A Constitutional Death and the Need for Independence

Last week two events occurred involving the judicial branch of government.  One was at the national level and the other was at the state level.  In the former instance, a constitution died and in the latter instance, the last hurdle to resurrect a constitution was removed.  Today, in honor of Independence Day, it is appropriate to consider what “we the people” should do about the former.  And in this Friday’s “Five Minutes for Families,” we will look at what we should do about the latter.

Last week, the United States Constitution died in the case involving the federal Defense of Marriage Act (DOMA).  Ironically, it was killed by the “living constitution” approach to constitutional interpretation that now dominates legal and judicial thinking.

It died because the Constitution as a fixed anchor for the ordering of our federal government was destroyed.  With the Court’s DOMA decision, that anchor was finally hoisted to the deck of the ship of state, and as a consequence, our federal government is now fully adrift on the ocean of ink that fills the pens of our Justices as they re-write our Constitution.

The Constitution expressly states that the federal judicial power, including that of the Supreme Court, can only be exercised if there are certain types of “cases … or controversies” involved.1 In the DOMA decision, it was acknowledged that there really was no longer any “case” or “controversy” before the Court.  The plaintiff had obtained the relief she had sought and the defendant, the United States, had chosen not to defend the case.  But the Court thought “prudential” considerations militated in favor of rendering an opinion.

By issuing a substantive opinion on the merits of what had been but was no longer a case, the Court effectively re-wrote the Constitution to provide that the federal judicial power can extend to “cases … or controversies … or where five people on the Supreme Court otherwise agree it would be prudent to interpret the Constitution anyway.”

Such a flagrant judicial usurpation of the plain language of the U.S. Constitution means the concept of a constitution that provides any objective meaning by which to determine when people and Congress are “playing by the rules” is dead.

Such radical action requires a radical response.  But such is our history.  In the words of that Declaration we now celebrate, our Founding Fathers said:

“. . . when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce [the people] under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.”  (emphasis added)

Last week, the “long train of abuses and usurpations” by the Supreme Court pulled into the terminal of “absolute Despotism.”  “We the people” no longer govern ourselves.  Five people on the Supreme Court do.

Therefore, I believe our Founding Fathers would today remind us of our “duty” to “provide new Guards” for our “future security.”  The only way to breathe life back into the Constitution and rescue it and ourselves from tyranny by the judiciary is to amend the Constitution by allowing a supermajority of Congress to “overrule” decisions of the Supreme Court on issues of constitutionality.

Such an exercise of power by Congress would be rare, for only in the most egregious cases would a supermajority be reached.  But such an amendment would once again allow “we the people of the United States” — not a majority of the people on the U.S. Supreme Court — to hold the power to determine the course of our federal government and the contours of our Constitution.

So tomorrow, as we celebrate our nation’s fight for independence from Great Britain, we must remember that the fight for freedom and independence is not over.  Now the fight is to be free from judicial tyranny at every level and take back the responsibility and ability to govern our federal government and ourselves.


1  Article III, Section 2: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.  (emphasis added)