Replacing the Supreme Court with the Supreme President
What should President Bush do about the Supreme Court and its decision to extend Geneva Convention status to al-Qaeda?
What should President Bush do about the Supreme Court and its decision to extend Geneva Convention status to al-Qaeda? Forget the silliness of the decision: What should the president do about it about the decision? Now would be a good time to begin a national debate on whether the Supreme Court has the sort of authority to do the things that it does.
Most conservatives (people who know history) also know that the Supreme Court largely told itself that it had the power to interpret the Constitution under Chief Justice John Marshall. Less well known, however, is that federal courts themselves, except for the Supreme Court, exist purely at the pleasure of Congress and the president. A single statute could abolish all lower federal courts. Does that not indicate that the two elected branches – those connected with the language in the Preamble to the Constitution “We, the People of the United States…” is superior to federal judges?
The two previous American governments, the Continental Congress and the Articles of Confederation, both provided that the national legislature was the highest court in the land and had the power to overrule lower courts. Thomas Jefferson, who served two terms as president and who wrote the Declaration of Independence, believed that a simple majority vote of Congress could overturn any decision of the Supreme Court.
The Supreme Court was not viewed as a great success in the early days of the Republic. It was, in fact, viewed as something of a disaster. Its justices enforced the clearly unconstitutional Alien and Sedition Acts. The very first constitutional amendment after the Bill of Rights, the Eleventh Amendment, was specifically directed at the powers of the Supreme Court and all other federal courts (not an indication that the notion of judicial interpretation was going over too well with the people.)
Andrew Jackson and Abraham Lincoln routinely disregarded rulings of the Supreme Court. Jackson said “John Marshall has made his decision. Now let him enforce it!” Chief Justice Marshall could not enforce his decision and President Jackson won that battle.
Who should interpret the Constitution, if it needs to be interpreted? In 1832, President Jackson issued a proclamation which nullified South Carolina’s efforts to prevent the enforcement of federal revenue laws. His proclamation specifically interprets the Constitution and it reads like a judicial opinion, with citations and reasoning the meaning of the Constitution. Clearly, Andrew Jackson believed that he, not the Supreme Court, had the power to interpret the Constitution.
Decisions like Dred Scott and Plessy v. Ferguson are not just abominations, but these many bad decisions are worse than any acts of Congress or executive actions, with the possible exception of FDR’s rounding up of Japanese-Americans, which the Supreme Court originally sustained (our great protector!)
The reason that it took so long for blacks to receive civil rights in America was not because Congress failed to act promptly – it passed constitutional amendments and federal statutes in abundance in the latter half of the Nineteenth Century – but because the Supreme Court, one of whose members and later chief justices was a Democrat and past member of the Ku Klux Klan, kept striking down perfectly good civil rights legislation as unconstitutional.
So here is an issue for President Bush to tackle head on, perhaps after November when he has nothing to lose: deny the authority of federal judges to do all the things that they do; issue executive orders overruling judicial orders; convene a meeting of the National Conference of Governors to decide what they, as chief executives, can do to curtail the power of judges and try to reach a consensus on a proposed constitutional amendment to be introduced into the state legislatures to limit and define the power of all courts.
The American people are fed up with judges running their lives. Leftist propaganda and re-writing of history has created a myth of federal judges and the Supreme Court has been a great boon to our freedoms and a responsible organ of government. In fact, the whole federal judiciary is a failure and needs to be reigned in and reformed. Mr. President, throw down the gauntlet and begin the battle to reclaim government of the people, by the people and for the people.
Bruce Walker has been a published author in print and in electronic media since 1990. He is a regular contributor to WebCommentary, Conservative Truth, American Daily, Enter Stage Right, Intellectual Conservative, NewsByUs and MenÕs News Daily. His first book, Sinisterism: Secular Religion of the Lie by Outskirts Press was published in January 2006.
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