God save the Supreme Court
Our Supreme Court has increasingly made rulings that have had the force of legislation. In doing so it has changed our nation dramatically. It has seemingly become a legislative body. Some of our predecessors saw this day coming.
After our government had been in place for 30 years, Thomas Jefferson in a letter had this to say about the jurisdiction of the Supreme Court:
“You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
An oligarchy is a form of government consisting of a small group which arbitrarily governs the masses. It was one form of government briefly considered when it was determined our form of government would be a republic.
In 1861 President Lincoln tracked the same thought as Jefferson regarding the court: “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 people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
Jefferson evidently saw the emergence of the court in matters of legislation when he wrote: “The germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one.”
How is that for a visionary? Jefferson used the term “irresponsible body” because justices are selected for life and are answerable to no one. They are autonomous.
Jefferson wrote one of the jurists in 1823 the following regarding the principles of interpreting the Constitution. “Carry ourselves back to the time the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or inventing against it, conform to the probable one in which it was passed.”
Jefferson further stated in a letter to William Nicholas in 1803, “The true key for the construction of everything doubtful in a law, is the intent of the law givers.”
This is what has long been called “original understanding.” Today many rulings are based on what is considered an evolving Constitution or the Living Constitution.
What a difference it would have made if the courts had made decisions based on original understanding.
In the cases of the Affordable Care Act, rather than return the bill to Congress, the court acted for Congress. Rather than let states make their own laws regarding marriage, the court did so.
Those two actions are exactly what Jefferson warned against.
Jefferson’s opinion would have resulted in the bills being sent back to Congress for them to make the final laws. Jefferson said such action by the court would “make the judiciary a despotic branch.”
In the forthcoming presidential election of major importance is what kind of court jurists the new president might appoint.
How true to the original understanding of the law will new jurists be?
Each session of the court opens with, “God save the United States and this honorable court.” So it is written, so may it be.