do in the way of extending its power and curtailing rights which any person who can read plainly sees protected in the document they are sworn to defend.
However, in Article Three of the Constitution, the one that outlines the judicial branch, after specifically enumerating which types of cases the Supreme Court shall try it says, “In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
We often hear of obscure clauses of the Constitution which have been stretched and strained to sweep more power and authority into the never satisfied maw of the Federal Leviathan such as:
- The “Necessary and Proper Clause” which is found in Article I, Section 8, Clause 18 states, “To make all Laws which shall be necessary and proper for carrying into Execution the [enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This is also known as the “Elastic Clause” because Congress and Presidents have stretched it to give them powers the Founders never would have dreamed possible outside a tyranny.
- The “Commerce Clause” found in Article I, Section 8, Clause 3 states, “to regulate Commerce with foRein Nations, and among several States, and with the Indian Tribes.” This is the go-to clause for the Progressive’s conquest of America. This is the clause that was used in the 1930s by FDR to implement most of the New Deal. It was used by LBJ in the 1960s to impose the Great Society. And it is being used by BHO in the 21st century to shackle us with the social democracy brand of socialism which has devastatedEurope and which has been repudiated by our former adversaries in the Cold War.
In the Supreme Court decision Wickard v. Filburn in 1942 it was handed down from on high that a wheat farmer growing wheat on his own property for his own use can be legally regulated under the commerce clause because not selling your wheat and using it yourself is actually competing with wheat that is sold and is therefore commerce. This is the same clause the Obama Administration originally used as a defense to say they can fine people for not buying insurance arguing that not buying insurance is commerce.
Yes, these two clauses have been stretched and interpreted beyond any semblance of rationality to restrict and restrain Americans in the enjoyment of the freedom and liberty which should be our birthright, yet the clause which clearly states that Congress has the power to rein in the Court has been ignored.
Forget all the posturing about abortion by all the so-called conservatives in Congress. Has there ever been a concerted, protracted or sustained effort to remove abortion from the jurisdiction of the Supreme Court? No there hasn’t. And yet tomorrow, or even today, Congress could pass a law stating that abortion is an exception to the court’s jurisdiction and with the signing of this law by the president Roe V. Wade would be null and void, and all state laws affecting abortion would once again be in effect. And this same procedure could be used for the representatives of the people to take back control of the law and the country from the Court.
The Congress is elected. The Supreme Court is appointed. Congress can be replaced. The Justices of the Supreme Court serve for life. They could be impeached and removed; however, none have ever been removed and the likelihood of that happening is remote. There are checks and balances in the process of passing laws. The Senate is a check on the House and the House on the Senate. The President is a check on Congress and Congress is a check on the President. There is a check designed to restrain the Supreme Court from becoming a black-robed committee of kings: Article 3, Section 2, Clause 2 giving Congress the power to create exceptions to the Court’s jurisdiction. However, tradition and the desire of professional politicians to demagogue about issues instead of solve them keeps the perpetually re-elected from reining in these want-a-be demigods.
Thursday June 28, 2012 will live in the memory of all patriotic Americans as a day of infamy along with Pearl Harbor, and 9-11. This is the day the Supreme Court ruled that if the Central government can’t force American citizens to do what they want them to do one way they can do it another.
When the Obama Administration and their co-conspirators, the Progressive Democratic Party in Congress, rammed Obamacare through Congress they argued that the fines imposed under the individual mandate upon anyone who didn’t purchase health insurance wasn’t a tax, but that it was penalty allowable under the Commerce Clause. According to the Constitution all tax bills must begin in the House. Obamacare began in the Senate; however, that was all right since the fines weren’t taxes they were penalties.
When the issue got to court and it became clear there wasn’t a majority ready to declare not buying insurance was commerce the Obama Administration argued there was no standing to litigate the individual mandate and the fine it imposed because it is a tax. Through the looking glass inside the beltway and behind the curtain it’s a penalty when that argument works and it’s a tax when that argument works.
Sophistry is defined as “Reasoning that appears sound but is misleading or fallacious. In Metaphysics, Aristotle defines sophistry as ‘wisdom in appearance only.’” When we look at that definition from now on it will be hard not to see the face of Chief Justice Roberts who today showed his true colors as the midwife of totalitarianism. While declaring unconstitutional the very arguments used to pass the law the majority declared the law constitutional based upon the very arguments its opponents used to try and defeat the bill. Up is down, right is wrong, and the government can do whatever it wants.
During the ratification debate when addressing the Supreme Court one of the leading Anti-Federalists wrote, “There is no power above them to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel independent of heaven itself.”
The balance between the central government and the once free citizens it is attempting to turn into dumbed down helpless dependents has been significantly changed. As predicted by the Anti-Federalists, the courts have been used over and over to expand the power of the central government to the detriment of the States and the citizens. Today we crossed a threshold; we passed a tipping point and are no longer at the edge of the abyss. We are careening down the cliff into the fearful embrace of totalitarianism. An over the top Supreme Court has given the green light to an out of control Progressive Administration, and as of today there are no checks and there is no balance.
Those of us who love liberty and are dedicated to limited government must contact our representatives and demand that the Supreme Court be brought under control. Something must be done to preserve liberty or the United States we have loved will become the one we have dreaded. An all-powerful central government will continue to grow and bend all things to its will. We must return to the literal definition of constitutional government or this living document will be the death of freedom and the graveyard of liberty.
Keep the faith. Keep the peace. We shall overcome.
Dr. Owens teaches History, Political Science, and Religion for Southside Virginia Community College. He is the Historian of the Future @ http://drrobertowens.com © 2012 Robert R. Owens email@example.com Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens