If Americans were a self-governing people, ours would be a
different country. There
would be voluntary prayer in the schools and term limits on members
of Congress.
Pornography would be restricted. There would be legislated limits
on "abortion rights."
The Citadel and VMI would still have their all-male cadet corps.
America's cities
would never have been torn apart by the lunacy of forced busing for
racial balance.
And, at Christmas, we could drive through town and see a beautiful
display of the
Nativity scene, with carolers singing "Silent Night."
Why do we no longer live in such a republic? Because the U.S.
Supreme Court has
usurped decision-making power over political, economic and social
policy, and
Congress lacks the courage, or desire, to take it back. Judicial
supremacy -- the
doctrine that the Supreme Court is the final authority of what the
Constitution
commands -- is the vehicle the court has used to make itself the
ruling branch of
government.
That may be about to change. There is a whiff of
rebellion in the air. The
lawlessness of the federal courts has begun to breed a Jeffersonian
defiance. Alabama's
governor has threatened to call out the National Guard to resist
any judicial order to
take down the Ten Commandments posted on the wall of an Etowah
County
courtroom.
In Olympia, Wash., state representative Kathy Lambert
has won the
endorsement of half the Republican majority for a law to give the
legislature power to
review, and overturn, state supreme court decisions that invalidate
acts of the
legislature.
For example, if the Washington Supreme Court, like the court in
Hawaii, should
declare that homosexual marriages must be recognized as valid, the
legislature could,
by majority vote, could simply overrule the court and affirm the
constitutionality of the
law. The governor could follow whichever opinion he wished, until
the people made the
final ruling in a referendum. To the people, and to their elected
representatives, would
be restored the power to override a mistaken, foolish or arrogant
court.
Rep.
Lambert's bill, "The Balance of Powers Restoration Act," is a
direct assault on the
principle, first asserted by Chief Justice John Marshall in Marbury
vs. Madison (1803),
that the court is the final authority of what a constitution says.
Thomas Jefferson was
enraged by Marshall's power grab.
"I have long wished for a proper occasion to have the gratuitous
opinion in Marbury vs.
Madison brought before the public and denounced as not law," he
wrote in 1807.
Earlier, Jefferson wrote that to allow the court to interpret the
Constitution for
Congress and president would make the judiciary "a despotic
branch."
Not until the
modern era have we understood the full implication of Jefferson's
warning. The issue is
no small matter. For it is the Supreme Court that has frustrated
the will of a
conservative American majority from creating the kind of country we
want to live in --
rather than the kind of country the court insists that we live in.
Why has not Congress,
which has clear constitutional power to restrict the jurisdiction
of the court, and even to
abolish all lower federal courts, refused to take a stand for
majority rule? Timidity and
cowardice are one explanation.
Should Congress reassert its authority over explosive questions
like women's rights,
affirmative action, abortion, pornography and religious expression
in public institutions,
members would have to take responsibility at election time.
Congress prefers to let this
cup pass away.
There is another reason. As Jefferson wrote in 1825
in a letter to
William Giles, all three branches of the U.S. government are
engaged in a "combination
to strip their colleagues, the state authorities, of the powers
reserved to them, and to
exercise themselves all functions, foreign and domestic."
The
Supreme Court has been
allowed by the Congress to turn the states of the union into
judicial fiefdoms. It is time
our Republican "revolutionaries" emerged from the warmth and
security of their rabbit
warren and showed at least the moxie of a fifth-grade teacher named
Kathy Lambert.
Here is a simple test to determine if the Republican Congress has
the courage to stand
up to the Supreme Court, and if it truly believes, as it claims, in
imposing term limits on
itself. Let Congress pass, by majority vote, a law stating:
- The
50 states have the right
to impose term limits on their congressional delegations, and
- The Supreme Court
shall have no "appellate review jurisdiction" of this federal term
limits law, under Article
III of the Constitution.
Would the Supreme Court have the courage
to confront a
determined Congress that has inherent power to stuff the court back
into the box the
framers intended? I doubt it. But let us see.
