I gave a fairly provocative talk a week or so ago to the Texas Federation of Republican Women (TFRW) in Austin on the two factors that, in my opinion, have led to our dysfunctional government. I identify two areas where our system of checks and balances has gone into the ditch: First, the states have abrogated their duty to be the first and best check against federal power (see 9th and 10th Amendments), and second, the courts have asserted a completely unconstitutional doctrine of judicial supremacy, and the states, the Executive Branch and the Legislative Branch have meekly complied because it absolves them of their responsibilities under the Constitution.
Once you get your head around the idea that the Supreme Court was never supposed to rule the country, it's like the scales fall from your eyes, and you can see not only the cause of so many of our current problems, but also the solution.
I've been asked for my notes by several people, and the problem is my notes are speaking cues, nothing more. But I've attempted to clean them up a bit and post them here, mainly because there are current issues like the census question and the Trump administration's immigration orders that I think are clear examples of unconstitutional deference to the courts.
So here they are. Hope they are useful and intelligible to someone.
. . .
Like humans in The Matrix movie were not living the lives of dignity and freedom they thought they were living, we Americans are no longer the self-governing people that we were meant to be. We are what the Founders tried to prevent and what the Revolution was all about—we are a RULED PEOPLE.
Our country was founded with the basic idea that the American people would not be ruled—they would rule themselves. Self-government. Our constitutional design is to facilitate government while preserving self-government—to prevent government from ruling over the people. Governing and ruling are different things. Just as government and the nation are different things. America is not its government—America is a people with a government. The interests of the government and the interests of the American people are not the same things, and are often diametrically opposed.
Our system of self-government depends on REAL, FUNCTIONING checks and balances.
First, significant powers were reserved to the states—the federal government was simply not allowed to do much.
Then federal power was divided between three generally co-equal branches of government. To get anything done requires CONSENSUS among the branches.
Every branch of government has an equal responsibility to the Constitution. The power and responsibility to interpret and apply the Constitution is NOT exclusive to the Supreme Court. For that matter, state governments and state courts also have an equal responsibility to interpret the Constitution. Even juries have the obligation to interpret the Constitution and apply it when rendering verdicts.
So what has gone wrong? Two things.
First, the states have abrogated their powers to the federal government. States have powers, not rights. People have rights. States have powers. Never use the phrase “states rights.”
Remember, the states sit atop the pyramid of political power—it’s not a linear progression. But the states have surrendered their powers to the federal government.
And it didn’t happen because of the civil war—it largely happened in the post-WWII period when states (whored themselves to the federal government) sold away their powers for federal dollars.
The states basically sold themselves to the federal government for funding. They gave up their sovereignty over education by taking federal education dollars, highway dollars, law enforcement dollars, etc. The federal government didn’t take away the states’ sovereignty by force—the states willingly sold it to the federal government. (The feds were able to do this because of the introduction and expansion of the federal income tax.)
This is a problem, because the states are supposed to be THE PRIMARY check on the federal government. When we talk about checks and balances, everyone forgets that the primary check on federal power is supposed to be the states.
And the second thing that has gone wrong is the development of judicial supremacy.
Legislative Branch was designed to be the slightly superior of the co-equal branches; Founders worried that judicial branch (courts) had the potential to become too powerful—purposefully weakened the judicial branch. Madison specifically said in Federalist 49 that the Supreme Court is not supreme over the other branches of gov’t.
Founders purposely deprived the judicial branch of the power to enforce their judgments. This was very much on purpose. Alexander Hamilton in Federalist 78: the judicial branch “may truly be said to have neither force nor will, but merely judgment; and must ultimately depend on the aid of the executive arm even for the efficacy of its judgments.”
Founders went out of their way to ensure that the Supreme Court could not enforce its decisions.
Over the years we have developed an unconstitutional idea called judicial supremacy. The infamously activist Warren court declared itself supreme over the other branches in 1958, claiming that it had the final say on constitutional interpretation.
Just as the states have abrogated their powers in checking the federal government, Congress and the executive branch have abrogated their power to interpret the Constitution and have deferred to the judicial branch.
Most of the most controversial, divisive things in politics these days have resulted from things that courts imposed on people. It’s not just Roe v. Wade. Other decisions as well.
If you have any doubt that the courts have become too powerful, why are the biggest, bloodiest political fights we have are over Supreme Court nominations? Because SCOTUS has amassed ultimate power. Because they are now our rulers. Why did people who didn’t like Donald Trump vote for him anyway? Why did Christians vote for a man who has acknowledged living an immoral lifestyle? Because of the absolute importance of the Supreme Court.
What is the solution?
What we need is for Congress and the states to reassert their Constitutional roles by resisting and ignoring directives when the federal government and the courts overextends their authority. I hope I live long enough to see some future legislature and governor of Texas simply tell the Supreme Court “thank you for your opinion, but we’re fine, thank you.” And do what we want to do.
But wait, you’re thinking: does that mean we can just ignore the Supreme Court’s decisions?
YES it does. And in fact it’s happened several times in history.
- Congress ignored the SCOTUS Dred Scott decision and banned slavery in the territories.
- President Lincoln ignored Chief Justice Taney’s writ in the farmer Merryman case
- State nullification—which both Madison and Jefferson both asserted
- Fugitive Slave Act
- Juror nullification
Scalia left us a coded hint in his dissent on the gay marriage decision. It concludes: “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
But as long as we operate under judicial supremacy, Supreme Court appointments are going to be the biggest fights there is, because it’s about ultimate power. We treat SCOTUS nominees as if they are demigods, because we have allowed them to assert and exercise godlike powers over us.