The Supreme Court has no Constitutional authority to declare any Act of Congress or action of the President of the United States "unconstitutional."
Nowhere in the United States Constitution or Federal Legislation is any right given to the Federal Judiciary to declare any action the Executive Branch or the legislation of the Legislative Branch unconstitutional. Therefore, all acts of the executive branch and all legislation passed by Congress are inherently constitutional and not subject to judicial rule.
The Supreme Court has usurped the authority to declare legislative acts and acts of the executive unconstitutional. It has been the submission of the Executive Branch and Legislative Branch to the federal courts that have created the current Constitutional crisis.
The U.S. Constitution creates a federal judiciary, but nowhere does it give the federal courts any power to declare anything "constitutional" or "unconstitutional." Since the power that the Supreme Court now has is in fact "unconstitutional," it is illegitimate and need not be obeyed by either the legislature or the executive.
The creators of the Constitution stated that there shall be a Supreme Court and then such inferior courts as created by Congress. The duties of these courts are in one brief sentence: "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."
First, this sentence clearly states that Congress can limit the authority of the court. It could for example declare all cases involving the authority of the President of the United States to be not within the jurisdiction of the court.
But the key question is what does "both as to Law and Fact" mean? Does this mean that the Federal Courts were limited to the Law as passed by Congress and signed by the President? Or, does it mean that "Law" and regard the "Law" as the Constitution? If so, it gives the Federal Courts the right to declare any action of the Executive or action of the President "unconstitutional" and therefore null and void. The modern practice is to equate the "Law" with the "Constitution."
Clearly, the Framers of the Constitution did not mean to give a third branch of the government ultimate veto power over the legislature and executive. The framers spent a great deal of space defining how laws should be voted on, passed, their being subject to a veto by the President and how such a veto could be overridden by the Congress. Clearly, they would not then intend to give a total veto power of any law or action of the Executive or Congress to an undefined judiciary whose powers are but briefly enumerated.
The Framers of the Constitution saw the document has an operational manual for the U.S. Government and were mainly concerned that the Will of the People be implemented through the Congress. It was not until that several states required that a Bill of Rights be included in the Constitution that the document guaranteed certain rights to the People that could not be breached by legislation. This would include the rights to free speech, freedom of the press, the right to bear arms, etc. Their main concern was the relation between the Congress making the laws and the Executive implementing the laws, not the Constitution as a written protection of the citizenry.
Nor, did the framers of the Constitution regard the judiciary as any third branch. They did not deem to give it any specific powers. Rather, as the above sentence applies, the framers saw the judiciary as an administrative branch, to administrate the laws as approved by the Legislative Branch and enforced by the Executive Branch.
If the framers of the Constitution had sought to give the federal courts the power they have assumed today, what would they have written? Would they have written, "Legislation and actions of the President are subject to judicial review to determine their Constitutionality as determined by whatever the majority of the judges so decides?" Obviously, the framers would not dream of writing such because they would be creating a judicial tyranny. But, that is exactly what we have today because the Executive and Legislative Branches of government have over the decades conceded power to the judiciary that is not specified in the Constitution.
Political scientists have created an imaginary "checks and balances" theory of the American government wherein all three branches of government are co-equals. This gives a nice symmetrical metaphor to government, like a three legged stool. However, these political scientists and historians never offer any historical proof of that the Founding Fathers had any such scheme in mind.
The first claim of the Supreme Courtís to a judicial review of the Constitution was in the Marbury vs. Madison case in 1803. In this case, the Supreme Court assumed that it had the authority to assume whether acts of Congress were consistent with their interpretation of the Constitution. Chief Justice John Marshal claimed the Supreme Court became the arbiter of the Constitution, the final authority on what the Constitution means.
According to Marshall, "If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply." In short, the federal judiciary had the right to judicial review of all laws to determine whether they were in conformance with the Constitution.
Marshallís opinion is unique in that nowhere does he cite either law or the written Constitution as giving the Supreme Court such authority. Rather, he refers to Great Britain, "In Great Britain, the King himself is sued in the respectful for a petition, and he never fails to comply with the judgment of this court." He finally claims that "the judicial power of the United States is extended to all cases arising under the Constitution."
"Arising under the Constitution" is a dangerous little phrase. It means that the laws passed by the Congress and signed by the President can be challenged because someone questions if they are correct within the framework of the Constitution, in effect, if they are "constitutional."
It should be noted, that the greatest majority of cases heard by the federal courts are not cases related to the procedural, operational functioning of the executive and legislative branches. Rather, they are related to the "rights" granted in the Bill of Rights appended to the Constitution. The Bill or Rights was appended to the Constitution because many of the states had such language in their state constitutions and wanted similar language in the U.S. Constitution.
However, if the Founding Fathers had thought about it, they would have realized that the Bill of Rights set of principles inherently sets up the necessity to have somebody to interpret these super-laws. There is no precedent in English law to have the Parliament limited by some document as to what laws it may pass or not pass. This flaw was ignored at the time because of the desire to have the Constitution ratified by the States. But the flaw has only grown larger with time and now is a giant crevice.
While Marshall gave his and the Courtís opinion, there are no significant cases arising where the Supreme Court declares a judicial act "unconstitutional until the Plessy vs. Ferguson case of 1896.
In 1832, President Andrew Jackson is reputed to have said about a Supreme Court decision involving a dispute between the Cherokee Indian tribe and the State of George, "John Marshall has made his decision, now let him enforce it."
There is the famous Dred Scott v. Sandford decision of 1857, but this was not a case involving a ruling on the "Constitutionality" of a case. Rather, it was a more technical ruling that neither the Constitution nor any other law established that a person freed from slavery was therefore a citizen of the United States. The decision did not per se rule on the constitutionality of a law.
In contrast, in the Plessy vs. Ferguson, the Supreme Court did rule on the Constitutionality, that is, whether a given law violated the Thirteenth and Fourteenth Amendments. In the dissenting opinion, it is stated that it is the Court is to consider whether a law establishing separate railroad cars for African-Americans can be separate but equal, "whether it is consistent with the Constitution of the United States."
The Plessy vs. Ferguson case opened up a can of worms that has not been shut to this day. The Plessy vs. Ferguson decision stated that the Court had the authority to declare whether an act of a state was consistent with the United States Constitution, and its ruling became the law of the land. The precedent to make "constitutional rulings" had been set. The power of the people had been usurped by judicial fiat from the representatives of the people to the courts.
Usurping powers does not mean they are legitimate. The Supreme Court has no Constitutional authority to declare any act of any legislature or executive in the United States "unconstitutional," and until we recognize this is so, we will continue down the road to greater judicial tyranny.
Paul Streitz, Co-director
CT Citizens for Immigration Reform
Mr. Streitz is author of Oxford: Son of Queen Elizabeth I, The Great American College Tuition Rip-off and America First, Why Americans Must End Free Trade, Stop Outsourcing and Close Our Open Borders.