Issues Large and Small
The 1930ís spurred a further growth of the acceptance of the power of the Supreme Courtís authority to make constitutional rulings. The Supreme Court judges appointed by Republicans began to declare portions of FDRís New Deal program unconstitutional on 5-4 votes in the 1930ís. In a nutshell, conservatives tried to use the Court to invalidate Rooseveltís programs.
In a counter move, FDR then tried to pack the court by adding new justices, but this action was seemed to be so blatantly tyrannical that FDR backed off. But also, the Supreme Court also seemed to back off and much of the New Deal program went uncontested. The confrontations and controversy over the Supreme Courtís authority abated with World War II.
However, the historical point is that Republican conservatives were willing to vastly expand the power of the Supreme Court to declare laws passed by the Congress (the will of the people) and signed by the President as unconstitutional.
The controversy and confrontations over the authority of the Supreme Court emerged again with the Warren Court. In the Brown v. Board of Education case in 1955, the Supreme Court declared that discrimination in public schools was unconstitutional. That segregated schools were inherently unequal. Now the shoe was on the other foot. The Conservatives had accepted or promoted the notion that the Supreme Court had the authority to declare laws or actions of the executive and legislative branch unconstitutional with the FDR rulings were now hard pressed to reverse themselves and find that the Supreme Court and no authority for judicial review.
Although he complained bitterly, President Eisenhower enforced the ruling of the Supreme Court and the great battles of integration had begun and the Supreme Court was given the authority to rule on constitutionality of any and all laws made by stated, federal and local officials. He did not give Andrew Jacksonís reply and refuse to enforce the actions of the court. The era of judicial tyranny had begun.
Despite the Supreme Courtís good intentions to attain equality for African-Americans in education, the ruling ended up as a disaster. Public schools are as segregated today as they were when the decision was made. The decision of course provoked immediate conflict in the South that could only be ended by federal troops. But after that occurred the South began implementing a system of dual education where whites go to private academies and African-Americans to the public schools. Desegregation that might have been accomplished gradually through a change in the underlying attitudes that drove segregation was not accomplished by the ruling of the Supreme Court.
While the underlying premise of the Fourteenth Amendment, the equal enforcement of the law, seems like a sensible idea, in fact, there are notable exceptions. For example, adults between the ages of eighteen and twenty-one are not permitted to purchase alcohol. This is despite the fact that they can be drafted into military service, make legal contracts and marry. Is this not clearly a violation of the Fourteenth Amendment?
Or, is it not a violation of the Fourteenth Amendment to prohibit adult brothers and sisters from marrying? Or, why should not fathers and daughters marry? Or is it not a violation of the Fourteenth Amendment to tax different individuals at different rates? Why should a man making more money have to give a greater percent to the government? These examples show that the government and society regard certain restraints on the application of the Fourteenth Amendment as socially desirable.
The federal judiciary has vastly expanded the notion of "judicial review" of laws to "judicial remedies." Federal, state and local officials now find that once a ruling has been made by the federal court on the constitutionality of the a law, the court demands to have a plan to remedy the alleged defect. Most notable of these are that school districts must submit plans for desegregation or busing plans to satisfy the federal courts. This is a vast expansion of power from Marshallís simple claim for judicial review.
Lawyers writing books about law are not shy about expanding the power of the legal profession at the expense of the representatives of the people. For example, we find in one book on the Supreme Court "the Founding Fathers created the Supreme Court to construct and interpret the meaning of the Constitution. Chief Justice Charles Evan Hughes summed up the Courtís responsibility in this way, ĎThe Constitution is what the Judges say it is.í"
The Founding Fathers said no such thing. It has been the gradual, creeping, usurping of power by the Supreme Court that has established in practice, what is not established in the Constitution or in laws passed by representatives of the People of the United States. It has led to a commandeering of political power that would leave the Founding Fathers, well "shocked."
The Founding Fathers were concerned with the injustices they felt they had suffered under the King and Parliament and they meant to create a government system, the Constitution that rectified those abuses. As in the English system, the law is what the Parliament passes and the King agrees to. They did not see that the Parliament or Congress was to be restrained (with few exceptions such as slavery) by the document itself.
The Bill of Rights has produced certain advantages and disadvantages to the American people. For example, in the issue of free speech, the British Parliament has passed draconian hate speech laws which only apply to British citizens describing Muslim actions, but are not applied to Muslims asking for deaths of those who offend Allah. While this may be offensive to British principles and customs of free discussion, there is nothing "unconstitutional" about the laws under the British system.
The American people feel that their right to free political speech is protected by the First Amendment. However, the rulings of the Supreme Court are bizarrely contradictory. The Court has ruled that pornography and advertising are protected forms of free speech. However, in one of the most obnoxious pieces of legislation passed since the Alien and Sedition Act of 1798, the Supreme Court ruled that the Congress of the United States could limit political advertising thirty and sixty days before an election as contained in the McCain-Feingold legislation.
The Plessy decision of 1896 commented as a sidebar issue of the eminent domain in regard to a railroad. "Clearly it (the railroad) could not, (have the right of eminent domain) unless taking land for such a purpose by such an agency is taking land for public use. The right of right of eminent domain nowhere justifies taking property for a private use." Despite this clear, unambiguous meaning understood and accepted by the people of the United States, the Supreme Court used twisted legal logic to deem the taking of the property of citizens in New London, Connecticut for the advancement of private interests as Constitutional.
If one thinks that the Supreme Court is composed of nine wise men, one only has to read a few decisions to come up upon lousy logic, missed facts and even complete misstatements of what the written documents actually say. Justice Hugo Blackís majority decision outlawing prayer is a case in point. Black begins by saying the non-denominational prayer is "wholly inconsistent with the Establishment Clause" without actually stating what the clause says. The clause in the First Amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"
Despite the fact that this is specifically directed at the Congress, it is not directed at the States or local governments, Black goes on to assert a broad meaning to the "Under that Amendmentís prohibition against governmental establishment of religion..." But the First Amendment does not prohibit State governments from establishing or supporting religion. At the time, several states did financially support given specific religions, religion was an integral part of government functions. In other words, the Congress can make "no law respecting" but it does not prevent the States from doing precisely that.
Justice Black then goes on to create hobgoblins of religious persecution in the our history, but he can only clench at straws with his opening reference to Englandís Book of Common prayer in 1548. He asserts that there was a widespread awareness among many Americans of the dangers of the union of Church and State. The Founding Fathers were so unconcerned about this danger that they did not even mention it in the text of Constitution because it was not an issue to the delegates. It was only brought up as an issue because it was of a concern in certain states, so it was incorporated into an Amendment. The concern is not to prohibit the states from establishing a religion (they had done that) but that the federal government would force a religion on the States.
Then Black presages the future by blithely denying the future impact of this ruling that it will "indicate hostility toward religion or toward prayer. Nothing, of course could be more wrong." Americans have learned that this 1962 decision has resulted in an avalanche of hostility toward religion affecting such diverse issues as the display of the Ten Commandments in a courthouse to the singing of Christmas carols at school functions. The Supreme Court has become the ruler of the United States in all matters, large and small.
The surest end for the Judicial Tyranny that has grown to cancerous proportions in American life is for the Congress and the President to reassert their right and obligation as protectors of the American people and the Constitution. They would be well advised to emulate Andrew Jackson and say, "You have made your decision. But we refuse to recognize it."
The Congress and the President would be wise to assert that no federal judge has the right of judicial review of the laws passed by the People. Period.
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