This week there were two major rulings by the Supreme Court that gained national attention. Those of upholding the subsidies for the Affordable Care Act (ACA), and the nationalization of homosexual marriage as a constitutional right. In the former, the majority opinion purports that the wishes of the legislature should be conferred despite the clear language of the law to the contrary, and in the latter, the Court had no authority to rule on gay marriage – or for that matter heterosexual marriage – as it is not a constitutional issue. Apparently none of the justices in the majority read their job description this week.
These Court decisions cast aside any notion of the Constitution and are a culmination of offenses going back to FDR. In most prior cases that have breached the Constitution, there has been some venire of legal reasoning, however, what we have now is a complete disregard for the Constitution without a shade of a reputable legal argument. In fact, in the explanation of the majority opinion on the ACA, Chief Justice Roberts casts away the notion of adjudication, for politics, by saying “in every case we must respect the role of the legislature, and take care not to undo what it has done.”
This puts the Supreme Court in league with the legislative body, which is exactly against the fundamental principle of the Constitution: the separation of power. So now if one political party takes control of the executive and legislative branch, they will find an accepting judiciary to rule as they please.
We discussed this very deterioration of the rule of law in our book, Vigilance The Price of Liberty, with the warning from the Anti-federalists:
In Federalist No. 81, Alexander Hamilton quoted the Anti-federalist objection that a Supreme Court would have “The power of construing laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper especially as its decisions will not be in any manner subject to the revisions or correction of the legislative body...the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.” Hamilton countered this objection by responding, “There is not a syllable in the plan [Constitution] under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution.” Hamilton viewed the Supreme Court simply as a referee to determine an outcome and not an interpretative body that would or could refashion laws as it saw fit…
However, Anti-federalists were correct in their fears. They saw the Supreme Court as supreme, even over Congress, and able to make laws of its own. . . in Anti-federalist No. 82: “This [Supreme] court is to have power to determine in law and equity... is exalted above all other power in the government, subject to no control,” and . . . continued, “They [the Supreme Court] will be able to extend the limits of the general government. Gradually, and by insensible degrees, and to accommodate themselves to the temper of the people.”
Fast forward from 1788 to some 225 years later to the Supreme Court decisions of June 25, 2015 and we find the Anti-federalists prophetically right!
The Supreme Court has the most serious responsibility to be the guardian of the Constitution, and with it, our liberty and prosperity. When justices abandon their duty as a judicial body for that of politics, they become an enemy of the people.