It is probably safe to say that the Supreme Court of the United States (SCOTUS) has been a major factor in the transformation, not the preservation, of the US Constitution for many years.
During the nine months that were required to convince 9 of the 13 states to ratify the new constitution, Alexander Hamilton attempted to allay the reservations regarding the powers of the proposed SCOTUS. Hamilton explained that, “The judiciary… has no influence of either the sword or the purse, no direction of the strength or of the wealth of the society, and it can take no active resolution whatever”. Further, the duty of the federal courts “must be to declare all acts contrary to the manifest tenor of the Constitution void”. Hamilton maintained that the federal judiciary was designed to protect the people by holding the acts of Congress within the powers enumerated in the Constitution.
In an earlier contribution to the Federalist Papers, James Madison had epitomized the intention, “manifest tenor”, if you will, of the writers of the Constitution. It went like this, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce…. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the State”.
All of these assurances were barely enough to get the people to acquiesce to the ratification. They insisted on having further guarantees against insidious expansion of federal control over the states and the private sector, and that resulted in the rather rapid addition of the first ten amendments to the Constitution. In this case, I emphasize Amendment X. Check it out.
After more than 220 years of SCOTUS “protection”, we look at events of our own day and see some strange things. Nowhere in the Constitution is there a specific power for the federal government to:
- Tell private citizens where they are forbidden to build a home on their own property.
- Tax people of the several states in order to construct a bridge within a city where not even a tortured definition of a “postal road” exists.
- Tax people of the several states to provide financial awards to individuals who meet arbitrarily determined qualifications.
- Compel citizens to purchase specified products.
But all of those things and many more transformations have come to pass.
Most recently, we have witnessed a Chief Justice, when he was with the majority opinion, contend that the SCOTUS must basically restructure a document containing admittedly ambiguous expressions and “more than a few examples of inartful drafting”. With the use of flowery legal language, the CJ essentially proclaimed the courts duty was to examine the context with the view of the good results that were probably intended by the authors.
However, when he was sitting on the losers’ bench two days later, the same Chief Justice declared, “Whether (this legislation) is a good idea is of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be”.
Had Thomas Jefferson not been serving as Minister to France when the members of the Constitutional Convention assembled, perhaps things would have been different. There was no flight scheduled from Paris that year.
Jefferson was extremely disturbed that the three supposedly equal branches of the new government contained one that was composed of a small number of unelected members who could eventually twist the Constitution into “a thing of wax”. He went so far as to write to Judge Spencer Roane, that the Constitution itself would be a felo de se (act of suicide) if the SCOTUS was not subject to checks and balances as were the other two.
No flippancy intended:
Lord… Help us.