Junking Judicial Activism

The New American – As President Trump’s executive order suspending the highly controversial (and highly dangerous) refugee program continues to work its way through the labyrinth of federal courts from one coast to the other, the question at the forefront of nearly every conversation about the subject is, “Is the executive order constitutional?” There is a principle, though, that says if you start by asking the wrong question, you are bound to end up with the wrong answer. The real question that needs to be answered before it affects this and other issues (as it has been doing for over 200 years) is, “Do federal courts (in general) and the Supreme Court (in specific) have the sole authority to interpret the Constitution and decide what is and is not constitutional?”

Case in point: ObamaCare. By overlooking the fundamental question and allowing the erroneous assumption that the Supreme Court is the final arbiter of what the Constitution means, the American people wound up with the wrong answer: that the misnamed and deliberately misguided Patient Protection and Affordable Care Act is constitutional. It is important to remember that the federal courts — Supreme and inferior — are part of the federal government; to accept the idea that they alone have the authority to interpret the Constitution is to allow the federal government of the United States unilateral authority to decide the boundaries of its own authority. Nothing could be further from the mind of the Founding Fathers, as we will see from their own writings later in this article.

The misbegotten notion that the Supreme Court — and by extension the inferior federal courts — has the unquestionable authority to interpret the Constitution (and thereby decide what is and is not constitutional) does not come from the Constitution itself, but from a decision made by — you guessed it — the Supreme Court. This gift from the court to itself dates back to the early days of the Republic. In 1803, while deciding the case Marbury v. Madison, the Supreme Court did not limit itself to deciding merely the case before it, but also whether or not the law in the case — Sec. 13 of the Judiciary Act of 1789 — was constitutional.

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