Whenever state laws are overturned by the Supreme Court, such decisions are often cited as repudiation against any sort of argument for their legitimacy. While case law is regularly debated, the court’s constitutional power to make such reversals is rarely questioned. Courtly precedents are usually referenced in support of such actions rather than a constitutional basis.

But the power to offer opinion does not equal the power to make law. While today, most believe that Supreme Court justices carry an aura of infallibility in doing so, that perception was not always the case.

The Constitution delegates very little power to the federal judiciary for a reason. Since British history was rife with treacherous kings who packed the royal courts with those who would innately endorse their aims, the founders embraced the separation of powers doctrine espoused by Charles de Montesquieu for a reason. The judges serve for life to separate them from kingly and pragmatic interests, not for assurances of power.

The Supreme Court was constructed to adjudicate law for specific cases, mostly disputes among states or situations in which the United States is a party. The high court was assuredly never meant to override law or overturn state law, and even the proponents of judicial review in the ratification conventions never explained this power in relation to overturning state law. How can I assert this with certainty? Because the Constitution’s biggest proponents assured us of this. The proof lies in the states, where the Constitution was defended against some of the most compelling attacks by the Brutus Writings, Patrick Henry, and other powerful voices of opposition.

These questions should have been answered when John Marshall refuted the apprehensions of George Mason during the Virginia Ratifying Convention. Mason strongly condemned the Constitution because he believed it would allow the nationalists to exploit and annihilate the state courts. Mason said, “There is no limitation. It goes to every thing. The inferior Courts are to be as numerous as Congress may think proper. They are to be of whatever nature they please.”[1] Mason argued that the scope of the cases that would be taken up by the federal judiciary would be virtually unlimited, noting “When we consider the nature of these Courts, we must conclude, that their effect and operation will be utterly to destroy the state governments. The next day, John Marshall disputed these sentiments, noting “The objection, which was made by the Honorable member who was first up yesterday (Mason) has been so fully refuted, that it is not worth while to notice it.”[2]

It all began with Fletcher v. Peck (1810), where the high court reversed a state law for the first time. This was done under malevolent and confounding circumstances. When Georgia enacted a state law which reversed land sales implicating members of Congress in bribery, the reversal was declared unconstitutional by the John Marshall Court. Essentially, the result was the Supreme Court getting away with passing a law which read: “Georgia’s ability to revoke corruptible land sales is hereby annulled.”

In Wickard v. Filburn (1942), the Supreme Court made a decision as law by explaining that growing a surplus of wheat was a violation of the commerce clause, and thus the court was allowed to regulate individual production. These decisions were not exceptions; they were the manifestation of the court’s majestically conjured lawmaking power. It is much more common now for the court to reverse state law, while federal law is often strongly endorsed. The court’s statement in this case was clear: “Whatever property rights Ohio’s Constitution affirms, it is our right to cancel them.”

Many of the founders espoused the view that the Supreme Court was not the sole arbitrator of all constitutional issues, and could not hold such power to make such irrevocable decisions. Thomas Jefferson famously made a political career of opposing the federal judiciary in rendering opinions as law. Realizing that the Supreme Court did not take up any of the appeals of those convicted under the Sedition Act, he drafted the Kentucky Resolution of 1798. Considering the development of the Marshall Court, he wrote that a general judiciary with the power to make such decisions as law was “dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”[3] Jefferson wisely recognized the truth: “The Constitution has erected no such single tribunal” to operate in such a manner.[4]

The founders and framers delegated most powers of the general government to the legislature. It was done so intentionally, as one house was closely aligned with the interests of the people (The House of Representatives), while the other was representative of the sovereignty of the states (The Senate). When the courts act to create de-facto law rather than by rendering of opinion, they violate the intentional separation of powers doctrine used to diffuse powers not only between separate branches of the general government, but also the paradigm of the general government and the states. When a group of nine judges attempt to make law for a populace of 310 million and settle constitutional questions for all time, they are acting against the interests of the compact of the Constitution. Such a situation is demonstrative of an oligarchy, not a republic.

[1] The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume III, Edited by Jonathan Elliot (Washington: Taylor & Maury, 1861), 476.

[2] Ibid, 502.

[3] Thomas Jefferson to William Jarvis, September 28, 1820, in The Writings of Thomas Jefferson: Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private, Edited by Henry Augustine Washington (New York: Derby & Jackson, 1859), 178.

[4] Ibid.

Dave Benner
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