Sunday, July 03, 2011

Myth #14: The Courts Are The Check Against Congress

This is the Fourteenth Myth in the series: 25 Myths of the U.S. Constitution.

Note: These articles later were updated and combined into my first book: 25 Myths of the United States Constitution.

By Douglas V. Gibbs

Our government is filled with checks and balances. That is what makes this system of government such a grand thing. However, one presumed check was not originally intended, and through a series of historical rulings, amendments, and misinformation, it has come to be believed that the courts are the check against Congress. However, there is no place in the Constitution that gives the courts this authority, and interestingly enough the roots of this myth can be found in the courts themselves, and the push for democracy by the progressives.

The best way to understand why the courts having the power to check the Congress is unconstitutional, and is not the originally intended way to go about things, it is important to understand how it was supposed to be in the first place. To do this, we must understand the originally intended dynamics of the American form of government - and to do that, we must go back in time... all the way back to the 18th Century.

The United States was a union of sovereign states that decided the confederate form of government they had been existing under through the Articles of Confederation was too weak of a government. However, any central government with too much power was also a concern, so the possibility of forming a federal government with enough power to protect, preserve and promote the union was something the Americans felt should be done with great care, and with many restraints upon this new central government. State Sovereignty must be protected.

Before the U.S. Constitution was written the States held all of the authorities for all issues. Each State was autonomous, and expected the new federal government to abide by that fact. The States, in order to protect their sovereignty, expected to be among the chief checks against the federal government, and to do this, they demanded representation in the new government.

The U.S. Senate was that representation. The Senators were appointed by the State Legislatures, and the States were given equal suffrage in the Senate so as to protect the small states from the potential tyranny of the more populous states.

As the voice of the States, the U.S. Senate served as an integral part of the checks and balances against the federal government, and more specifically, the executive branch. The U.S. Senate served as a State backed check against the U.S. House of Representatives, and the voice of the people through the House served as a check against the U.S. Senate. The States, nor the people, could do anything without the okay of the other.

Together, they served as a check against each other, the executive branch, and the judiciary.

The 17th Amendment changed all that by changing the election of U.S. Senators from appointment by the State legislatures to the popular vote of the people. This one simple amendment changed the dynamics of our governmental system, and took away the voice of the States from the legislative branch. State representation in the federal government was no more.

With both houses of Congress now acting as a voice of the people, the check against Congress that had been in place when the States and the People checked each other, was gone. Both Houses, as the voice of the people, would do as they pleased without fear that the State legislatures may disagree. Collusion between the legislative branch and the executive branch became a real possibility.

Long before the 17th Amendment, the steps to seize for the judicial branch more power than originally intended had already been set in motion, so when the 17th Amendment was ratified, the courts stepped in to fill the void, and become the check against the Congress. The problem is, the courts were never granted that authority. They took it upon themselves, further creating the judicial leviathan that had been growing ever more powerful ever since Marbury v. Madison in 1803, when the courts stole the authority of judicial review.

The Congress used to be the check against the judicial branch, as characterized by the passage of the 11th Amendment when the Congress took away some of the court's authorities. With the passage of time, through court rulings and misinformation, the courts changed the dynamics of government, has placed themselves higher than the other branches, proclaimed themselves to be the primary check against Congress, and the people have come to believe the accompanying propaganda that supports such a ridiculous belief.

The courts are not supposed to be the check against Congress. Congress is supposed to be checked by the two very different representations by the people and the States.

The way to correct this problem in our system of governance is to repeal the 17th Amendment, and return to the States their representation in the U.S. Senate.

-- Political Pistachio Conservative News and Commentary


kris said...

You're right. Congress can pass a Bill which the President signs into law allowing unfettered FBI surveillance on anyone anywhere anytime and the courts have no role in reviewing the constitutionality of the same: were stuck with a unconstitutional Police state.

In fact, Congress can pass & President can sign into law requirement that all little girls must wear one red shoe at all times until they are 18: and, in your world, this cannot be challenged in court- despite the broad powers given to SCOTUS, by the constitution to hear it.

Douglas V. Gibbs said...

You put too much faith in the courts. What keeps them from creating a police state through judicial means? My point is that the States and the People checked each other, and the likelihood of collusion before the 17th Amendment was less likely because of that set-up. The courts, the founders believed, could not be trusted, and were not granted the authorities you wish to give it. Congress is less likely, if the dynamics of government was still as originally intended with the States having representation, to become tyrannical than a bunch of self-righteous judges who think they are somehow above the rest of society. In fact, the original 13th Amendment went so far (and the lawyers and judges made sure it disappeared from the books) as to disallow titles of preference, which would include "esquire" and "your honor."

You put way too much faith in the courts, who are just as fallible, if not more so. The judiciary cannot be trusted, and have overstepped their authorities. Your fear of a Congress acting tyrannical has resulted in giving the courts too much power so that they can act tyrannical...and they do.

Anonymous said...

One prime example of the Supreme Court acting tyrannical is their ruling in Cooper vs. Aaron that nullification by the States is somehow unconstitutional. Combined with the 17th Amendment the States have all essentially lost all of their voice.