This is the season for major Supreme Court decisions, and a fine time to rethink the unions constitution — and the document, too, which we capitalize: The Constitution of the United States of America.
Now is especially propitious, in that recent decisions by the Robed Nine are solidifying a social revolution, gay marriage, and doing so while skirting some very bedrock notions.
The Supreme Court stands, in matters of law, supreme. Thats what I was taught in school. Three branches of the federal government — the Legislative, the Executive, and the Judiciary — work together to bind the states into one federation (original idea) or one nation (what we were taught with the Pledge of Allegiance). The two-housed Legislature makes the laws, including the setting up of taxes and budgets, and the declaring of war; the Executive branch enforces the laws, collects the taxes, manages the wars, all the while allowing the President to veto laws (while the Legislature can override vetoes, if it has the extra votes); and the Supreme Court interprets the laws. But the Supreme Court does more: it nullifies laws, too, finding some unconstitutional.
This power wasnt mentioned in the Constitution, but grew up in case law. It was a natural outcome of the institutions, though, and complaints that judicial review is, itself, unconstitutional, seem weirdly archaic and fanciful, taking the standards of a counterfactual nature — of fiction — and applying them to the current world. But maybe thats inevitable, too.
The above overview of the federal government might capture the main points from our civics lessons, but it misses something important: the states. The United States is a union of states; the Constitution is a compact amongst the states. And it is a principle of law that in compacts, the authority to interpret them is not limited to one party, unless specified in the document itself. And the ability to nullify laws as unconstitutional was not originally limited to the Supreme Court.
Indeed, the Father of the Constitution himself, James Madison, developed the notion of interposition, in which the states would act both separately and together — but outside the Congress and Presidency and Judiciary — to oppose unconstitutional laws. The Virginia Resolutions of 1798, written by Madison and adopted by the state legislature, opposed the federal government and its Alien and Sedition Acts on the grounds that the legislation exercised a power nowhere delegated to the federal government.
Nowadays, the bulk of the work of the federal government concerns tasks nowhere designated by the Constitution. Folks like Rep. Nancy Pelosi laugh in your face if you bring up the delegated powers idea. And trying to shoehorn the federal government back into its original constitutional limits seems as fanciful as stuffing a mountain down into a moles tunnel.
And yet the centralists in Washington, D.C., must be opposed. What to do?
The corruption of the city is so potent that virtually every representative tends to be bought off — not just by money, but also by power — and soon gives up on the great struggle of limiting government and protecting and establishing our liberties. With Congress and the presidency continually re-ploughing their big-government ruts, and the judges on the Supreme Court avoiding the central ideas of the original compact amongst the states, the time for the states themselves to take charge, demanding fundamental change, is now.
Some of the states are doing this in the legislatures, through the standard workings of republican, representative government — with ample citizen agitation. Others are doing it at the grassroots level, via citizen initiative and referendum.
Within the last several years, the states have stood up to Congress and the federal government on matters of health care reform, medicinal and recreational drug use regulation, and, yes, on gay marriage. In all of these cases, it has been the federal government and its laws that have stood in the way of what many American voters now see as progress.
Unfortunately, folks in the federal government dont like to be crossed. Previous state rebellions, particularly regarding legislative term limits, have been squashed by the courts, courts that seem overly fond of the Supremacy Clause (which should be irrelevant, by the way, in any case where the federal government is behaving unconstitutionally), and of deference to Congresss ability to make law. If Congress enacted it, and a president signed it, whats your complaint?
Unless some specified right has been abridged.
That is the one thing we have: the Bill of Rights, and the amendments that follow. But the Supreme Court has been awfully choosey about which rights to consider, and which to ignore. Take the Ninth and Tenth Amendments. The great and ignored Ninth asserts that the people retain rights not enumerated in the Bill of Rights, essentially establishing a political order of Rights first and Unenumerated/Powers second and Enumerated. The Tenth defends the unenumerated powers of the states themselves, limiting the supremacy of the federal government only to its small set of enumerated and quite explicit tasks.
It is obvious that we do not live in a legal order in which the Ninth or the Tenth Amendments mean much of anything. They are almost never cited by the Supreme Courts. And, indeed, until recently one could almost be forgiven if one ignored the states entirely, and saw just the Leviathan of the federal government pitted against the citizens, for whom the Supreme Court exercised its authority by concentrating on a few enumerated rights in the First, Fourth, and Fifth Amendments, by way of the 13th and 14th. (Many thanks for recognizing those, of course.)
Now things are changing. The states are ahead of the curve, challenging obviously unconstitutional drug regulations with first medical marijuana initiatives in a dozen or so states, and now even two states with recreational marijuana legalization.
Obamacare, a typically intrusive and ungainly congressional concoction foisted on America by a political party that gained the much-sought-for mandate by merely not being the political party previously in power, and similarly corrupting. By legislative action in the states, the insistence of state governors, and led by citizen initiatives, this monstrosity is in the process being fought in the states by law. Meanwhile, a divided Congress remains legislatively stymied.
There is enough conflict and disagreement these days to inspire many stories. But surely this new story — the people aligned with the states working against the federal Leviathan — deserves more attention, and more thought.
More of a muddle is the gay marriage issue. On this, more than many others, whats progress to one group is declension to another, and though voters tend to be more responsible and freedom-minded when voting directly for ballot measures (we would have no term limit or tax-and-spending limitation movements without the initiative), on gay marriage citizens have recently voted in or approved such measures, but in California, with Prop 8, and in more than thirty state ballot contests in a row before the last election voters opted to prohibit it.
Californias Proposition 8 was challenged on constitutional grounds, which the Supreme Court didnt settle in a way that really mattered to citizens. Due process? Equal protection? The privileges and immunities that the people retain via the Ninth Amendment? These proved tangential — to the court. Instead, a one-vote majority including both Justices Ginsberg and Scalia found an excuse to throw out the appeal on grounds of standing. Citizens do not have standing to sue to defend their own initiatives.
Thats an indirect ruling, but it also serves as a direct attack on the final check on government power, a check gaining importance with each usurpation by Congress: the initiative and referendum rights in 26 states and a majority of U.S. cities.
Californias attorney general and governor had refused to appeal the federal district court decision striking down Prop 8, leaving only the citizens behind the ballot measure as litigants. The California Supreme Court certified to the Ninth Circuit that the sponsors of the initiative amendment were official state agents in the proceeding, but the High Court ruled they had no such standing and the voter-enacted law could essentially be deep-sixed by state officials declining to do their duty.
Justice Kennedy, in dissent, pinpoints the default: the Court fails to grasp or accept . . . the basic premise of the initiative process . . . The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around.
The other decision favoring gay marriage came by way of a New York tax case. It nullified the Defense of Marriage Act, which Bill Clinton signed into law. DOMA was an attempt similar to Prop 8, refusing to define marriage as anything but between a man and a woman. The Supreme Court Justice I most admire, Clarence Thomas, sided with Justice Scalia, both of whom trampled on my basic view of government: of citizens having rights that trump government, that states have powers that trump the federal government, and that the federal governments supremacy only pertains to a few issues, carefully specified by the Constitution of the United States.
We live in a time of flux, of struggle. The Supreme Court uneasily rides herd over the compact that holds us together, and does so with inconsistent principles, and only by ignoring important principles that were once supreme, but now lie mostly abandoned (though, not forgotten).
Todays story is not of a few good guys and many bad guys. The majority often errs in its reasoning as often as the minority, in court cases.
Ultimately, its up to citizens in our cities, counties and states to re-establish a truly limited-government, constitutional order. The folks in Washington wont do it. [further reading]
June 30, 2013
This column first appeared on Townhall.com.