The following is based on an excerpt from my book Out Last Hope: Rediscovering the Lost Path to Liberty

For the last 100 years, most Americans have assumed the federal court system, and ultimately the Supreme Court, stands as the final arbiter in any constitutional controversy. But who made the federal courts king?

The Constitution certainly didn’t. Take a moment and go look for the clause in the Constitution that delegates to the Supreme Court the power to serve as the sole and final authority on what is or isn’t constitutional. You won’t find it, because it does not exist.  The Constitution tasks the Court with “judging cases.”

So, who placed the Supreme Court at the pinnacle of Constitutional interpretation?

Why, the Supreme Court itself did!

In 1958, the SCOTUS declared “constitutional law,” as determined by the federal court system, the supreme law of the land, on equal footing with the Constitution itself. The Supreme Court set itself on its own throne in its ruling in Cooper v. Aaron, a case relating to school desegregation.

“Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land.’ In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as ‘the fundamental and paramount law of the nation,’ declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60, that ‘It is emphatically the province and duty of the judicial department to say what the law is.’ This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

The Cooper decision hangs on Marbury vs. Madison (1803). The Marshall Court ruled the Judiciary Act of 1789 unconstitutional. This was the first time the Supreme Court used the power of judicial review. And in a sense, the court did bestow upon itself the power by its exercise thereof. But in fact, the idea that courts could invalidate unconstitutional law pre-dated the Maybury ruling and even the ratification of the Constitution. Alexander Hamilton discussed the concept in Federalist 78.

“[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

So, nobody understanding the nature of the judicial system should question that the court possesses the power to declare an act unconstitutional, and the judiciary rightly has the final say in a dispute between the various branches of the federal government. Its rulings stand supreme only in those cases the Constitution gives it the power to judge. The Court checks legislative and executive power. But the question remains: does the Court possess sole authority to declare an act unconstitutional when a dispute arises between the federal government, and the states or the people?

Or more simply put: does a single branch of the federal government serve as the sole judge of the extent of the federal government’s own power? Should the created get to dictate to the creator the condition of its own existence?

To answer, “Yes,” opens the door to tyranny, because such a system leaves no option for the states or the people to exercise in their defense should all three branches conspire to impose an unconstitutional measure. In essence, those who advocate supreme judicial authority tell the states and the people to “sit down and shut up” if a federal court puts its stamp of approval on an unconstitutional act. The notion invalidates the Constitution as the supreme law of the land, instead vesting that power in the pronouncement of five out of nine judges. It changes the American system from a constitutional republic to an oligarchy.

This is absurd in light of the framers’ deep distrust of concentrated power.

So, who has the final say? According to James Madison, the people of the states – because they are sovereign in the Constitutional system.

Here’s how Madison put in in his Report of 1800.

“The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”  

So why do we call it the Supreme Court if it isn’t really supreme?

Because it is – within its proper sphere. Back to Madison.

“However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.”

So in reality, the federal courts aren’t king. The people of the states are.