Last Among Equals

President Obama recently announced that his administration would no longer defend the constitutionality of the federal Defense of Marriage Act.

Whether one agrees with Obama or not on this issue, or with his tactic, it goes to the heart of a far more important and lasting question – which branch of government rightfully has the exclusive authority to interpret the Constitution and the laws of the United States?

Most contend that the power resides with the Supreme Court, even many conservatives.  Kenneth Starr has even referred to the Supreme Court as a “first among equals,” and while I have great respect for him, he is simply wrong in this regard.

Historically, such an opinion has no basis in fact.

The Supreme Court was never designated as the strongest of the three branches.  In fact, until the 1930s, it did not even have its own building, but met in the basement of the Capitol, or where ever Congress allowed them to meet.

This was not by mistake but intentional.  When examining a copy of the original map of the City of Washington, drawn up by its planners, one will find that no Supreme Court building exists.

It is also not an accident that provisions for the Supreme Court were placed in Article 3 of the Constitution, while Congress, intended to be the stronger of the three branches, was mentioned in Article 1, while the Office of the President was established in Article 2.

Furthermore, the Constitutional Convention of 1787 proposed a Council of Revision, a body that also included a supreme tribunal and would be armed with a veto power over all national and state laws.  The Council had the authority to review every law passed throughout the Union and to decide what would be allowed and what would not be.  The convention ultimately rejected the idea.

In a modified version, the proposed power was eventually split.  The Convention created both the Supreme Court, to exercise all judicial powers in cases brought before it, and a President who would take care of executive responsibilities, including the power to veto, or reject, bills passed by Congress.  The Supreme Court was not entrusted with such power.

The Court does not legally possess nearly the power it has usurped today, and does not have an exclusive right to interpret laws and the Constitution.  There is nothing in the entirety of Article 3 of the Constitution that gives federal courts that power.

Chief Justice John Marshall, in the case of Marbury v. Madison in 1803, assumed for the Supreme Court the power of judicial review, that is to make the final decision on the constitutionality of all laws.

The decision angered President Thomas Jefferson, who believed the federal courts, then under Federalist judges, were establishing a judicial tyranny over the rest of the government.

“The Constitution… meant that its coordinate branches should be checks on each other,” he said.  “But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

Jefferson himself was skeptical of the right of the Supreme Court to exercise judicial review.  “The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.”

Other presidents had similar opinions and took even harsher action when the Court interfered with the responsibilities of the executive.

Andrew Jackson had absolutely no respect for John Marshall or the Supreme Court.  In 1830, Congress passed the Indian Removal Act.  Georgia decided to remove the Cherokees within its borders but the Court sided with the Indians.  Jackson reacted angrily.  “Marshall has made his decision,” he said, “now let him enforce it.”  Jackson removed the Indians in defiance of the Court.

Jackson knew what many have forgotten.  “Courts have no law enforcement powers,” he wrote, “that is the prerogative of the executive alone.”

Abraham Lincoln also understood this fact and responded with even more anger when Chief Justice Roger B. Taney ruled that the President had exceeded his constitutional authority in waging war.  Lincoln even went so far as to write out an arrest order to have Taney detained, though the warrant was never acted upon.  President Lincoln simply ignored the Chief Justice and the Court.

Presidents have also used one of their strongest weapons, the veto pen, to rule on the constitutionality of laws.

Under Article 1, Section 7 of the Constitution, the President is given the power to veto, or reject, congressional acts.  “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated….”

Early American Presidents believed they had a duty to determine the constitutionality of federal laws before approving and then acting on them.

In 1817, James Madison vetoed a bill for federal funding of internal improvements, projects such as roads and canals, using constitutional arguments to make his case.

“I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.

“The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution,” he continued, “and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.”

James Monroe did likewise in 1822 with his Cumberland Road Bill Veto.

“I am compelled to object to its passage and to return the bill to the House of Representatives, in which it originated, under a conviction that Congress do not possess the power under the Constitution to pass such a law.”

In 1832, Andrew Jackson vetoed the re-chartering of the Bank of the United States in a famous altercation with Congress.

“Having considered it with that solemn regard to the principles of the Constitution which the day was calculated to inspire, and come to the conclusion that it ought not to become a law, I herewith return it to the Senate, in which it originated, with my objections.”

The bank bill, Jackson wrote, is not “compatible with justice, with sound policy, or with the Constitution of our country.”  Congress did not possess the constitutional authority to establish a bank, Jackson believed.

Franklin Pierce rejected a bill for public works in 1854.

“On such an examination of this bill as it has been in my power to make, I recognize in it certain provisions national in their character, and which, if they stood alone, it would be compatible with my convictions of public duty to assent to; but at the same time, it embraces others which are merely local, and not, in my judgment, warranted by any safe or true construction of the Constitution.”

In 1854 President Pierce vetoed another bill that would have provided government funds for the mentally insane.  “I can not find any authority in the Constitution for…public charity,” he told Congress.  “To do so would, in my judgment, be contrary to the letter and spirit of the Constitution and subversive of the whole theory upon which the Union of these States is founded.”

Grover Cleveland became the “Veto President” when he set a record of 414 vetoes in his first term alone.  In 1887 President Cleveland rejected a bill to provide seeds for drought-stricken farmers in Texas.  “I can find no warrant for such an appropriation in the Constitution,” he told Congress.

Early Presidents did not believe in the modern notion that Congress should pass any law it chooses, and then allow the courts to sort it out.  Such actions would have been considered a dereliction of duty.

In addition to the President, Congress also has explicit constitutional authority over the Court.  The Constitution vests Congress with “all legislative power,” that is all lawmaking authority.  This is precisely why courts are not allowed to make laws from the bench.

Included in congressional power is the right to set the number of justices on the Supreme Court.

Just as the Civil War was ending in 1865, and the government was considering a plan of Reconstruction in the South, Vice President Andrew Johnson became President after Lincoln’s assassination.  Even though he had remained loyal to the Union, Johnson was still a Southerner and Radical Republicans in the North were suspicious.  When two vacancies occurred on the Supreme Court, and not wanting Johnson to name any replacements, Congress simply removed the two positions.

But later, after Johnson left the White House in 1869, Congress decided to replace the justices for policy and political reasons.

In 1862, to help finance the war against the South, as well as their other spending schemes, Republicans, with the urging of Treasury Secretary Salmon P. Chase, had passed the Legal Tender Act.

This inflationary plan allowed for the creation and circulation of a national currency called Greenbacks, fiat money that did not have the backing of gold, though the Constitution specifically gives Congress the authority to “coin money,” not to print it.  In all, Congress issued more than $450 million in paper dollars during the four-year conflict, producing ample inflation to double the cost of living.  The United States had not seen that level of inflation since the days of the American Revolution with the old, worthless Continental dollar.

In 1870, the United States Supreme Court, in the case of Hepburn v. Griswold, ruled the Legal Tender Act unconstitutional.  The Chief Justice in that case, who sided with the majority, was none other than Salmon P. Chase.  The decision angered Republicans in Congress, who then raised the number of seats on the Court back to its present total of nine.  President Grant then nominated two new Stalwart Republican justices in 1870, in an effort to “pack it,” and the Court reversed itself a year later, in Knox v. Lee, allowing Congress the authority to issue paper currency.

Though the Constitution sets the Supreme Court’s original jurisdiction, Congress has the authority to limit the Court’s appellate jurisdiction, a tactic discussed in recent years by congressional Republicans in the hopes of stopping the Court’s attack on traditional American institutions.  Though ridiculed by Democrats as “unconstitutional,” Congress possesses the constitutional power to limit cases the Court can hear, under Article 3, Section 2 of the Constitution:

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.  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.

Congress has used that power in the past when needed.  As with the issue of the Court’s size, it was tested during the heated days of Reconstruction in the case of Ex Parte McCardle.

In 1869, a Mississippi newspaper owner and former Confederate general, William McCardle, wrote and published a series of editorials criticizing the North and its Reconstruction program.  Acting under the Reconstruction Acts of 1867, which provided for martial law, military commissions and tribunals, and the abolishment of the right of habeas corpus, the Union military commander in McCardle’s district arrested him.  McCardle sued to gain his freedom under the Habeas Corpus Act of 1867, a law passed by Congress that defined, by federal law, the rights under habeas corpus.

The Supreme Court, under Chief Justice Chase, had previously limited federal authority to try civilians in military courts and Radicals in Congress feared that if the Court heard the McCardle case, it might throw out the Reconstruction Acts, which would threaten the entire Reconstruction program.

Congress, acting under Article 3, Section 2 of the Constitution, removed the Court’s jurisdiction in all cases arising under the Habeas Corpus Act by attaching a rider to an appropriations bill.  When the case came before it, the Court upheld Congress’s right to withdraw its jurisdiction.

With such abundant historical evidence, it is perplexing why conservatives would place so much trust in the Supreme Court, an unelected body that has such great influence to affect public policy, when clearly the other two branches have been awarded more power by the Constitution.

Attacking Obama for his decision on the Defense of Marriage Act, Rush Limbaugh stated recently that the Supreme Court has the exclusive right to decide the constitutionality of our laws.

Newt Gingrich also opposed the President’s pronouncement in an interview with Newsmax, stating that Obama is not a “one-person Supreme Court” and his decision sets a “very dangerous precedent” that must not be allowed to stand.

But a fair question should be asked, would a conservative President defend the constitutionality of the Roe decision, or either the unconstitutional and obnoxious McCain-Feingold Act or the Patriot Act, both of which did so much damage to the first amendment?

The dangerous precedent is to take that kind of power away from the democratic branches of the federal government and hand it to an unelected oligarchy with lifetime appointments.

As Thomas Jefferson wrote to a friend, “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.”

Justices, with their power, are “more dangerous” because “they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

Jefferson had it exactly right.  If federal courts are allowed to make political decisions, our liberty is in grave danger.


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