In the first two parts of the series I looked at Articles I & II of the constitution’s enumerated powers. If you missed one of these, please check it out here and here. We looked at several instances of violations of the limits of power by both the legislature and the executive branches.
This article will address the role of the Supreme Court. Article III, Section 2 states:
“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.”
Let me ask you a question. Do you see any authority or power within these enumerated powers granted to the Supreme Court over state laws?
Look closely, it’s NOT there.
To look where SCOTUS began to get off track we have to go back, way back. However, before we look at some of the cases, we need to look at something courts use called “stare decisis.” One of the most important doctrines in Western law is that of stare decisis, a Latin term of art which means “to stand by decided cases, to uphold precedents, and to maintain former adjudications.” It is intended to save time in court, once a case has been tried then similar cases receive the same results. AND, if a case ends badly, or wrongly, then that mistake is continued, as well.
Judges give edicts (legal decision) and dictum (opinion). We are used to hearing SCOTUS cases having the consenting and dissenting opinions. Stare decisis tends to give great weight to the opinion in the case, often as if it were law. A poorly worded opinion could define a set of legal positions that go beyond the limits of the underlying constitutional laws, and thus the basis for future precedents. Add in the politics of some judges, the desire to legislate from the bench, or “right previous wrongs” delivering social justice, and our judiciary is ripe for abuse just as the other branches.
In 1803, the case of Marbury v. Madison was a simple case that in reality should never have come before the Supreme Court. In essence, the end result establishes the federal government as the final judge of its own power. Of course this was reserved for the states and the people. McCullough v. Maryland established the primacy of the federal government over the states, and the concept of implied federal power.
The Dred Scott decision essentially said blacks were not human. Wickard v. Filburn, which I mentioned in Part 1 permitted the Congress to regulate personal, private, and even trivial behavior. Korematsu v. United States, mentioned in Part 2, allowed FDR to put Japanese Americans in internment camps.
Of course Roe v. Wade determined a right to privacy, and thus abortion, and of course, National Federation of Independent Business v. Sebelius, which permitted the Congress to tax any event or non-event it wishes. I asked about the authority over state law, because of the recent decision regarding gay marriage, Obergefell v. Hodgeswhich, was a decision on a state law and the court’s decision was allowed to become law.
Just as the President cannot write legislation, neither can SCOTUS. Another very important case I mentioned regarding FDR was Helvering v. Davis (1937). Helvering upheld the constitutionality of Social Security on the basis that Congress has a general power to spend on whatever it deems to be in the general welfare. There’s that “Welfare Clause” I mentioned before. Remember, ALL such clauses are still subject to the enumerated powers of each branch. Helvering turned the system of enumerated powers upside down. Congress was to be limited to its delegated powers as we have discussed.
It also gutted the 10th Amendment that gave states power and restricted federal government to its defined roles. Since Helvering congress spending is limitless, blowing up a welfare state and resulting in the behemoth government we have today. Since Helvering, Congress can spend money on anything it wants, facilitating the welfare state and the immense growth of the federal government in the last 80 years.
If I had to make a rough estimate, I’d say about 75% or more of the spending currently done by the federal government relies on this holding in Helvering, making the overwhelming majority of what the federal government does unconstitutional.
No longer is government limited to enumerated powers, it is allowed to do anything that is not banned. Federalism died with Helvering. You might be surprised to learn our constitution, the one many of us carry around in our pocket, is actually 3,000 pages long. This is of course the result of stare decisis and cases such as Helvering.
We run around pulling our hair out while most politicians and judges view us as nuts. Well, excuse me, but we are over $19 trillion in debt, and have well over $100 trillion in unfunded liabilities, all because politicians and judges thought they knew better than the framers of the Constitution. Not only do they think they are sma
rter, but also because they garner their power by redistribution of wealth and the use of regulations to control people and their behavior. We are facing several problems besides the excesses of the government.
In part 4, I’ll address the problems we face in trying to reign in this monster that has become as Dr Frankenstein’s experiment gone mad.