Undoing Unconstitutional Laws and Supreme Court Decisions _ Updated

What if the American people (electorate), upon ratifying our new Constitution, had elected their first President, Congressmen and, Senators not on their political views so much, but their knowledge of the Constitution and the intent of those who produced the document? And if this practice had been continued to the present day, this would be a far different country today, wouldn’t it? Imagine if the debates in both houses of the Congress were first over whether or not the law met the test of the original intent of the Constitution and only if it did would the debate move to whether or not the law was actually needed.

What I  described might have been nice but, once the Founders were no longer available to consult on their original intent, our elected officials were left to interpret as best they could what the original intent was.  And, if the Constitution is open to interpretation, who has the final word? The Constitution belongs to the people and not to the government; so, in the end the people are the final arbiters and they exercise their decision with their votes. As a practical matter, the people’s representatives in government are charged through their oath to preserve, protect and defend the Constitution and therefore, they must interpret the constitutionality of every law and every Supreme Court decision.

Clearly throughout our history, our elected officials have not adhered to their oaths nor have the people been the least bit diligent in electing their representatives based on their knowledge of the Constitution and its original intent and in using their votes to remove those who have not lived-up to their oaths.

What prompted me to write this post was an article in National Review Online written by a student a Harvard Law School, Joel Alicea.  The title of Joel’s article is Questioning the Supreme Court’s Supremacy and what caught my eye was this:

The most dramatic challenge to the Supreme Court’s authority as the ultimate constitutional interpreter has come from former speaker of the House Newt Gingrich, who gave a speech at the Value Voters Summit earlier this month asserting that the constitutional judgments of the president and Congress are entitled to as much respect as those of the Court. Mr. Gingrich promised that, as president, he would challenge the Court’s role as the final arbiter of constitutional meaning — he would even ignore a Court decision if he strongly believed that the Court’s judgment on an important issue was contrary to the true meaning of the Constitution.

If you read the article, you will find that a number of intellectuals and pundits do in fact support the idea that the Supreme Court is the final arbiter of the Constitution. To me the idea is absurd on its face. If the Supreme Court had the final word we would not be a constitutional republic but a constitutional oligarchy. The members of the Supreme Court are not elected by the people. The Supreme Court is not an equal branch of our federal government.The most powerful branch of government is the two houses of Congress. The House controls the purse strings and together with the Senate they can impeach a President or a  federal judge.

Getting back on point. Since our founding, our elected presidents and congressmen and senators and our appointed Supreme Court justices have in general not lived-up to their oaths to preserve, protect and, defend our constitution. And, we the people have shirked our responsiblity to elect those that would honor the oath they take.

Well, we can’t go back in time and have a do-over, unfortunately. But, if enough of the electorate want to begin a do-over in the next election cycles, we could bring about tremendous change in this country solely by returning to the Constitution’s original intent.

What if we elected in 2012 a President that was well versed in the Constitution and its original intent and who took his/her oath of office very seriously? What could he/she do? Plenty! Theoretically and constitutionally, this new President could, without the consent of Congress, decide that thousands of our federal laws were not constitutional and, therefore, tell the justice department to stop enforcing those laws. This new president could unilaterally decide that any number of government agencies were unconstitutional and, therefore, shut them down.  There are two parts to deciding if a law or an agency is unconstitutional. Something can be unconstitutional because it violates our inalienable rights. Something may be unconstitutional for the federal government but not necessarily unconstitutional for a state or local government.

Other than public opinion pressure, there is nothing to stop a president from taking such measures except impeachment. As long as this President had sufficient support in Congress, he/she could not be stopped from taking such measures.

There is also much a new Congress could do. If the votes are there, they could review all past Supreme Court decisions and decide if some of them should be declared unconstitutional.

Obviously, how far and how fast a president or congress moved to declare laws and Supreme Court decisions unconstitutional would have to be tempered by politics. For in the end, it is the people that have the final word and the people don’t necessarily make their decisions based on their interpretation of the Constitution, do they? My point is, even taking politics into account, there is much a new president and anew congress could do. They have the power and they have the obligation of their oaths to do what is right constitutionally.

Well, that’s what I’m thinking. What are your thoughts?


My blogging friend, AOW at Always On Watch just left me a message with a suggestion that I read a quote made by Milton Friedman  refering to John F. Kennedy’s innaugural address tat was carried in American Spectator article. Her reasoning for the suggestion was not related to this post but I find that it fits very well and so I am sharing it here:

“In a much quoted passage in his inaugural address, President Kennedy said, “Ask not what your country can do for you – ask what you can do for your country.” Neither half of the statement expresses a relation between the citizen and his government that is worthy of the ideals of free men in a free society. The paternalistic “what your country can do for you” implies that government is the patron, the citizen the ward, a view that is at odds with the free man’s belief in his own responsibility for his own destiny. The organismic, “what you can do for your ‘country” implies the government is the master or the deity, the citizen, the servant or the votary.
To the free man, the country is the collection of individuals who compose it, not something over and above them. He is proud of a common heritage and loyal to common traditions. But he regards government as a means, an instrumentality, neither a grantor of favors and gifts, nor a master or god to be blindly worshipped and served. He recognizes no national goal except as it is the consensus of the goals that the citizens severally serve. He recognizes no national purpose except as it is the consensus of the purposes for which the citizens severally strive.

The free man will ask neither what his country can do for him nor what he can do for his country. He will ask rather “What can I and my compatriots do through government” to help us discharge our individual responsibilities, to achieve our several goals and purposes, and above all, to protect our freedom?  And he will accompany this question with another: How can we keep the government we create from becoming a Frankenstein that will destroy the very freedom we establish it to protect?


26 thoughts on “Undoing Unconstitutional Laws and Supreme Court Decisions _ Updated

  1. I am thinking that is a very scary perception my friend. It is a wonderful thought to redress the wrongs that have been made but it is a very slippery slope that we would be traveling down. Once the President and Congress start redoing the wrongs that they perceive the Supreme Court has made, where do they stop. We have the example in power now of a President who thinks that the laws do not apply to him, expand that out to a Congress and you have 2009 and 2010 where bills were rammed through without any real consideration of the effects or the Constitution. Mr. Obama has already declared that he doesn’t think some laws (DOMA for instance) are constitutional and refuses to enforce. What you will have without a Supreme Court that is relevant is just the type of democracy that our founders warned us of. The Constitution can be amended if enough people wish to do so, and has been done in the past. If enough people wish to make abortion illegal we can amend the Constitution and that should be the emphasis, changing the system in order that the political wishes of the times become law. This is one of the things that disturbs me about Mr. Gingrich! This kind of arrogance is the same type that has gotten us where we are today. Deciding that you are right therefore the others are wrong is not a republic but it devolves into a dictatorship most of the time.

    1. Amend the sentence ” If enough people wish to make abortion illegal we can amend the Constitution”, it should read ” If enough people wish to make abortion illegal we can amend the Constitution, and that should be the emphasis, –not– changing the system in order that the political wishes of the times become law!

    2. I do indeed see and understand your worries, Patricia. But, if our Presidents and Congresses had operated as I described since day one, we would have today a very small central government with much fewer laws. Our unelected judges of the Supreme Court are not necessarily any wiser or more honest than any other persons. We have seen what activist judges can do. I believe the oath taken by our elected officials and their appointees should mean something and the we the people should hold them all accountable to that oath.

      1. Oh absolutely we must hold them accountable Jim, but we must do it through education and elections. It is up to the people to educate themselves and for those of us who are aware, it is our responsibility to share that information. We only have to look at the election of 2012 to see how an educated public can affect change. It didn’t go far enough but that is where we have to stay alert and keep up the pressure. The reason we are where we are is not the fault of anyone but ourselves. We got lazy and fell asleep. There are laws on the books for removing judges, they are not being applied. We must educate, inform and insist that laws be followed or the people we elect to do that will be removed themselves. There are so many ways that Congress itself can affect change that is not being used, such as the power of the purse. If we have a strong Congress we will have the balance that the founders intended. A stronger presidency will only lead to one man making decisions based on what he believes is right. No matter to morality of any man, they are only men. better to make sure that the Congress we elect has the power to nullify and evil and corrupt man along with a strong judiciary to back them up!

      2. We definitely have a monster by the tail. A monster of our own creation. I probably should have qualified my position some what. A president, foe example, should have to explain in writing why he believes a certain law is unconstitutional along with cited references to clauses of the constitution and/or other historic documents like the Federalist letters. Then, if enough congressmen and senators still disagree with the president. they are duty bound to impeach the president. That was, I believe, our Founder’s intentions.

  2. I’m not sure how this affects your thinking here, but the Supreme Court granted itself the status of final arbiter in Marbury v. Madison.

    I share loopyloo305’s slippery slope concerns. Consider if the current executive felt free to ignore rulings of the SCOTUS.

    1. Yes, the Marbury v. Madison case was mentioned in the linked article. Pray tell me, CT, under what part of the Constitution did the SCOTUS get the power to declare themselves the sole arbiter of the constitution. Our current executive has ignored rulings of SCOTUS and although I personally supported the position of SCOTUS, I did defend, in these pages, the President’s right and obligation to do so if he finds the decision to be unconstitutional. This is the principle behind Mises’ Tom Woods’ book” Nullification.”. In the end, it is the responsibility of the people to decide and, therefore, we should be much more careful who we elect to represent us. I would ask that you also read my response to looploo305.
      It would be nice if Plibius Huldah would come by today and share her insights.

  3. Excellent. How the Supreme court, (9 unelected people who hold positions for life) became the “arbiters” of what 300 million people may or may not do legally is beyond me.

    It certainly wasn’t the original framers intention. We can go back and read the debates on the Constitution and the Federalist papers to ascertain this.

    And when was the last time EITHER party gave a damn about what was constitutional.

    Our constitution is one of the greatest documents ever to come from the mind of man. It’s a shame we have forgotten about it.

      1. I understand, Steve. I do wish Punlius-Huldah would come by and share her thoughts. As I said to loopyloo if our presidents and Congresses had operated as I described since day one, we would have a small government with much fewer laws today.

  4. I just recently read somewhere else that the SCOTUS did not have the final say and that the first presidents routinely ignored their rulings if they felt they were wrong. This is the opposite of all that I had been taught and even though it is interesting I fear that it would lead to dictatorship if the wrong man where in the White House. I don’t think this is a path that we would want to start down.
    On a side note I just started reading Mark Steyn’s After America and he had a line that said itis only a matter of time before a federal judge decides that the constitution is unconstitutional–a brilliant line, but one I fear may someday seem prophetic.

  5. Here is some “loven,” Jim. I love this post. Actually, I saw the video of Newt discussing this. I had a bit of trepidation hearing him, only because at first it sounded a little too much like too much arbitrary power. However, as I mulled it over, I thought …you know, someone needs to be the grownup and do exactly what you suggest here, i.e. rescind what is obviously unconstitutional. That is exactly what Newt was proposing to do. We aren’t getting anywhere with all this tip-toeing around the elephant in the room. I admire Newt for pointing out the glaring obvious, which is we are now swamped with unconstitutional arbitrary nonsense and if someone doesn’t finally do something about it, we might as well throw in the towel. When Newt said he would throw out the judges who are legislating from the bench…I was right in there cheering. Firing the czars and eliminating or reinventing (reining in) the agencies that are so out of control is a GREAT idea.

    Also, I’m with Infidel on this. We do have the Federalist Papers to guide us through. Invaluable. No doubt the arguments will ensue. People will scream that this is the 21st century and those old dead guys don’t apply to our day and time. All heck will break loose. All immature leftists, socialist brats, and control freaks will pitch a bloody fit. But again…it would be worth the effort to get us back on track.

    I think this is our only hope of renewing America. Thanks for your thoughts!! I’m on with it! So there is your “loven!”

    1. THANK YOU, Cheryl! I was feeling pretty lonely yesterday. So it was a pleasure to read your comment this morning. Some how we have to find a way to unwind all the structural changes the left has made to the government our Founders envisioned.

  6. SCOTUS, an arbiter of the Constitution? In theory, but in reality — !! Still, Newt’s comments are not befitting of a putative conservative. If one president can ignore SCOTUS, all of them can do it. Of course, they do it now (where has the Court been during the disastrous and unconstitutional reign of Obama & the Democrats?) As the old Romans said, “Quis custodiet ipsos custodes?” Who watches the watchers? Or something like that. The answer seems to be, “Nobody.”

  7. When our nation was young, it was not uncommon for the president and other leaders to seek the counsel of the Supreme Court justices BEFORE moving forward with legislation. I wish that were the case today. Giving counsel is not the same as a ruling by the entire court, but why, for example, are we still waiting for a ruling on healthcare when IF the supreme court had seen the legislation they could have pointed out the constitutional hurdles? (And maybe it would have fallen flat at that juncture).

  8. I mentioned above that I was reading Mark Steyn’s After America, well he had a Lincoln quote in his book that deals with this very issue. In a chapter entitled “The Bureau of Compliance” which is what he calls the judiciary, he quotes Lincoln:

    “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed upon the decisions of the Supreme Court…the people will have ceased to be their own rulers.”

    I thought about you and this post the minute I read it and I thought I would share it with you because you have taken quite a bit of heat for this post.

    1. Thank you, Steve, That was nice of you. I took some heat and that’s okay. I can take it. I have to write what I believe. If not, then I shouldn’t write at all. I still believe that Lincoln was right. We old geezers can be pretty damn stubborn. 🙂

  9. My understanding is that it was thought when the Constitution was drafted that all three branches of the government had the right–if not the duty–to weigh in on the constitutionality of an issue, and not just the Supreme Court. On this basis, the Supreme Court is not the final arbitrator, even though they claimed that role early on the the history of the US.
    Certainly, Andrew Jackson felt free to ignore the Supreme Court as he did not see its precedence as necessarily binding. Abraham Lincolns view of Jackson’s actions and of the Dred Scott decision should be read in full by anyone interested in this issue. http://www.freemaninstitute.com/lincoln.htm While in his speech Lincoln gave approval to the idea that precedence should be controlling, he also asks the questions, “Which precedence? And are all precedences created equal?” In the end, Lincoln effectively overturned the Dred Scott decision through a war and an executive order. The constitutional amendments added later only ratified what Lincoln had already done.
    Gingrich–being a historian–surely knows all this. At the same time, there are slippery slope issues at stake. But didn’t the Supreme Court put us on that slippery slope with its expansive understanding of the Commerce Clause and with Roe v. Wade? How could Gingrich make things more dangerous than they already are?

    1. An excellent comment, John. Thank you. I didn’t get much support on my stance. Although i agree with people that it is a slippery slope, I believe we have already slid a long way down that slippery slope and it will take bold action to return our country back to state of constitutional law.

  10. Some have mentioned we must remove those officials that do not adhere to our Constitution. I agree, but would take that statement even further, We should prosecute those elected/appointed officials that act outside the parameters of the Constitution.

    It’s my belief we should not just “give them the boot”, there should be punishment for others to see.

    1. Dannyboy, thank you for visiting Conservatives on Fire and sharing your thoughts. I do share your wish of seeing some of these cretins behind bars. Once a President, Senator or Congressman has been removed from office or has resigned, they are subject to criminal or civil charges unless they have received a pardon as Richard Nixon did from President Ford.

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