Is the Supreme Court Supreme?
16. Jul, 2009 
18 Comments
by David Gordon, Mises.org
[Courts and Congress: America's Unwritten Constitution. By William J. Quirk. Transaction Publishers, 2008. Xviii + 312 pages.]
Courts and Congress defends a revolutionary thesis. If asked, who has the final say in our government on the meaning of the Constitution, most people would say, the Supreme Court. The Court itself agrees: in the famous Planned Parenthood v. Casey (1992) decision, it declared that it could not consider reversing Roe v. Wade (1973), because the American people had come to look to the Court as their guide.
William Quirk, one of the most original Constitutional theorists of our time, challenges this view. No, he does not challenge judicial review, the power of the Court to find laws unconstitutional: this he finds solidly based. He criticizes the Court for abuses of interpretation; but so long as the Court sticks to the language of the document, all is well.
So far, you may ask, what is original about that? Do not many other critics of the Court attack its at-times-bizarre interpretive methods? Quirk’s originality rests in his taking literally, and emphasizing, a part of the Constitution that most writers ignore. According to Article III, Section 2, the jurisdiction of the Supreme Court lies almost totally up to Congress. The Court has original jurisdiction only in cases involving disputes among the states and in cases where foreign diplomats are a party. Its appellate jurisdiction is subject to whatever “rules and exceptions” Congress chooses to make. So far as lower federal courts are concerned, they stand completely at the mercy of Congress. If it wished to do so, Congress could abolish the lower federal courts altogether.
Thus, if Congress does not like the decision of the Court in Roe v Wade and its successor cases, it can take away the right of the Court to hear any cases on appeal that involve abortion. True enough, that would still leave the decision on the books, and it would presumably be binding on other courts; but in practice, it might be difficult to sustain it. If a court decided to allow restrictions on Roe contrary to the mandate of the Supreme Court, this ruling could not then be appealed to that court for reversal. Congress might, by getting rid of the federal courts completely, leave abortion entirely in the hands of the state courts. In like fashion, of course, for other controversial areas. Quirk points out that until 1875, the lower federal courts did not have the right to hear appeals from state court decisions about federal law. By using its Article III powers, Congress could radically reshape constitutional law.
One might at first think that Quirk has made a mistake. Is he not blowing out of proportion a passage that really deals only with setting up rules of procedure for the federal courts? History buffs will be aware of the famous case of ex parte McCardle (1868), in which the Reconstruction Congress withdrew the right of the Court to hear a case, while that very case was pending before the Court; but is not this use of Article III an aberration? Surely, like the famous Tenure of Office Act, this was an example of how extreme that Congress was, rather than a guide to sound constitutional practice.
To those inclined to think so, the ruling of the Court in McCardle will come as a surprise. It fully recognized the right of Congress to withdraw its jurisdiction. The Court said,
We are not at liberty to inquire into the motives of the legislature. We can only examine its powers under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words… It is quite clear, therefore, that this court cannot proceed to pass judgment in this case, for it no longer has jurisdiction of the appeal; and the judicial duty is not less fully performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer. (pp. 289–90)
It is Quirk’s great merit to show that Congress’s power to limit the federal courts is a recurring theme in American history. Quirk is a Jeffersonian; and he points out that Jefferson and his followers feared the potential for abuse in federal judicial power and acted to curb it. The Federalists had secured the appointment of a number of Federalist judges in the Judiciary Act of 1801.
The Republicans replied to the Judiciary Act of 1801 by repealing it in the Judiciary Act of 1802. The 1802 act repealed “federal question” jurisdiction. It stripped the new judges of their offices. (p. 178)
Congressional power under Article III is far from a theoretical question. Congress has in fact acted to limit the federal courts in several notable instances. By the early 1930s, a majority of Congress had come to think that the courts often acted in an improperly antilabor way by issuing injunctions that forbade unions to strike. Employers who claimed that unions were a threat to their property did not have to go through the long and involved process of a civil suit. Once an injunction against a union had been issued, the court could instead hold the union in contempt and inflict civil and criminal penalties. Accordingly, in the Norris-LaGuardia Act (continually misspelled in the book), Congress, exercising its Article III authority, took away the power of federal courts to issue injunctions in labor cases. An interesting question, not discussed in the book, is why Franklin Roosevelt did not resort to this tactic in his disputes with the Court.
Again, in the 1950s, there was a Congressional outcry against several Supreme Court decisions that were deemed unduly protective of the civil liberties of members of the Communist Party. Senator William Jenner introduced a bill to withdraw the appellate jurisdiction of the Court in such cases; and although the measure failed to pass, its constitutionality was not seriously challenged. Opponents, such as Senator Jacob Javits of New York, claimed rather that the bill was unwise. One eminent law professor, Arthur J. Freund, who opposed the Jenner Bill, responded in this way when asked whether it was constitutional to limit the Supreme Court’s jurisdiction: “You can’t challenge the constitutionality of a constitutional provision” (p. 234).
The famous Engel v. Vitale (1962) decision, which held recitation by a public school teacher of a prayer in class to be unconstitutional, and the failure of a proposed constitutional amendment to overturn it to gain sufficient votes, aroused Senator Jesse Helms in 1979 to propose a “stripper” bill, as this sort of legislation is called, but it also failed of passage. In a number of instances, though, Congress has in fact stripped the federal courts of jurisdiction, and several such laws remain on the books today.
In recent years, a number of scholars have maintained that the Article III power of Congress is limited and that it cannot, e.g., bring it about that a constitutionally protected right is withdrawn from judicial scrutiny. Supporters of this position can appeal to the weighty authority of Justice Story, who thought that Congress was required to extend the full “judicial power” mentioned in the Constitution to the federal courts. Quirk successfully shows, though, that there is an extremely strong case that Congress does have the power to strip the federal courts of jurisdiction.
If Congress has the power, should it use it? Would not doing so remove a necessary check on Congress? Quirk does not think so. In his view, again a Jeffersonian one, Congress is the dominant branch of the American government; unlike the courts, it is directly subject to the will of the people. If one objects that majority rule can deprive a minority of its rights, Quirk responds that rights are safer with the people than with unelected courts. Murray Rothbard, by the way, thought much the same, especially in his later years.
To the argument that stripper bills would introduce chaos into the judicial system, since without appeal to a highest court, there would be no guarantee of uniform rulings in different jurisdictions, Quirk again has an answer. Is not experimentation desirable? Why should we not have varying rules, suited to local conditions?
If Congress has such power over the Supreme Court, why is it reluctant to use it when the Court abuses the Constitution? Quirk locates the answer in what he terms The Happy Convention. The principal aim of most members of Congress is to secure reelection to office. In order to do this, Congress avoids controversial moral and cultural issues whenever possible. Far better to have the Supreme Court, an unelected body that voters cannot unseat, take the blame for unpopular decisions.
Similarly, the Constitution clearly gives Congress the sole power to declare war. But, wishing to avoid blame should a war go badly, Congress has abdicated its power to the president. It is better, Congress thinks, for him to take the blame for Vietnam or Iraq. By its own lights, the Congressional policy has been remarkably successful. Most incumbents are reelected. The cost, though, is a severe one. Our actual Constitution, one of congressional preeminence, has been replaced by the Happy Convention, in which the president and Supreme Court have supplanted Congress. No Jeffersonian can accept this.
David Gordon covers new books in economics, politics, philosophy, and law for The Mises Review, the quarterly review of literature in the social sciences, published since 1995 by the Mises Institute. He is author of The Essential Rothbard, available in the Mises Store.
This review originally appeared in The Mises Review, Fall 2008.
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Decisions of courts are the law of the case, not the law of the land. No one who is not a party to the suit need obey its mandates. If a State wants to abolish abortion, if it was not party to Rowe v. Wade, it is free to do so. Not until that State is specifically enjoined in a suite to which it is a party is it even theoretically compelled to obey Rowe v. Wade. This is necessary because a State’s statute banning elective abortion may be materially different than the one adjudicated in Rowe v. Wade. Moreover, there are always new facts and legal arguments that may arise. So, anytime you hear that something is unconstitutional or prohibited by this or that case, remember that this is totally UNTRUE.
I do not believe the States need to wait for Congress to reign in an out of control judiciary. The States can and should over rule usurpatious federal decisional law by conducting legislative hearings concerning the original intent of provisions of the Constitution and Amendments. In the case mentioned (Rowe v. Wade) the legislature should have hearings regarding the orginal intent of the 4th and 10th Amendments, since these are the provisions relied upon for finding an alleged “right of privacy” that prevents the State from prohibiting elective abortion. The resultant legislative findings and declarations of fact should be emodied in a preamble to legislation over ruling the court’s decision. This would be a case of “origianl intent” versus “judicial activisim.” Clearly, the State legislature would win. There is no basis upon which its findings could be overturned, provided they were not procedurally or substantively defective.
PHL – you’re right that court decisions are supposed to apply to the case only. But, the use of precedents, in my opinion, has become so pervasive that any ruling seemingly becomes law for all people in all situations.
I think this article misses addressing that, but still shows how the court’s power can be restrained. I’m not holding my breath waiting for federal politicians to do anything that would limit their own powers, though.
I have to say, that with all that is going on in the political world these days – the economy, the probable impending collapse of the dollar, hate-crimes legislation for pedophiles and sexual deviates, Cap & Trade, nationalized health care, nationalization of insurance, banks, and auto manufacturers, stated plans for gun control, Homeland Security, PASS ID w/ RFID no less, a man in the White House who refuses to provide any sort of conclusive evidence he is a natural born citizen, and who has obvious Islamic background and sympathies, etc, etc, etc, – with all this going on, I must say that I have come to appreicate why the Second Amendment guaranteed the States the right to have a militia. The Constitution prohibits “Standing Armies” but we have had them for decades. Moreover, with the federalization of the militia by the Army National Guard, we are virtually helpless should this or any administration make a move to suspend the Constitution, impose martial law, and set themselves up as dictators for life. We REALLY need the States to get smart and reestablish the militia in addition to or in place of the Army National Guard. “A well regulated be NECESSARY for the security of a free a State…” Not “optional” mind you, “NECESSARY.” The article below is a Harvard Law Review and is a must read for anyone wanting to understand why this provision was placed in our Constitution.
http://www.guncite.com/journals/hardcit.html
PHL, the militia is every man in the nation, every man is expected to have well cared for and ready weapons in his home and be ready to defend his home and those of his neighbors against all aggression. The militia is NOT the National Guard, it is you and me and every other sovereign individual in this country.
Yes, I know it is not the U.S. Army National Guard. That is precisely the point! I recently visited a National Guard station where I live. Obama’s picture was displayed at the head of the chain of command. THAT is exactly the reason why the States need to reinstitute the militia. Not the “unorganized” militia to which you refer and which includes all males from 17-45 years of age, and retired milititary to the age of 60, but the organized or special militia, like State troopers, whose job it is specifically to be a military force to defend in the event of invasion, etc. In other words, a fighting force that is under the exclusive control of the State, not the federal government. If Obama were to attempt to impose martial law and a dictatorship right now, we would be essentially defenseless against the “standing armies” that litter the country side.
Those are Esculent posts – PHL
This federal government, and its judiciary have proven that they themselves are, beyond any reasonable doubt, no longer accountable to this this United States Constitution.
There was definitely a time when the suggestion that the government was anything less than a benevolent uncle who would never deliberately do anything to harm us would have been met with fierce opposition and deemed “unpatriotic.” But times have changed and so has the government. Sad to say, but the federal government is quickly becoming “public enemy No. 1.” I say that as a very patriotic, law abiding, tax paying, church-going minister and father of six. Today, the greatest threat to liberty and the “American way of life” is the federal government, not Islamic extremists, not International Communism, but an over-reaching government that re-writes the Constitution everytime it gets the whim so that we are no longer a government of laws, but a government of men.
Edwin Vieira’s “Homeland Security: For What and For Whom” says that the establishment foresaw the coming economic collapse long ago and put the Patriot Act im place to control civil unrest in the American population when the bottom drops out. He wrote the article in 2005, saying that the speed with which they were putting Homeland Security in place betrayed the imminence of the collapse. Four years later here we are!
I for one believe that Washington is beyond reform and have taken to praying that one or more States will extricate themselves from the coming police state by seceding from the Union, or at least making a sufficiently serious threat that Washington finally wises up and changes its oppressive and lawless pattern. Until then, I find my normal interests and pursuits, to say nothing of sleep patterns, are being disrupted by anxiety for the future. I am hoping things return to normal someday, but I think we have crossed our proverbial Rubicon and that Caesar’s war against the Republic and Senate has already begun. If Pompey wins, the Republic will continue. If Pompey falls at Phasalia…Hail Caesar, dictator for life.
Considering that all three branches of government severely lack credibility,
All this article does is point out the obvious with respect to the Judicial branch.. even though congress has the authority to limit judicial powers.. One can hardly put much faith in congress to do anything honorable.
Larry, I also don’t expect much from Congress – but it’s still important for us to know how things are supposed to be run – that way if we can ever turn this mess around, people will know what’s actually in the constitution.
I think if we are to fix the judicial branch, we must keep congresses politically out of it, instead we should make them accountable to the Judicial Branches of the 50 states in a way not unlike congress is accountable to the people directly.
We must preserve the “independents” of the judiciary, while forcing them to acknowledge and enforce the limits of federal power. Preferentially in favor of the people and states from which that power was ceded in the first place.
I think the only logical way to do that is to make the Federal judiciary somehow substitutable to the justices of the several States on federal constitutional matters.
There must be some sort of State appointed justice interest with the inherit interest of protecting their own state power able to challenge and overrule the federal courts, in balance.
That way there can be a balance between the 2 with regard to the interpretation of the U.S. Constitution.
Get rid of the life time appointments that these people enjoy. Make it an elected office. At least that way there is a chance to kick them out of office.
If they were elected, the law might be even more politicized than it is. The idea of having judges appointed for life is that they should be immune to political pressure and able to make unpopular and hard decisions without fear of retaliation. Maybe we should do like the Catholic church, which traditionally only appoints “old” popes so that a rogue pope cannot stay long in office. If we appointed only judges who were in the late sixties we would only be stuck with them for a few years!
But seriously. There are a couple remedies to our problem of judical activism. One would be an amendment allowing appeals or writs of certiorari to the Senate from U.S. (not State) Courts. This is the system in England and it works well. When their high court recently ignored established law and precident by allowing the arrest and extradition of foreign emassaries with political immunity to answer charges in foreign countries (Pinochet), the House of Lords took the case on appeal and reversed. By allowing the Senate to be the court of last resort, would allow the people’s elected representatives to weigh-in in extraordinary cases, hopefully to correct judical activism (but with no guarantee).
Another remedy that might be employed in place of or in addition to the above, is to have an Amendment that makes “original intent” the only enforceable interpretative principle of federal law and the Constitution. This would immediately undo 100 yeras of bad case law under the 14th Amendment and Commerce Clause. An amemdment like this might also give power to the States to nullify any decision its legislature finds, after hearing and evidence, to depart from the original intent of the Constitution as a futher inducement for the federal judiciary to adher to the letter and intent of the law, rather than re-writing it whenever it suits thier fancy.
PHL,
You don’t think Supreme court justices aren’t overly politicized now? I’m sure that Sotomayor has a long and verifiable record of supporting the Democrats agenda. these conformation hearings are a joke. She pretends to be unbiased, and Congress pretends to believe her, congress is just going through the motions to prop up the fasaud. And she has her game face on for the TV. Somebody has to call this what it really is, and stop pretending that any of this has credibility.
No, I agree it is politicized. But if the justices were elective offices they would become crass politicians and lose all pretense of being judges. Original Intent is the only real solution, but without a Convention to propose Amendments, don’t look for anything good to happen anytime soon.
I don’t think there is anyway we can balance(correct) the federal judiciary unless we make them accountable to the power interest of the States in some way.
I think the best way to do that and keep them non-political (interested in the law not the mob politics of the day) is to make them accountable to the separate State Justice systems which by in large have the same political power interest as State employees as the federal judges have as Federal employees.
I think the only way we can hope to maintain balance and thus a fair and free Constitution is by setting apposing interest against each other. But the ultimate preference should be given to the States because if all else fails the more local the government the more representative it is of the will of the people, and the easier it is to deal with when it goes south. (We can move, AND have a vote many times more powerful).
Liberty is maintained thou competition not monopoly, the Federal court find itself alone, the final judge, of the meaning of the law, this is not only untenable given the nature of their own position in a federal system but it is unbalanced. Repeal the 14th, 16th and 17th amendments, but also create a new system by which the Supreme courts of the several states may by majority overrule the dictates of the U.S. Supreme Court, in the interpretations of the powers they ceded to the federal government.
I don’t think there is anyway we can balance and correct the federal judiciary unless we make them accountable to the power interest of the States in some way.
I think the best way to do that and keep them non-political (interested in the law not the mob politics of the day) is to make them accountable to the separate State Justice systems which by in large have the same political power interest as State employees as the federal judges have as Federal employees.
I think the only way we can hope to maintain balance and thus a fair and free Constitution is by setting apposing interest against each other. But the ultimate preference should be given to the States because if all else fails the more local the government the more representative it is of the will of the people, and the easier it is to deal with when it goes south. (We can move, AND have a vote many times more powerful).
Liberty is maintained only thou competition not monopoly, the Federal court find itself alone, the final judge, of the meaning of the law, this is not only untenable given the nature of their own position in a federal system but it is unbalanced. Repeal the 14th, 16th and 17th amendments, but also create a new system by which the Supreme courts of the several states may by majority overrule the dictates of the U.S. Supreme Court, in the interpretations of the powers they ceded to the federal government.
This is a little off topic, but since the topic was mentioned, an smart people should judge politicians and nominees exclusively by their records. What a politician or a nominee says while campaigning (I.E. Obama) or at a hearing (I.E. Sotomayor) should only be used to determine their honesty. If what they say isn’t supported their record, their lying!
Now if a major networks wanted to make a huge contribution to the public good AND have a popular new TV show, they’d have a reality TV / game show with politicians. You’d have a politician answer a question, have a group of normal everyday citizens “grade” the answer on its sincerity and truthfulness, then show the truth about the politician based on his or her own record. After a series of rounds the show would then rank a politician against his or her peers as either an upstanding honest American, or as devious liar!
US Supreme court is a little scary. Rulings such as Americans are not entitled to Social Security, even though we had no choice but to pay into it, unless we wanted to go to jail, is disheartening. I really don’t think that is what our founding fathers had in mind.