Perspectives: Putting the Supreme Court nomination – and the institution itself – into perspective

July 8, 2018 Utah Channel 3

OPINION — To say that there is intense interest in the president’s Supreme Court nominees is an understatement.

In today’s cultural climate of political friction and lust for dominion over others, that’s not exactly a surprise. What’s interesting is how the Supreme Court has become a key focal point over the past few generations of how political power is exercised in America.

Each appointment is accompanied by prophesies of national doom or salvation, depending upon the political leanings of the nominee. Few think to ask the question of whether the framers of our system of government intended for our political fate to hang on the opinions of five unelected individuals.

In light of our recent celebration of how this nation achieved its independence, it’s a question worth revisiting.

The federal system of government that was called into existence by the Constitution was created to be a servant of the people, as noted in the preamble. It was not intended to be an all-powerful national government with an unchecked ability to consolidate power as it desired.

Modern Americans have forgotten that federal and national government are not the same thing.

James Madison made this clear in Federalist #39, where he distinguishes between a federal and national government at least six times. Under a federal system, the national government was subservient to the states with the exception of a few carefully enumerated areas of common interest where power was delegated to it by the states.

The founders understood that continuous consolidation of power in the hands of a centralized government was a recipe for tyranny. As they stated in the Declaration of Independence, for liberty to exist, a just government requires the consent of the governed.

For this reason, they created a system of vertical checks against consolidation of power by distributing it between the federal, state and local levels. They also incorporated horizontal separation between the three branches of the federal government with corresponding checks and balances.

Judicial review is mentioned nowhere in the Constitution itself, although Alexander Hamilton in Federalist #78 explained that its purpose was to prevent Congress from superseding the Constitution – and the abiding will of the people – simply by passing laws. He believed the threat of tyranny from the federal courts was minimal.

What happened instead was one branch of the federal government assumed a power not expressly given to it by the Constitution and stated that it would act as a check on the other branches. Following the Marbury v. Madison ruling, judicial review ceased to be a check on the national government as a whole, as it made liberty take a backseat to the court’s rules.

Paul Rosenberg correctly identifies where the primary responsibility for checking federal power should reside:

The original design of the republic empowered the states to act as checks on the national government. This was the primary purpose of the federal structure. Without it, the national government has no check on its expansion and use of power. Thus it would seem that the states should be the interpreters of the Constitution – after all, it was they who created it.

The temptation for mischief was foreseen by anti-federalists who warned that “the judges will be interested to extend the powers of the courts, and to construe the Constitution, as much as possible, in such a way as to favor it.”

Time has show that the anti-federalists were correct in their skepticism about whether the consolidationists would abide by the clearly enumerated limits of the Constitution.

With the Supreme Court usurping powers not given to it, the Constitution became a document that could be twisted to mean whatever a majority of five black-robed justices wanted it to mean.

You don’t have to be a cynic to recognize how our judicial system somehow manages to drum up enough legal sophistry to magically discover that the Constitution supports whatever they want. Under this standard, the consent of the governed is no longer necessary.

Tom Mullen has written a brilliant essay explaining how the Supreme Court destroys the consent of the governed. He draws a clear distinction between the Constitution, which enumerates the powers the people have consented for government to exercise, and voting, which simply decides who will exercise the powers granted.

Mullen notes:

Here’s a useful rule of thumb. If it takes nine judges dozens of pages of legalese to explain how the Constitution grants a power in question to the federal government, then we should assume the power isn’t there. If there is any question at all, an amendment to the Constitution should be offered to determine if the people really do consent.

Instead of getting wrapped around the axle over which judicial personality will be misusing powers he or she was never given, let’s reconsider whether those powers are actually theirs to exercise in the first place.

Bryan Hyde is an opinion columnist specializing in current events and liberty viewed through what he calls the lens of common sense. The opinions stated in this article are his own and may not be representative of St. George News.

Email: bryanh@stgnews.com

Twitter: @youcancallmebry