Leave the Judiciary Alone

Existing remedies for judicial overreaching will suit us just fine.

© St. Louis Post-Dispatch
Tad Armstrong

Article VI of the United States Constitution states: “…This Constitution, and the laws of the United States which shall be made in pursuance thereof…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. The senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution…”

The Framers left no doubt that the Constitution was to be honored as the supreme rule of law in this nation. That means, of course, that if and when any state constitution or legislation or federal legislation conflicts with the Constitution, the founding document takes precedence. In addition, all judges, legislators and executive officers, be they in the federal or state system, are bound by oath to support the Constitution.

Article II requires a newly elected President to take a slightly different oath as follows: “I do solemnly swear…that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Whether it be a duty to “support” or to “preserve, protect and defend,” the oath to do either is, or should be, a deadly serious one. When legislators, judges, governors or presidents fail to respect the limitations imposed by the will of the people through our founding document, in my mind, they commit a disgraceful act of desecration. They dishonor over one million of our military who have fought to attain, and then preserve, our freedoms, and they dishonor those currently fighting and dying to preserve our constitutional principles.

I distinctly remember a private discussion I had with a local alderman over 30 years ago, just prior to a vote being taken on what I believed to be an unconstitutional city ordinance. He agreed, but said he would be voting in favor of the proposed law because he wanted to get re-elected. If that is the modus operandi of our legislators, judges and presidents, and we permit it to continue, then it is “We, the people” who will have trampled on the graves of our benefactors.

Since the days of Supreme Court Chief Justice John Marshall and the 1803 celebrated case of Marbury v. Madison, the Supreme Court has been the final arbiter of whether the judicial, legislative or executive branches of government have exceeded their constitutional bounds and, with rare exception, our nation has respected that power.

However, several Republican candidates hoping to occupy the White House soon have other ideas regarding the power of the judiciary. Texas Governor Rick Perry favors term limits for Supreme Court justices, as opposed to their present lifetime appointments. He and others would also consider enabling Congress to override Supreme Court decisions by a two-thirds vote. Representative Michele Bachmann of Minnesota and Ron Paul of Texas would like to limit the types of cases that can be heard by the Court. Former Senator Rick Santorum of Pennsylvania and former House speaker Newt Gingrich would abolish the liberal Ninth Circuit Court of Appeals altogether.

Some of these proposals would require a constitutional amendment, some would not, but, in my humble estimation, all of them are insane.

Lifetime appointment of federal judges is the best curb against corruption and favoritism in the judiciary and it is just ludicrous to believe that these conservatives would give Congress even more power than it has to further corrupt constitutional principles. For example, if the Supreme Court strikes down President Obama’s healthcare legislation, do they really want to give Congress the right to bring it back? And, why would anyone want to eliminate the Ninth Circuit? When their opinions are off base, the Supreme Court reverses and, in the process, establishes solid constitutional precedent they might never have had the opportunity to address otherwise. Additionally, I would think these candidates would be very pleased with many, if not most, of the High Court’s decisions of the past few years.

The answer to a Supreme Court that fails to honor its collective oath to support the Constitution is an educated electorate – educated on our founding principles so that we elect presidents who will honor them and who will appoint justices who will honor them. These Republican challenges to judicial power are ill conceived and, hopefully, will not have much traction. Yet, I would vote for any of these candidates over our current President who, in my estimation, has little or no regard for his own constitutional limitations.


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