Does the Supreme Court have no power to rule on the constitutionality of a law passed by Congress?

I often spend a lot of time going back and forth through email with readers and listeners of my programs over issues that concern them. In the case of David, his issue has been the constitutionality of the 16th Amendment, and more specifically, the allowance for the federal government to tax directly without concern regarding apportionment.  His latest email said to me:

Subject: RE: Sixteenth Amendment

Douglas,

So – you are saying that the Supreme Court has no power to rule on the constitutionality of a law passed by Congress?

How about Brown v. Board of Education in which the Supreme Court ruled that “separate but equal” was unconstitutional?

Frankly, I think that your position on the authority of the Supreme Court is unsupportable. And I conclude that you are evading the issue of the true effect of the Sixteenth Amendment (assuming again that it was lawfully ratified) simply because you do not wish to deal with the implications of the truth.

I, for one, prefer to demand the truth.

David

My response was lengthy because I wanted him to truly understand where I stand on the issue.  I said:

David,

Yes, I am saying that the Supreme Court has no power to rule on the constitutionality of a law passed by Congress. They can provide an opinion on the constitutionality, but that opinion is not supposed have any effect on the law itself. It is only an opinion. The dockets to his day begin with the words, "It is in the opinion of the court."  There is no constitutional authority granted to the courts to have this power of judicial review.  In fact, the courts gave themselves that power in an opinion by John Marshall in the 1803 Marbury v. Madison case.  I argued on the air with Dr. Larry Arnn, President of Hillsdale College, over this issue, and he claimed that the power is "implied" in the Constitution.  The concept of "implied powers" is also unconstitutional - invented by Alexander Hamilton as a way to subvert the Constitution so that he may put into place his Bank of the United States.

Remember, the Supreme Court is a part of the federal government, and for them to determine if a law is constitutional, which is to determine if the federal government has a particular authority, is to allow the federal government to choose its authorities for itself.  That is, in my opinion, in complete contrast to the limiting principles championed by the Founding Fathers.

The final arbiter of the Constitution is not the courts, but the States - and ultimately the people, through their States.

The judiciary being taught as the check against Congress has occurred because the true check and balance against Congress has been eliminated.  The original check against Congress was destroyed with the ratification of the 17th Amendment, which changed the appointment of the Senators by the State Legislatures to the vote of the people, introducing a larger dose of democracy to our republic, and introducing ideology to a House of Congress that had previously been only concerned with the interests of the States, and ultimately, State Sovereignty.

The States through the Senate checked the people, and the people through the House of Representatives checked the States (Senate). Together, they checked the executive branch, and the courts.

If you read Madison's Notes on the United States Constitution, the Judicial Branch was almost not created. There was a strong argument in the convention to not create that third branch of government, for the States each already had judiciaries.  Ultimately, the statists won out, pointing out that a federal court would be necessary to mediate disagreements between the States, cases regarding federal properties like the District of Columbia and territories, and so on and so forth.  So, near the end of the convention, it was decided to create the Judicial Branch, but for that branch to be the weakest of the three.  The judges did not like that attitude towards the courts, and worked to strengthen the power of the courts, while also weakening the constitutional philosophies that held that the courts should only apply the law to cases, and not interpret whether or not laws were unjust or constitutionally valid.  The battle for power began early, and as I pointed out earlier in this response, the concept of judicial review came into being as early as 1803.  The result has been a battle for power that has become an expanding court system that has grown more powerful over the years, and now legislates from the bench at will through their rulings.

So, now, I go back to those court opinions you have been referring to regarding the 16th Amendment. Whether they are right or wrong, they hold no power in law.  Personally, I believe the language in the 16th Amendment is clear, ". . . without apportionment among the several States, and without regard to any census or enumeration."  I am not defending the income tax, I am simply recognizing the reality of the language.  However, federal withholding from wages is not constitutional, for the 16th Amendment allows for the Congress to collect taxes on "incomes", and wages are not income.  Wages are a barter. We trade our labor for monetary compensation.  Of course bartering is against the law in the United States. The federal government did that because they realized they could not tax barter.

As for the Brown v. Board of Education case, where the Supreme Court ruled that "separate but equal" was unconstitutional, the courts had every right to that "opinion," but the Congress was the branch that needed to be passing laws supported by the 14th Amendment to enforce the provisions of that article. After all, does not Article I, Section 1 of the United States Constitution grant "all" legislative powers to the Congress?  This means no other branch has the authority to create law, modify law, repeal law, or strike down law.  Those powers belong only to the Congress.

Blessings,

Douglas V. Gibbs

Constitution Radio, 1050 AM

www.politicalpistachio.com

www.douglasvgibbs.com