Last week I wrote about the Electoral College and how it serves as sort of a mediating body in the selection of the President. It serves to mediate between the will of the people as a governing body, based on majority rules, and the will of the states as governing bodies, based on the principle of federalism. But I got to thinking that the presidency operates as sort of an electoral college for deciding who the real rulers of America are.
Americans rightly make much of whom the next President will be, because the presidency is a powerful office. President Obama has shown just how powerful it can be if a President is willing to use the extra-constitutional powers found in a pen and a phone. But the President’s power to influence Congress and to issue executive orders isn’t the most important power the office possesses.
What we must appreciate is that the President services as a one-person nominating committee to the body that actually rules America. In that sense, the Office of President is a bit like the Electoral College—it is that mediating “body” that sits as a buffer between the people and the Supreme Court that actually rules us.
That the Supreme Court rules America today is not hyperbole. The late Supreme Court Justice Scalia said it this way in the Obergefell same-sex “marriage” decision last summer:
“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of nine lawyers on the Supreme Court.”
The power of judicial review—the power to judge a state law or congressional enactment as contrary to the U.S. Constitution—has always been powerful. But Justice Scalia’s statement was recognition of the fact that, in Obergefell, the Court not only exercised the power to declare that a state law was unconstitutional, but took upon itself a new power to declare what the new state law must be.
When the Supreme Court can decree what laws a state must affirmatively enact or, if the state fails to “obey” what the Court says it must do, can “enact” those laws anyway for the state, then the Court is ultimately in charge. The powers of the presidency, Congress, and the states are subordinate and subservient to the Court, and the Court, not the Constitution, is supreme.
While I care about a lot of issues—laws relative to gun rights, abortion, religious liberty, social experimentation in the military, immigration, fighting terrorism, etc.—how our elected officials will deal with these issues is only the penultimate issue; as much as I hate to say it, the ultimate issue is who is on the Supreme Court and to what extent will the Justices “allow” these federal and state elected officials to address these issues.
I loathe that last statement; I don’t want to concede its truthfulness, because it is a statement our Founding Fathers would have never made or envisioned Americans making. But until we have some members of Congress willing to reign in the Supreme Court, and we won’t have those until our citizens and state officials demand that our members of Congress do so, that’s where we are.
Choose wisely over the next few days as you vote in the Presidential Primary, because you are electing the person who has the sole power to nominate members to the de facto ruling body in America.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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