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Tuesday, December 18, 2012

Original Intent and Constitutional Law

By Douglas V. Gibbs

Yesterday, a listener of my KCAA radio program contacted me, and we discussed Constitutional Law.  Case Law is the foundation of Constitutional Law and it is based on the premise that the courts have the authority to interpret the Constitution.  The listener said he wants to call into my show more often so that he can try to stump me on Constitutional Law.

The assumption is he wants to name cases to see if I know what they were about, and how much I know about the ruling opinions of the involved justices.  However, I will not be able to answer his questions for him the way he wants because the very premise of the questions are flawed.  My angle will be regarding, after I discover the basis of the case, and how the judges ruled, if the court got it right in relation to the Constitution.

During the Constitutional Convention of 1787 many of the delegates present argued that there should not be a federal court system.  The States already had established systems of justice.  The judicial needs of the States were already being met by the State judiciaries.

Upon further discussion, the need for a federal court system won out, but not in the form we see the Justice System today.  The federal courts were established for the purpose of only handling cases that fell within the authorities of the federal government, as per the Constitution.  As 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."  Often, this meant to act as a mediator between the States in quarrels over various issues (such as commerce), cases regarding federal jurisdictions such as districts, territories, or on the Seas, or cases involving international interaction (as in the case of treaties).

You will notice that the language of Article III, Section 2 is similar to the language used in Article VI (Supremacy Clause).  Article VI (Clause 2) reads, "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

According to Article VI, to be the supreme law of the land, something must meet one of three criteria.  Either it must be this Constitution, Laws of the United States made in pursuance of the Constitution, and all treaties made.  The authorities of the Judicial Branch, in Article III, are limited to the same: Cases arising under this Constitution, the laws of the United States (which must be made in pursuance of the Constitution to be valid constitutional federal laws according to Article VI), and all treaties made.  The federal court system, then, cannot take cases that are outside the Constitution, regarding unconstitutional federal laws, and of cases that have nothing to do with treaties.  For example, cases regarding State issues, which do not fall within the authorities of the federal government as per the U.S. Constitution, cannot be heard by the federal courts.  Proposition 8 in California is an example.  Marriage is a State issue, therefore, the federal courts were not constitutionally authorized to hear the case.

Cases regarding laws that have been made at the federal level that are not constitutional is not within their jurisdiction, either.  This is why the States taking Obamacare all the way to the Supreme Court was such a waste of taxpayer money.  The courts have no authority to determine if the law is Constitutional because the courts are not given the power of judicial review by the Constitution. The federal courts gave themselves that power in 1803, Marbury v. Madison.  The final arbiters of the Constitution are not the courts, but the States.  The States that sued the federal government, and trusted the federal government's courts with the case, should have saved the taxpayer's money, and simply nullified.

Case law uses precedent to create a web of rulings that can pretty much support anything if you look hard enough. The courts have used case law to usurp the Constitution, making up their own interpretations as they go along.  This is why the federal judicial branch was supposed to be the weakest of the three branches.  The founders knew of the tendency of judges to legislate from the bench (in direct violation of Article I, Section 1, which gives all legislative powers to the Congress), and knew that ultimately the courts would collude with another branch to create an oligarchy in the United States.

Sure, every once in a while the courts get their opinions of the Constitution correct, and their opinions can be very important in the debate over various legislation, but the courts do not have the final word, and they legally are not supposed to be able to strike down law, or shape our system of laws.  The courts are there to apply the law as it exists to the cases.  If the law is unjust, or unconstitutional, it is up to the legislative branch to change it, the people to put in the right people to repeal it or modify it, or for the State legislatures to nullify it.

That said, Mr. Long, call in and ask away.

-- Political Pistachio Conservative News and Commentary

1 comment:

Anonymous said...


Well said. I would add that the States are the parent, and the Federal Government is the child. More like unruly triplets. Imagine one triplet (Executive Branch) who disobeys the Parent (States - collectively) then the Parent asks another triplet (Supreme Court) to rule on the other child's behavior! The problem we face today is that the States don't realize 'who they are'. Just like it took 3/4ths of the States to create the Federal Government. Today, the same number (3/4ths) of the States trump the Federal Government. Nullification is right and just, however, it cannot be the 'end', it must be rather a means to an end, where 3/4ths of the States get together to reign in the unruly triplets they created in 1787. The States created the Federal Government - so obviously they still trump the Federal Government.