So, is that law constitutional? Most people seem to believe that it’s up to the Supreme Court to decide and that’s final. Is it? President Lincoln obviously didn’t think so, as expressed during his first inaugural address in 1861:
“…the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” [Emphasis mine]Think about it. All branches of government; the legislative, executive, and judicial; take an oath before starting their jobs. Nowhere in the oath does it say that they will protect the land of these United States. Nowhere in the oath does it say they will protect you, me, or the people as a whole. Nowhere in the oath does it say that they will provide for anyone. What they pledge is to “protect and defend the Constitution of the United States.” The President’s adds “preserve” to the beginning of that, and the Supreme Court’s variant “will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States.”
So how should this play out? Well, Congress should not pass any law that is not constitutional; but if they do, then the President is the next line of defense with his veto power; and should that fail, the Supreme Court is generally recognized as the last bulwark. Sadly, history tells us that this is not always enough, as even the Supreme Court will be on the wrong side, as it was during the infamous Dred Scott case (what Lincoln’s quote targeted) and most recently with National Federation of Independent Business v. Kathleen Sebelius, Secretary of Health and Human Services (the Affordable Care Act; and the irony is evident if you read the opinion of the court).
One of the great things about our Constitution is that its makers foresaw such events through their own knowledge of history, and built into its foundation the mechanisms to keep its pages standing. This is why we have terms of office (the Supreme Courts is simply during “good Behaviour [sic]”), and modes of removal that allow us to oust those passing or supporting laws in violation thereof (yes, even Supreme Court judges can be impeached). The new representatives, president, or jurors can then make changes to the laws to align them with our Constitution or outright abolish them. This is only way most people are aware of to control our governmental overreach, and there is yet another.
People are often shocked to hear that there is a way for “We the People” to go completely around Congress, the President, and the Supreme Court, to pass amendments to the Constitution…but it’s true! It is found just after the “or” in Article V and reads, “on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which…shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths Thereof.” This can be used to place needed restrictions upon the Washington establishment (we know they wouldn’t do that on their own), to curtail certain laws, or strip deceptive ways of passing laws. There is no need of suggesting the use of this power to extend the powers of government, because they are already doing this in spite of the Constitution.
These modes of change do take time, yet they also answer our question: Who makes the final determination on the constitutionality of a law? It is not the lawmakers. It is not the enforcer. Nor the jurors. It is us! Are we willing to accept such responsibility?!
ML
A great source of information on this is a book by Mark Levin called “The Liberty Amendments,” which not only discusses this in much greater detail, it gives historical examples and reference, and it even has 10 suggestions for amendments. His first suggestion, term limits, is a perfect example for utilizing the Constitution’s Article V. Does anyone believe today’s congress would ever pass a law or amendment limiting their terms?//
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