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Through the course of these materials, we can see that the Supreme Court has not stayed true to the charge given it to preserve the original allocations of governing power between the federal government and the states. It has gone beyond its original mandate exercising will rather than just judgment as explained in Federalist No. 78. Consequently, the states have been extremely hampered in their ability to control the moral environments within their borders. Their traditional police powers have been greatly diminished by the libertarian mandate imposed on them by the U.S. Supreme Court. Whereas our founders and framers believed that the base of morality and virtue in the people had to be successfully maintained in order for liberty to be preserved, the Court has hindered the states’ ability to support the maintenance of that base. In this closing article, I will discuss what can be done to recapture some of our lost philosophic and political ground. As mentioned in an earlier article, while the Supreme Court is not democratically controlled, it is politically influenced. As R. Kent Newmyer observed about the earliest days of the Marshall Court: “The Court and its chief justice discovered the great truth that political calculation and judging, in the American constitutional system, could never be entirely separate.”[1] We will look for clues
from our past to see what can effectively be done today to apply political
pressure for change. While the first part of the discussion might seem
fairly common and traditional, the latter part of the discussion will
introduce you to some very interesting American history that will probably
be new to you. Educate Yourself And Improve Your Ability To Express Yourself Intelligibly And Persuasively As Thomas Jefferson observed: "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be."[2] So before anything can be effectively done, people have to become educated about their constitutional heritage – they must understand the basics in order to judge the propriety of what they see playing out before their eyes both politically and legally in the courts. That has been the underlying purpose of these materials. Before the advent of radio, television, the Internet, computer games, etc., people used to discuss things more with their friends and neighbors. We had a more politically astute populace. We need to regain the willingness to engage people in such dialogue. We need to discuss these things with our children and grandchildren so that the education they receive in school will be enhanced and extended such that they understand this critical part of their American history. We cannot rely upon our public school teachers to do it for us for most of them are ignorant of it.
Be Careful Who You Vote For, And Actively Get Involved In The Campaigns Of Those You Finally Choose As Your Candidates One of your most important political inputs is in electing the President. Who the President chooses to be federal judges can have a long-term impact on society that will stretch well beyond the end of his own term as President. This is one of the most important issues voters should consider in making their choices among competing presidential candidates. Once you have carefully chosen your candidate, actively help his campaign to succeed. Concerning members of the House of Representatives, as Federalist No. 44 says, the first defense against federal usurpation is in electing representatives who will not tend to usurp power in the first place and in replacing those who have, with other representatives who will annul any prior usurpations.[3] Now that Senators are popularly elected too, the same can be said about them. You should also look very closely at the judicial philosophies of the various senatorial candidates in your state since they ultimately have control over whether or not the president’s judicial nominees actually get installed as judges. Likewise, it is important that you take care to elect good state legislators since Federalist No. 26 advises: “...the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.”[4] If we are ever going to reclaim our 10th Amendment rights, it will probably have to start at the state level. We need to get our state legislators to start thinking in terms of trying to reclaim those rights and becoming vocal about it.
Traditional Democratic Political Pressures Towards Our Current Politicians Aside from trying to elect the right people in the first place, we also need to pressure the powers that be. The traditional means of doing so is writing your political representatives both federal and state. Another way is to ask questions about their positions on things when given the opportunity in public meetings that are open to you. As you express yourself in writing, edit and re-edit your work several times over to increase its persuasiveness and excise anything that would give the impression of shrillness or extremism. Your finished work should appear to be well reasoned and the product of thoughtful deliberation. It probably should be short and to the point and you should be careful about its tone. Have a trusted friend or two read your work to help you accomplish what you want to in your finished product. Often times they can see problems or weaknesses that you cannot – what may seem clear to you, may not effectively come through in your letter to the mind of the your intended audience or may even have an unintended negative effect on your audience. Before talking about putting political pressure on the federal judiciary, consider a connected legislative matter worthy of consideration. The ACLU is at the forefront of trying to achieve total separation of church and state. They bring law suits to remove the ten commandments from public places, stop schools from leading their students in the Pledge of Allegiance, etc. Whenever they win, they get attorney’s fees under the 1976 Civil Rights Attorney’s Fees Award Act.[5] In other words, the taxpayers are forced to involuntarily fund their legal activities. For example, when they and similar organizations sued to get the ten commandments removed from the State Judicial Building in Alabama, their group was awarded $540,000.[6] When the Boy Scouts of America (BSA) prohibited homosexuals from serving as leaders, they became a litigation target for the ACLU. In its fight to get the courts to prohibit the BSA from using San Diego’s Balboa Park, the ACLU was awarded $790,000 plus $160,000 in court costs.[7] Kentucky taxpayers had to pay the ACLU $121,500 in its action to remove the ten commandments outside the state capital.[8] So the taxpayers are being forced by the courts to financially support the counter-culture by involuntarily funding the destruction of our political memories of our religious roots. Whereas our founders saw a need to publicly support religion, today’s federal courts feel it appropriate to drive religion entirely out of the public square while the ACLU and other such groups are profiting handsomely in the process at taxpayers’ expense. Consistent with the discussion in the prior article, this is yet another example of how the present-day meaning of “rights” has fostered minority control over a very important public issue. We should write to our Representatives and Senators to repeal or amend that federal act to stop this type of abuse. Moreover, we should complain to them about the federal courts ruling the way they do on such matters through judicial activism where their opinions about public policy effectively trump those of democratic majorities. Once you have written your letters, encourage your friends and neighbors to write their own letters in the same manner. If enough people got involved and politicians sensed a growing concern among their constituents, about judicial activism, pretty soon it would cause them to start talking about these issues in their public speeches. Federal judges are mindful of the political environment – they watch the news and read the papers just like everybody else. If our judges sensed great public revulsion arising because of their activism, they would probably moderate their behavior. If the President, many members of Congress, Governors, and state legislators started to strongly complain about the Supreme Court in public, like President Bush did in his State of the Union address in early 2004, the judges would probably take notice. They know how important public trust and confidence in the judiciary is and would probably back off if they sensed that the public could no longer be fooled about the illegitimate character of their judicial activism. Remember what happened with the political pressure exerted by President Franklin Delano Roosevelt during the Great Depression. As discussed in a prior article, his public criticism of the court and his threats to change the makeup of the court caused a couple of judges to change the way they voted and dramatically changed the philosophic direction of the court during the late 1930s. Consider a more recent example. The U. S. Supreme Court got a lot of criticism for stepping in and stopping the Florida Supreme Court from overriding the Florida legislature’s pre-established procedures for dealing with election disputes regarding the Presidential election of 2000.[9] Regarding such elections, Article II, Section 1 of the U. S. Constitution provides: “Each state shall appoint [Electors], in such Manner as the Legislature thereof may direct....” (emphasis added) The U. S. Supreme Court stopped the recount process ordered by the Florida Supreme Court allowing the Florida Secretary of State’s declaration of the winner – which was determined by state statutory law – to become final. Ever since, many people still accuse President Bush of “stealing the election” and criticize the Court for its complicity in that theft even though the recount process funded by the national news media and performed after the election results were finalized, verified that President Bush did, in fact, win Florida.[10] Some claim that the U. S. Supreme Court was performing judicial activism on behalf of conservatives in entering the fray. But how could that be so when the Constitution clearly states that the state legislatures have the authority to determine how Presidential Electors are appointed, not the state judiciaries? By stopping the Florida Supreme Court from imposing its own rules contrary to those set forth by the Florida legislature, was the U. S. Supreme Court not simply enforcing the above quoted portion of the Constitution? How could that be legitimately called judicial activism? Building upon the foregoing case to make my point about political influence/public pressure over the Supreme Court, consider what later happened in the 2002 Senate race in New Jersey. Senator Toricelli, the incumbent, had secured the nomination for his party in the primary election. By state statute, once such a nomination had been formally decided, a party could later decide to change its nominee so long as it occurred no later than fifty-one days prior to the general election.[11] Senator Toricelli got some very negative press coverage about graft and corruption. The proof was sufficient to cause seven people to plead guilty to making illegal donations to Toricelli’s campaign and his formal reprimand by the U.S. Senate.[12] So devastating was the press coverage about his conduct, that his party feared he could not win the general election so it tried to change its nomination to Frank Lautenberg thirty-six days before the general election. The problem was that they didn’t do this before the last possible date set by the state statute for doing so. In clear contravention of the state statute, the New Jersey Supreme Court said that the change of candidates could still occur. An appeal by the opposing party to the U. S. Supreme Court ensued. Similar to the Florida Presidential election case, the Court had ample authority in the Constitution to step in and preserve the rules set forth by the New Jersey legislature against obvious encroachment by the New Jersey judiciary because Article 1, Section 4 of the U. S. Constitution provides: “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof....” (emphasis added) Nevertheless, the U. S. Supreme Court declined to hear the case. Many people interpreted the reason for doing so as simply a desire to avoid all of the political controversy, and the likely diminution of its institutional image in the public’s mind, that would attend such a case as previously occurred in the Bush/Gore contest in Florida two years earlier. If this is correct, then we can see that the general political climate does have an effect on what the Supreme Court decides to do. It is very hesitant to do things that will imperil the general pubic trust and confidence in it. For similar reasons, certainly the Supreme Court would not normally want to get involved in state political battles between the various branches of state government, but in both of the foregoing cases, elections to federal public office were at stake and the U. S. Constitution clearly gave the state legislatures the rule-making authority over such federal elections – not the state judiciaries. So in both those cases, the Court did have the authority to intervene to protect the state legislative rules from state judicial encroachment but only did so in the first case. Is it not reasonable to suspect that political calculations by the various Supreme Court Justices explain the different stances?
Morality Should Again Be Emphasized In The Political Arena It seems over the years that religion and morality have effectively become marginalized in the political arena. Various political factions have sought very hard to demean and ridicule these things. As we write to the various politicians, we should indicate that these things are very important to us. They need to know that if they are perceived as being part of the problem in our nation’s moral slide, that they will pay the ultimate political price come election time. The moral majority needs to assert itself politically for if it insists upon staying silent, it will soon cease to be the majority. Every religious person should make greater effort to be heard by his or her Congressman, Governor, Senators, and state legislators. Each of us should encourage our friends and acquaintances to do the same. Once people have educated themselves on the basics, personally composed, intelligent, and heart-felt letters of protest over the loss of our 10th Amendment rights should flood Congress, our state houses, the White House and our Governors’ mansions, demanding a return of our democratic rights to local self-determination. In trying to reclaim our 10th Amendment rights to local democratic self-determination regarding all things not specifically delegated to the federal government, the politicians may respond that their hands are tied because of the Bill of Rights. If so, we should respond that only judicial misinterpretations of the 14th Amendment starting about sixty years after its passage have caused people to believe this fallacy, and that we want political pressure to be brought to bear against the federal courts to return themselves to the intents of the framers of the 14th Amendment and the views of the Supreme Court concerning that Amendment during the first few generations immediately following its adoption. After all, the justices who lived at the time of its adoption were in the best position to know what the intents were of those who drafted and adopted it. In quick summary of a prior article on the topic of the 14th Amendment, neither the framers of it nor the Supreme Court’s initial interpretations of it took an expansive view which would nullify federalism in general and nationalize all rights to the detriment of the states’ traditional police powers under the 10th Amendment. These latter propositions only gained sway through inappropriate judicial activism about three generations after the 14th Amendment’s passage, by a Supreme Court that had lost its institutional memory of those times. For example, when the Court, contrary to the intents of those who ratified the 14th Amendment, later applied the 1st Amendment against the states through the 14th Amendment, the states lost their effective power to regulate pornography, etc. As it has done several times before, the Supreme Court can reverse its prior precedents which took us off the appropriate path if enough political pressure can be brought to bear against it.
Checking Action By The Coordinate Branches Of Government The preceding discussion dealt with very mild and traditional correctives. However, there are historical precedents for other types of political action in the nature of checking forces over judicial abuse. Impeachment As we all know, the Constitution provides for an impeachment process. However, since it requires a two-thirds affirmative vote in the Senate to convict, it has not been viewed to be a very effective checking mechanism. Jefferson observed that it is so difficult to achieve politically, that it is no more effective than a scarecrow in a corn field in holding at bay those who are inclined to gobble up what shouldn’t be gobbled (i.e. corn in the one instance and power and authority in the other.) Besides, because of America’s general ignorance of constitutional matters, it is doubtful that even a majority of the people could be convinced that the impeachment process is an appropriate corrective mechanism to check philosophical departures by the federal courts. Anyone attempting to use it for such would be accused of politicizing the Court, attacking its judicial independence, and destroying our Constitutional form of government. Demagoguery would likely win the day in those arguments. Federalist No. 65 said the following about the Senate’s impeachment powers: “The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”[13] Changing the Constitution through judicial activism would certainly be a violation of the public trust since it encroaches upon the legislative authority. Federalist No. 81 specifically says that judicial encroachments upon legislative authority is grounds for impeachment,[14] but in view of general public ignorance of basic constitutional principles, I doubt that most people could be convinced that such should be an impeachable offence. Besides, today there aren’t even enough Senatorial votes to halt a filibuster of President Bush’s judicial nominations even at the appellate court level, let alone enough votes for any bold attempt to impeach sitting judges requiring an even higher voting standard for success. So the impeachment threat is really nothing more than a paper tiger. Constitutional Amendment Of course anything done by the Supreme Court, can be undone by a constitutional amendment. For example, this happened with the 11th Amendment discussed below. But it is extremely difficult to succeed at such a venture because two-thirds of Congress must agree, along with three-quarters of the states. Ignoring the Supreme Court Another possibility that has been talked about in the press recently is simply ignoring the Court when it goes beyond the pale. After all, the courts have no ability to enforce their judgments without the cooperation of the other branches of government. As discussed in Federalist No. 81, this structural impotency is a purposeful check and balance mechanism to keep the courts within their assigned authority.[15] Perhaps you are shocked by such a suggestion since you have never seen any such thing happen in your lifetime, but there are some interesting historical precedents for this which I will discuss below. While you and I might disagree with the political motivations behind some of the following historical events, for purposes of this article, I want to focus on the political checking mechanisms themselves and not the reasons for their prior invocations.
President Thomas Jefferson’s Threat To Ignore The Supreme Court: Marbury v. Madison Our first two Presidents (Washington and Adams) were Federalists who believed in stronger federal or national power. However, Jefferson defeated Adams in a contest for a second term as President. Jefferson favored a weaker federal government and stronger state governments. To get some feel for the philosophic contest between the Federalists (largely orchestrated by John Marshall as Chief Justice of the Supreme Court) and the Republicans (largely orchestrated by Jefferson), consider the following to give some insights into the mindset of Marshall: “The most immediate lesson [George] Washington learned, and imparted to his young admirer [Marshall], was the danger of self-interest and ambition when linked to localism and state sovereignty. Judging from the letters Marshall would quote in his biography [of Washington], Washington spent nearly as much energy fighting a weak-kneed Congress and self-centered states as he did the British Army.”[16] As a Revolutionary officer, Marshall struggled through the bitter winter at Valley Forge and other sufferings caused by the various state legislatures failing to send sufficient support for the war effort. Despite a promising legal and political career in Virginia and the sentiments of many of his friends and associates favoring a weaker central government, Marshall sided with the Federalists. Why? “Marshall’s own answer to the question was beguilingly simple. Looking back near the end of his life on this period of constitutional gestation, he accounted for his unwavering support of the Constitution in plain language: ‘I partook largely of the suffering and the feelings of the army, and brought with me into civil life an ardent devotion to its interests. My immediate entrance into the state legislature opened to my view the causes which had been chiefly instrumental in augmenting those sufferings, and the general tendency of state politics convinced me that no safe and permanent remedy could be found but in a more efficient and better organized general government.’ And so it was. Soldiering made him a nationalist, and serving in the Virginia legislature in the 1780s confirmed what the war taught.”[17] John Marshall served as John Adams’ Secretary of State. Adams later made him Chief Justice of the Supreme Court before leaving office. Marshall and Jefferson were cousins and fellow-Virginians but were political enemies when it came to broad constitutional matters. Knowing that the federalist administration was coming to a close, Adams sought to extend long-term federalist influence over the federal government by creating a lot of new judicial posts and filling them with loyal federalists. R. Kent Newmyer tells us an interesting bit of history and sets the stage for the contests between Marshall and Jefferson: “Unfortunately for historians, there were no cameras to record the deliciously ironic moment on March 4, 1801, when the new chief justice administered the oath of office to the new president. With his hand on the Bible held by Marshall, Jefferson swore to uphold the Constitution Marshall was sure he was about to destroy....Nor was it coincidental that Marshall turned his back to the president during the ceremony.”[18] “....[T]he Federal Judiciary Act of 1801....was unmistakably partisan. The act created sixteen new federal circuit judgeships, which Adams filled with loyal Federalists....By expanding the jurisdiction of the federal judiciary, at the expense of state courts, the measure added to the already firm conviction among Republicans [Jefferson’s party] that the federal courts were being redesigned to do the work of the Federalist Party. Republicans were confirmed in this impression by the provision of the final bill that reduced the number of Supreme Court justices from six to five, effective at the next vacancy – a provision that aimed to deprive Jefferson of an appointment to the Court that was expected to occur with the death or resignation of William Cushing. Such blatant partisanship guaranteed that Jefferson would declare open season on Marshall and the Court.”[19] Adams nominated, the Senate accepted, and the Secretary of State (John Marshall) processed the commissions for several such judges, one of whom was Mr. Marbury. But time ran out and Mashall could not physically deliver Mr. Marbury’s and others’ commissions before Jefferson became President. Once he came into office with his new Secretary of State, James Madison, he refused to deliver Mr. Marbury his commission. Marbury filed a lawsuit in the Supreme Court asking for a writ of mandamus ordering the executive branch to deliver the various judicial commissions. He was not asking the Court to hear the case under the original jurisdiction set forth in the Constitution, but rather, under expanded aspects of original jurisdiction granted later to the Court by an ordinary act of Congress. This difference becomes critical to the outcome of the case. “Original jurisdiction” means that the case would start and end in the Supreme Court. When a court exercises appellate jurisdiction, the case begins in a lower court and is appealed to the higher court after all the witnesses have been heard, evidence produced and considered, arguments made by the respective counsel and, ultimately, a judgment rendered by the lower court. Ironically, the man who used to serve as the Secretary of State and who failed to timely deliver the commissions in the first place, was now the Chief Justice of the Supreme Court who would hear the legal arguments relative to the case and issue a ruling. Jefferson and Madison had totally stonewalled Mr. Marbury and the Court. His administration refused to even show up in court to make any arguments. Marshall was in a very delicate political position since Jefferson was obviously prepared to ignore any order issued by the Court trying to force his hand with respect to those undelivered judicial commissions. However, like Houdini, Marshall managed to perform a political-death defying escape from the trap set for him and do it in a way that actually strengthened the power of the Supreme Court. In the first half of his opinion, he gave his cousin a political tongue lashing saying why the commissions should have been effective even without their physical delivery. In the second half, he addressed whether or not the Court had original jurisdiction to hear the case. In effect, he said that Congress did not have the power to expand the original jurisdiction of the Supreme Court set forth in Article III of the Constitution. After delineating the various judicial powers, Marshall focused on the following language of Article III, Section 2, Paragraph 2 : “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Apparently the first three categories of original jurisdiction only have to do with foreigners since the Secretary of State, James Madison, was not considered to be a “public minister” for purposes of this matter – otherwise, the court would have had original jurisdiction under the Constitution to hear the case. Perhaps Marshall took a restrictive view of this term so that he could gracefully sidestep the case since to do otherwise and rule on the case would have allowed the President a greater victory at the Court’s expense. Marshall said that the constitutional language allowing Congress to carve out jurisdictional exceptions only applied to the Supreme Court’s appellate jurisdiction and not to its original jurisdiction which was pre-set by the Constitution itself. In the process, he said that the Supreme Court has the power to declare an act of Congress unconstitutional and hence, void, thus solidifying the idea of judicial review. So after criticizing his cousin, he didn’t order Jefferson to deliver the commissions and thus, cut off Jefferson’s ability to embarrass and weaken the court by refusing to comply with its order. Marshall outfoxed his cousin by allowing Jefferson to win the relatively small immediate political battle over the judicial appointments but in a way that would allow Marshall to win the overall philosophic war regarding federal judicial power. After all, Marbury was simply going to be a justice of the peace in D.C. – not some high level federal judge. The prime point that I want to make here is that the Court was very cognizant of the political environment in which it existed and crafted an opinion that would tend to strengthen its reputation in the eyes of the public and enhance their trust in it as an institution rather than do things to imperil that trust and reputation. Hence, it is not directly democratically controlled but it is indirectly influenced by political things going on around it. Another example of resistance by the federal executive branch to an order of the Court involves President Jackson and the case of Worcester v. Georgia discussed a little later in the article. Consider the same potential dynamic concerning judicial activism at the state court level. Recently the Supreme Court of Massachusetts effectively forced gay marriage onto their state through their “interpretation” (i.e. judicial amendment) of their state constitution. What if the Governor had refused to enforce that ruling citing his own oath of office to support and defend the Massachusetts state constitution? Couldn’t he have done so in good conscience? What could the court have done about it? Nothing. Couldn’t the fact that the state Supreme Court depends upon its coordinate branches of state government to enforce its rulings be viewed as a purposeful political mechanism to check abusive judicial power?
Checking Forces By State Governments Regarding Federal Court Rulings In Federalist No. 46 Madison said: “[S]hould an unwarrantable measure of the federal government be unpopular in particular States...the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to cooperate with the officers of the union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices...would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.”[20] “But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other [i.e. revolution.] But what degree of madness could ever drive the federal government to such an extremity[?]”[21] (emphasis added) The following cases and the Virginia and Kentucky Resolutions passed in response to the federal Alien and Sedition Acts (discussed later) are examples of the foregoing sentiments being put into action. Chisholm v. Georgia (1793) R. Kent Newmyer tells us: “The decade before 1800, as well as the one after, was also replete with examples of successful state resistance to the Court-imposed federal law. For example, Georgia threatened to use force to prevent the enforcement of Chisholm v. Georgia, just as Pennsylvania would do later in regard to U.S. v. Peters (1809).”[22] Robert Eugene Cushman elaborates: “When the Constitution was before the states for ratification its opponents raised the objection that the clause which provided that the judicial power of the United States should extend to controversies ‘between a State and citizens of another State” (article 3, section 2) would subject the states to suits brought by individual creditors and others who might feel that they had grievances. This idea was particularly obnoxious because the states had neither the intention nor the desire to repay money which was owing to loyalists or British subjects nor to restore the property which had been confiscated during the war. That the clause in question would authorize suits by citizens against the states was denied by Hamilton in Federalist (No. 81) and was also vigorously repudiated by Madison and Marshall in the Virginia ratifying convention of 1788 (Elliot’s Debates, 2d Ed. III, 533, 555). That the fears which had been aroused were not ill-founded, however, was evidenced by the fact that within two years after the organization of the Supreme Court four cases were instituted before that tribunal against states of the Union by individuals. The first case which came on for decision was that of Chisholm v. Georgia, 2 Dallas 419 (1793), which involved a suit brought by Chisholm and another, citizens of South Carolina, as executors of an English creditor of the state of Georgia. Georgia hotly declined to appear to defend the suit, denying the jurisdiction of the Supreme Court to entertain such an action. The court, however, to the general surprise held that the suit was properly brought and that a state could be sued in the Supreme Court by an individual....Since the state of Georgia still refused to appear as a defendant a judgment by default was entered against the state. “The decision aroused immediate and bitter opposition. The lower house of the Georgia legislature passed a bill to punish by hanging any person who should attempt to aid in enforcing the decree of the court. Other states also protested, for upon the authority of the court’s decision suits were soon instituted against several other states. Within two days of the handing down of the decision in Chisholm v. Georgia a constitutional amendment was introduced into Congress depriving the federal courts of all jurisdiction in cases brought against a state by the citizens of other states or of any foreign country. This was ratified in 1798 and became the Eleventh Amendment. In Hans v. Louisiana, 134 U. S. 1 (1890), the Supreme Court held that a state could not be sued by one of its own citizens.”[23] Elkison v. Deliesseline (1823) James W. Ely, Jr. tells us that in the 1820s: “Several southern states passed legislation requiring the free black sailors be detained in custody until their ship left port. Such acts interfered with the conduct of both interstate and foreign commerce, and the British government strongly protested when the laws were applied to its seamen. In Elkison v. Deliesseline (1823) Justice William Johnson, in a circuit court opinion, declared that South Carolina’s act was incompatible with congressional power to regulate commerce. South Carolina authorities refused to comply with Johnson’s ruling, and the Supreme Court never reviewed the constitutionality of the Negro Seamen’s Acts. As this episode suggests, throughout the antebellum years [the years before the Civil War], the Supreme Court was under intense pressure to respect state police power. This in turn may explain some of the analytical confusion that characterized cases involving state power over interstate commerce.”[24] Again, our current discussion is about political structures and checking mechanisms. Political powers can always be abused. I presume that most of us would agree the state laws involved in the foregoing case were odious in nature – moral principle was on the side of the court ruling and against the state position. But what if the positions were reversed regarding a different issue? What if moral principle were on the side of the states and against the federal judicial position on a different issue? I would hope that you could see that just because you think a certain political checking mechanism was abused before, that should not cause you to conclude that its use in all contexts is necessarily wrong. The mechanism itself is morally neutral. Moral concerns come into play when we consider when the mechanism should or should not be used in the context of specific issues.
Worcester v. Georgia (1832) Constitutional historian Erik McKinley Eriksson tells us: “the question in the case [of Worcester v. Georgia (1832)] was the right of the national government alone to regulate and control Indian territory within the states. The [Supreme Court] upheld this right, and declared void laws of the state of Georgia which extended the jurisdiction of that state over the Indian territory within her borders. “The state of Georgia, however defied the mandate of the Supreme Court, and President Jackson refused to enforce it, on the grounds of his opposition to the policy of depriving the states of their right to control Indian territory in their limits. This was a blow to the right of the Supreme Court to review state laws as to their constitutionality. It should be mentioned that President Jackson was within his constitutional rights in refusing to enforce the decision of the Supreme Court. Ordinarily the president would naturally cooperate with the Supreme Court but to compel him to enforce the court’s decisions which were contrary to his own judgment would tend to destroy the principle of separation of powers.”[25] Worcester had been imprisoned under Georgia law but despite its ruling against the State of Georgia, the Supreme Court failed to secure his release because of the President’s refusal to enforce that ruling.[26] Article VI of the U. S. Constitution provides: “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....” Since all of the foregoing public officials take an oath to support the Constitution, could they not in good conscience, refuse to obey a court order they sincerely believed to be unconstitutional as President Jackson did? Certainly we would hope that such conduct would seldom become necessary, but doesn’t our political structure set this possibility up as a checking function over the judiciary? The Dred Scott Case (1857) By way of historical background, Kraus tells us: “The extension westward of plantation culture had brought slavery to Missouri and other parts of the Louisiana Purchase. In 1819 Missouri’s application to enter the Union suddenly precipitated a crisis. At that time there were twenty-two states, evenly divided between slave and free. Missouri’s entrance would tip the balance in favor of the South. “Northerners, fretful over alleged Southern aggressiveness and genuinely fearful of the spread of slavery, determined to place reservations on Missouri’s application.... “The whole country was quickly in an uproar....Each side threatened secession if it failed to win its point. National leaders worked toward compromise. In March, 1820, a compromise measure was carried through Congress by a close vote after days of stormy debate. When Missouri was admitted to the Union she entered as a slave state, but she was balanced by Maine (formerly part of Massachusetts) as a free state. Slavery was to be excluded from the remaining territory of the Louisiana Purchase north of the line 36 degrees, 30 minutes. The South thus conceded federal control over slavery in the territories.”[27] This became known as the Missouri Compromise. All the way up to the Civil War, similar compromises were made to keep the free states and slave states politically balanced and keep the South from seceding. Moving forward to 1857, seeing all the turmoil between North and South in the political arena over slavery, President Buchanan hoped that the Supreme Court in the Dred Scott case would settle the slavery issue once and for all.[28] Kraus continues: “Dred Scott, a Negro slave, had been taken from Missouri by his master to Illinois and Minnesota Territory, where he had resided for two years, and then returned. Some time later he sued for his liberty in Missouri courts on the ground that residence in a free state and in territory north of the Missouri Compromise line had automatically conferred freedom upon him.... “[In the U. S. Supreme Court] Dred Scott’s claim was denied on three grounds: (1) Negroes could not be United States citizens, therefore they could not sue in federal courts, (2) Illinois laws could not affect his situation in Missouri, where he now resided, and (3) residence in Minnesota Territory, which was north of 36 degrees 30 minutes, did not confer freedom as the Missouri Compromise itself was unconstitutional. “Northern papers blazed with the inflammatory news – ‘The Missouri Compromise Unconstitutional – The Triumph of Slavery Complete.’ It was plain to everyone that the court was heavily biased in favor of the South, seven of the nine Justices were Democrats, and five of the seven were Southerners. Their decision meant that slavery followed the flag; squatter sovereignty seemed dead. [I presume he meant by this that the ability of the people in a given territory to decide for themselves whether their state would be a free state of a slave state under the Kansas-Nebraska Act was dead and wherever the U. S. flag flew, slavery would have to be recognized.] “Without hesitation the North spurned the verdict. The prestige of the court, overweighted as it was in the South’s favor, had been declining for some years in Northern opinion and now it almost vanished. Northern legislatures condemned the decision; New York announced that any slave brought to that state would be immediately freed, and an individual even passing through the state with a slave risked a prison term of up to ten years. Press and pulpit denounced the court, and people everywhere in the North felt that the decision was not binding upon them.”[29] * * * “...It was almost impossible now to recover fugitive slaves in most Northern states, and the Wisconsin legislature, in 1859, declared the Dred Scott decision null and void.”[30] By way of contrast, the South’s response to the Dred Scott decision was radically different. Says Kraus: “Triumphant Southerners were now demanding that the [Democratic] party go beyond the older principle – that Congress could not force slavery out of the Territories – to the more radical position that it was obligated to defend slavery in them.”[31] As the North and South divided further over this and other issues, secession fever consumed the South and they finally crossed the threshold when Lincoln won the presidency. Perhaps referring to the Dred Scott decision, in his first inaugural address Lincoln said: "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."[32]
Checking Forces At The State Level Were The Exception, Not The General Rule It should be noted, that even though the judiciary’s public image was damaged from the political checking responses at the state level to the foregoing cases, and those checking responses affected the Court’s future behavior, our federal government never disintegrated in the process. The closest thing to it was the Civil War, but it would not be fair to blame that upon the Dred Scott case and the various state responses to it since the pressures for secession had been building for several decades and not just over the slavery issue. Kraus explains: “Hundreds of thousands of Southerners had reached the conviction that the United States had become two distinct nations....One Virginia newspaper urged the establishment of a separate nation should the Republican candidate win election, arguing that it would promote Southern manufactures and commerce, local educational institutions, a new set of fashions, a new dialect, and a vigorous literature. In short, the whole life of the South, allegedly then under Northern domination, would be greatly stimulated by the creation of an independent nation. A struggle for economic and cultural independence preceded the test in the grimmer field of military conflict. “As Southerners looked at the national, and even world, economy they firmly believed that their region held the key to the prosperity of the Atlantic peoples. The real foundation of American wealth, they said, lay in Southern agriculture. The North, like a parasite, depended for its existence on the very institution of slavery she so violently indicted. Merchants, mechanics, farmers, lawyers, and doctors in the North all directly or indirectly ‘derive profit from that source,’ a Southern paper asserted. Imposing cities – Boston, New York, and Philadelphia – all depended on economic ties with the South. Were they to lose these benefits ‘their huge proportions would fall to decay, and scenes of wretchedness more absolute than words could depict mark their ruin.’ As for Great Britain (which depended for 70 percent of its vast cotton imports on the South), were she to be deprived ‘of the fruits of her commerce in our great staples,’ gloated the same writer, ‘she would be almost stricken from the list of independent states; without them she could not clothe and give employment to her thronging masses, nor long stagger under the oppressive weight of her accumulating debt.’”[33] In short, the South entertained an inflated image of its own importance to the country and even the world and felt like the North took unfair advantage of it. This powerfully pushed them towards secession in addition to the constant political irritations over the slavery issue. But as discussed above, threats of secession went back at least to1820 regarding the Missouri Compromise. So even though the political response to the Dred Scott case contributed to the secession movement in the South, it was only one small part of a greater motivational whole -- it was only one straw of many that eventually broke the camel’s back. It should be noted that even though there were several cases where the states resisted the enforcement of various Supreme Court rulings, those who exercised those political checking forces did not get into the habit of thwarting the judiciary in an indiscriminate manner. We always eventually returned to the general political status quo where court orders were honored, respected, and executed by the coordinate branches of government. So if similar checking forces were ever brought to bear today and people expressed fears about the potential destruction of our form of government as a result, our American history would not support such fears since it never happened before when they were used. And, as discussed above, such conduct cannot be blamed for the Civil War. This all could be looked at as an application of what Madison told us in Federalist No. 51. He said that if men were angels there would be no need to set up structural inhibitions to the abuse of some towards others, but since our motives lack angelic stature, the next best thing is to set ambition against ambition and set natural rivalries in opposition to one another in order to keep them in check.[34] The recent Supreme Court case of Lawrence v. Texas[35] which held Texas’ anti-sodomy law to be unconstitutional, could very easily have produced an outcome similar to the Worcester case, but it didn’t. Imagine what would have happened had (1) the state of Texas refused to comply with the U. S. Supreme Court’s overturning of its criminal convictions, and (2) President Bush (the former Governor of Texas) refused to enforce that court order. As in Worcester, the Court would have been powerless to do anything about it. But neither Texas nor the President tried to do anything to resist the Court on that occasion. Today it would be more difficult politically for states to take such a position because of the prospect of being cut off from federal funding. Back at the time of the foregoing cases, the federal government was relatively small and did not have its hands in everything as it does today. The states were not kept in financial leading strings like puppets as they are today with all of the federal “strings money”on which they have become so dependent. So the states back then could afford to have backbone but today, the federal government gives so much financial support to the states (e.g. education subsidies, welfare subsidies, agricultural subsidies, federal highway funds, water projects, etc.) that it virtually controls what the states do politically. Absent encouragement and support from Congress, states could ill-afford to stand up to the federal courts. The Alien And Sedition Acts And The Resulting Virginia And Kentucky Resolutions Please indulge a bit more historical review because it is both interesting and insightful in understanding the Virginia and Kentucky Resolutions. Michael Kraus tells us: “The chief task of John Adams was to carry on the foreign policy in accord with the principles laid down in Washington’s administration. At that time pressure from both England and France jeopardized the peace of the United States. Now, however, the danger to American neutrality came largely from France. She regarded the Jay Treaty [with England] as a hostile move against herself, and as a violation of the old Franco-American treaty of alliance. The French professed to believe that American trade was favoring England, and in retaliation they seized and confiscated vessels and cargo belonging to citizens of the United States. The American envoy Charles C. Pinckney...was harshly treated by the French. Resentment against the insulting treatment of an American minister added to Federalist belligerency, already mounting dangerously. “By 1797 diplomatic relations between France and the United States had been suspended. The extremism of the French Revolution, whose leaders were alleged to be conspiring against the safety of other countries, roused the fears of conservatives. War fever was rising in America and France; the Americans increased their naval armament and adopted other measures of defense.”[36] A special commission was sent to France to try to resolve things only to be told by Talleyrand, the French Minister of Foreign Affairs, that for a “gift” of a quarter million dollars, the French could be induced to become more friendly. That request for a bribe was widely publicized in America and rebuked with the phrase “Millions for defense; not one cent for tribute.”[37] Kraus continues: “Friends of France, and that meant Jeffersonian Republicans, quailed before the storm. A wave of patriotic sentiment flooded the land; Adams was showered with loyal addresses.... “The French Revolution, in its later phases, strengthened conservatism in the United States as well as other countries.... “[Critics of the United States government] had recently come as political refugees from France or from Ireland, and they naturally gravitated to Jefferson’s party. They thus became a shining target for fearful Federalists who now used their control of government to impale the opposition. Federalists wrapped themselves in the mantle of Americanism; they stigmatized Republicans as foreign anarchists. In 1798 Congress adopted a series of measures known as the Alien and Sedition laws. The first of these extended from five to fourteen years the period of required residence before an alien could attain citizenship. Other acts empowered the President to send out of the country aliens judged dangerous to the nation; jail terms were prescribed for those refusing to go and for those coming back. A final measure made it a crime to write or publish ‘any false, scandalous, and malicious’ statements about the president or Congress, to bring them ‘into contempt or disrepute’ or to ‘stir up sedition within the United States.’ The laws were passed despite Hamilton’s advice to fellow Federalists that they were too extreme.”[38] Many believed that the Sedition Act violated the 1st Amendment’s prohibition against any federal attempt to impair freedom of speech and freedom of the press. Kraus continues: “The Republicans rallied their strength against the Federalist reign of terror. Matthew Lyon, a Vermont Republican and Congressman, was jailed and fined $1,000 under the Sedition Law. His fine was paid by a group of leading Republicans, including Jefferson, Madison, and Gallatin. His aroused constituents re-elected him to Congress, and Lyon’s return trip to Philadelphia became a triumphant procession. Uncowed, people throughout the country defied the Sedition Law, while Jefferson and Madison framed arguments against the new legislation on constitutional grounds. “Jefferson drafted the Kentucky resolution, which his friend George Nicholas, introduced in the legislature of that state; Madison drafted the Virginia resolutions, which were adopted a month later.”[39] The Virginia Resolution said in part: “Resolved, That the General Assembly of Virginia, doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression either foreign or domestic ... That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid than they are authorized by the grants enumerated in that compact; and that in case of deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”[40] Several years earlier Jefferson had said: “[The purpose of a written constitution is] to bind up the several branches of government by certain laws, which when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights.”[41] In other words, one of the purposes of a written constitution is to minimize the need of the people to revolt in order to protect their rights and avoid the inference that they acquiesce to any usurpation by their inaction. But success along these lines will only occur if there is a means of checking usurpation short of an appeal to arms. In our system, our first line of defense against usurpation is the federal judiciary, to whom we give life tenure to protect them from potential retribution from the coordinate branches of government in making such difficult calls. But what if the federal judiciary is in cahoots with the other federal branches in extending federal authority beyond its delegated bounds? Then, Jefferson says the states have the right to hold the federal government in check. The Kentucky Resolution passed December 3, 1799, said in part: “That the principle and construction contended for... that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy....”[42] Kraus adds: “Both [the Virginia and Kentucky Resolutions] set forth the theory that the Constitution was a compact among the States; both declared the Alien and Sedition Acts unconstitutional. But the Virginia resolutions simply announced that when the national government used unconstitutional measures, the States were in duty bound to interpose – just how, was not stated. The Kentucky resolutions went further. They asserted that whenever the general government exceeded its powers and took unconstitutional steps, then its acts were ‘unauthoritative, void, and are of no force.’ They also declared that Kentucky would never submit to undelegated and hence unlimited powers; and called upon the ‘Co-States’ to act concurrently on the question whether the Alien and Sedition Acts were allowable under the Federal Compact. “Little real doubt exists that Jefferson intended his Kentucky resolution to assert the doctrine of nullification; he believed a state had the right to pronounce an act of Congress null and void, and prevent its execution....The whole issue, however, now went into the election of 1800.”[43] “[New York was a pivotal state and a member of the politically powerful Livingston family complained of the Alien and Sedition Acts:] they ‘would have disgraced the age of Gothic barbarism.’ One arrest under these laws, that of Jedediah Peck, who was taken two hundred miles from Cooperstown to New York for trial, created widespread resentment. It was said at the time that it did more than two hundred missionaries could have done for the Republican party. “The tide of public opinion, in legislatures, in market places, and in the press, rose relentlessly against the Federalists. Jefferson had done much to form that opinion, through correspondence and conversation. He marshaled his political forces with the instinct of genius.”[44] The Supreme Court never ruled on the constitutionality of the Sedition Act although a lower 3-judge court said it was constitutional.[45] Jefferson’s party repealed the Alien and Sedition Acts once the Republicans won the election of 1800 which allowed them to take control of both houses of Congress and the presidency with Jefferson at the helm.[46] Because of those repeals, there was no need to encourage other states to follow the lead of Virginia and Kentucky in passing similar resolutions, but those resolutions were an interesting example of the states trying to rally each other in defending against federal usurpation as was encouraged in Federalist No. 46 discussed above.
Restricting The Appellate Jurisdiction Of The Supreme Court In Marbury v. Madison, the case discussed earlier where the Supreme Court established its right to declare acts of Congress unconstitutional, Chief Justice Marshall admitted that Congress could regulate its appellate jurisdiction but not its original jurisdiction as set forth in the Constitution. Article III, Section 2 states: “In all Cases affecting [1]Ambassadors, other public Ministers and Consuls, and [2] those in which a State shall be a Party, the supreme Court shall have original jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” In Federalist No. 81, Hamilton says: “We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes [see my bracketed numbers embedded in the above quotation], and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, ‘with such exceptions and under such regulations as the Congress shall make.” An interesting example of this congressional technique to control the Supreme Court occurred after the Civil War. After Lincoln’s assassination, Andrew Johnson took over the difficult process of trying to heal and reconstruct the nation. Johnson continued Lincoln’s approach of mildness towards the southern states. But the radical Republicans wanted to assure the dominance of northern interests, crush the southern aristocracy, and make sure that it never regained control of southern politics.[47] President Johnson said that he would grant a general amnesty and readmit to the Union the new government of a former state in rebellion once (1) at least ten percent (the radicals wanted this raised to be fifty percent) of the electorate of that state took an oath of loyalty to the Union, (2) it repudiated its state war debts, (3) it abolished slavery, and (4) it ratified the 13th Amendment outlawing slavery.[48] Presumably the state war debts were to the southern aristocracy and if they were to be repaid, it would increase their chances for regaining political control of the south. Kraus tells us that even after doing what Johnson asked and being recognized by him as reunited with the Union, the new southern governments passed: “‘Black Codes,’ which conferred some privileges upon the freedmen, but continued to draw a marked distinction between their rights and those of whites....In Mississippi, for example, the Black Code declared that all freedmen or free Negroes had to have lawful employment, and they were required to sign contracts binding them to the service of their employers for a full year. Those who were found without work were deemed to be vagrants, subject to being hired out by the sheriff to anyone who would undertake to pay their fines and be responsible for them.”[49] Seeing how the Black Codes degraded the freedmen, the radical Republicans insisted that the southern states adopt the 14th Amendment before their representatives could be readmitted to Congress. But the southern states refused.[50] Seeing how poorly the southern states were treating the newly-freed slaves and their refusals to adopt the 14th Amendment, people responded at the ballot box. In the elections of 1866, the radical Republicans gained more strength in Congress – so much so that they could override President Johnson’s vetoes.[51] Kraus tells us: “Upon the southern states’ final rejection of the Fourteenth Amendment, Congress proceeded to act on the assumption that there were no legal governments whatsoever in the South. Dividing former Confederate territory into five districts, it established early in 1867 a system of military rule that completely ignored all constitutional safeguards for state’ rights.
“All Johnson’s attempts to block this program were completely unavailing. His vetoes of the four Reconstruction Acts designed to implement it were overridden, and his influence still further whittled away by the passage of new measures to limit and restrict his executive authority. The President was virtually deprived of command of the army through an act stating that all orders were to be issued through the General of the Army, who was protected from removal, and even his control over members of his own cabinet was undermined by a Tenure of Office Act making their dismissal impossible without senatorial approval.”[52] The radical Republicans were so angry at Johnson for his mild policies toward the south and his efforts to hinder their own reconstruction policies that they savaged him in the press but he stood his ground and returned barb for barb. When he tried to dismiss his Secretary of War, the radicals instituted impeachment proceedings against him and he came just one vote shy of being dismissed from office.[53] Meanwhile, the army generals proceeded with reconstruction. Kraus tells us they: “removed six of the state governors, dismissed thousands of local officials, purged the legislatures of their more conservative elements, and flagrantly disregarded the civil rights of southern whites in preparing the way for the establishment of new state governments, to be chosen through universal suffrage, which would carry out the policies favored by northern Radicals....They disenfranchised all Confederate leaders, gave the Negroes the vote, and established complete equality of political and civil rights.”[54] After all of this, once those states adopted the 14th Amendment, their state Representatives were finally allowed to be re-seated in the national Congress. Kraus continues: “The constitutionality of this entire program could be questioned. However, Congress was prepared if necessary to override the Supreme Court and the latter consequently followed a very cautious policy. When Georgia sought an injunction in 1867 against enforcement of the Reconstruction acts, it dismissed the suit on the ground that the Court had no jurisdiction in what was essentially a political question. In another instance [the McCardle case] where there appeared to be a possibility that the Court might intervene, Congress actually passed a law removing the case under consideration from the Court’s jurisdiction.”[55] (emphasis added) Concerning this, Westel W. Willoughby tells us: “In Ex parte McCardle the court declined to take appellate jurisdiction because of the enactment by Congress of a law which it was well known had been passed for the express purpose of preventing the court from questioning the constitutionality of certain measures which the Federal Government had taken for the ‘Reconstruction’ of the Southern States after the termination of the Civil War. ‘We are not at liberty,’ said the court, ‘to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.’”[56] In that case, “It appeared that the petitioner [McCardle] was not in the military service of the United States, but was held in custody by military authority for trial before a military commission, upon charges founded upon the publication of articles alleged to be incendiary and libelous, in a newspaper of which he was editor.”[57] The custody was alleged to be under the authority of the Reconstruction Acts discussed above. McCardle filed for a writ of habeas corpus to the federal courts to try to get released from state custody. After hearing oral argument and while under consideration by the Court, Congress passed an Act (over the veto of President Johnson) denying the Supreme Court appellate jurisdiction over cases arising under the Reconstruction Acts. The Court stopped all further consideration of the case saying it lacked jurisdiction because Congress had exercised its regulatory power over such jurisdiction under the constitutional language from Article III, Section 2 quoted at the first of this section. Whether one likes or dislikes what the radicals did regarding reconstruction, we have a clear example of Congress asserting its authority to regulate the Supreme Court’s appellate jurisdiction and the Court complying with that regulation. Recently, the Supreme Court refused to hear a case by a man named Newdow who was trying to get the Court to declare it to be unconstitutional for schools to make their students recite the Pledge of Allegiance because he argued that the phrase “one nation under God” violates the separation of church and state idea. It did not hear the merits of the case but dismissed it simply because the plaintiff lacked standing to raise the issue – he did not have custody of the child he purported to represent.[58] It vacated all lower court rulings in the case for the same reason thus, at least temporarily, allowing schools in the 9th Circuit to again lead their students in the recital of the Pledge when the 9th Circuit earlier said they couldn’t. It is highly likely that somebody somewhere with standing will again bring such a case in federal court. Might it not be possible that the Supreme Court would then agree with the separation of church and state argument and rule the way the 9th Circuit did which effectively banned the use of the Pledge? What if in anticipation of that possibility, Congress passed a law saying that there was no federal jurisdiction whatsoever over the matter – thus allowing schools to continue their practice – and specifically denied any appellate jurisdiction over the matter to the Supreme Court? This, Congress could do according to the above quoted language in the Constitution and the McCardle case holding. The Supreme Court would have no original jurisdiction over the matter since no state would legitimately be a party to such litigation – only local school boards. And Congress is totally in control of the Supreme Court’s appellate jurisdiction. Thus, the Pledge issue would remain solely within the province of the state and local governments where it should be. If any federal court ruled contrary to such clear Congressional intent, there could very easily be enough political ire to prompt a repeat performance of the foregoing line of cases where the ruling would simply be ignored by the coordinate branches of government as a political checking mechanism over judicial abuse. In Direct And Open Fights With The Other Political Branches, The Courts Generally Back Down In referring to Congress’s refusal to go along with President Franklin Delano Roosevelt’s proposal to increase the membership of the court and then pack it with judges who would be in philosophic agreement with the idea of expanding federal power, Ducat and Chase observed: “To be sure, Congress’s unwillingness to acquiesce in the Executive’s proposal spared the Court outright humiliation, but the ultimate decision to back down is in keeping with the overall pattern of other such confrontations. Under threats of impeachment and removal by a hostile Jeffersonian Congress, the Marshall Court chose to bite its tongue and tone down some of its Federalist excesses rather than to battle it out. The same behavior is equally descriptive of [the]... Court in the post-Civil War years when a Radical Republican Congress began taking away seats on the Court and shaving down its appellate jurisdiction. These episodes underscore the combative weakness of the judicial institution as compared to the other two branches. Faced with the prospect of decisive open confrontation, the Court will – because it has to – tuck its tail.... “In its retreat from such a confrontation the Court has three possibilities. It can ignore the irritating precedents that gave rise to the conflict. It can distinguish a case presently before it, thus pulling the teeth of the irritating precedents with a maximum of judicial grace and telegraphing to the antagonist that it has gotten the message and decided to retire from the battle. Finally, the Court can overrule itself, openly confessing it was wrong. This last option, however, is costly to the judicial image.”[59] Because in the face of open confrontation, the Courts have backed down in the past, we have never had to consider the final, and most extreme, option to check judicial usurpation, namely, revolution discussed below. Remember, with the Civil War, the political checking mechanisms applied by the Northern states against the Dred Scott decision, did not cause the North to try to secede from the Union. If anything, the exercise of those political mechanisms would obviate any secessionist tendencies by the North -- those political checking mechanisms were effective political pressure relief valves designed to minimize the need for armed resistance to judicial abuse, and in that case, they worked since despite prior threats by the North, it did not try to secede. Remember, it was the South who tried to secede, not the North. And as discussed above, the Northern political response to that decision was only one of many reasons behind the actions of the South. So it would be a very weak argument to blame the Civil War on the political checking mechanisms used by the northern states in response to the Dred Scott decision.
Revolution The most extreme and scary potential response to federal usurpation is outright revolution. Not only is the prospect of wholesale bloodshed very sobering, there is no guarantee that afterwards we would end up with something better than we had before. Nevertheless, the Federalist Papers say this is the ultimate remedy for federal abuse as indicated below. “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right to self-defense which is paramount to all positive forms of government....”[60] “The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them....Power being almost always the rival of power, the general government will at times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.”[61] (emphasis added) “...State governments...afford complete security against invasions of the public liberty by the national authority....they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.”[62] “If the federal army should be able to quell the resistance of one State, the distant States would have it in their power to make head with fresh forces. The advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed, and its resistance revive.”[63] “[In the event of federal despotism, the state militias would] direct their course...to the seat of the tyrants who had mediated so foolish as well as so wicked a project, to crush them in their imagined entrenchments of power, and to make them an example of the just vengeance of an abused and incensed people....”[64] “[Should the national military be used by the federal government to usurp authority,] State governments, with the people at their side, would be able to repel the danger....To these [a smaller-numbered federal army] would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by [state] governments pos | |||||||||||
