By Constitution Staff

In a recent discussion on the question of the death penalty in Oklahoma, the Oklahoman made a passing comment that it (the death penalty) will remain constitutional, until the Supreme Court says otherwise.

That one statement summarizes just how dangerously ignorant the editorial writers of the Oklahoman have become.

Perhaps the editorial writers of the Oklahoman should actually read the Constitution of the United States, and enlighten themselves. What could they possibly learn?

In Article I, Section 1, we read, "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." That seems plain enough. All power to actually make law is held by Congress, not by the Supreme Court, and not by the President. So, why do we often hear that Supreme Court decisions are the "law of the land?" Actually, a Supreme Court decision is the "law of the case," not the law of the land. Because one cannot appeal beyond the Supreme Court, its interpretation of the law and application of the law to a specific case sets a precedent. In other words, one can presume that the Court would rule a similar way in another similar case.

But, under the system of government created by the Constitution of the United States, it is not the job of the Supreme Court, or any other federal court to amend the Constitution by judicial fiat. Then, just what is the role of the Court, in regard to the Constitution?

The envisioned role of the Court was to hear cases arising under the Constitution, and apply the Constitution to those cases. It was no more to change the Constitution than the role of a football referee is to change the rules of the game of football. As the referee applies the rules of the game of football to an actual game, the role of the judge is to apply the fundamental law of the nation (the Constitution) to actual cases which come before them.

No judge has any authority whatsoever to amend the Constitution with the argument that it is a living document. We have a process of amending the Constitution, outlined in the Constitution itself. Under our federal system created in the Constitution, it takes both the federal or common government and the states to make any change in the basic law. The federal role is to propose a change, while it is the role of the states to ratify the proposed change. Absolutely nothing is said in the Constitution about the Constitution being amended by the Supreme Court, as the Oklahoman editorial so brazenly advocated.

Now, what the Supreme Court is supposed to do is refuse to apply any law passed by Congress, or any act of the President, which is unconstitutional, in cases which come before it. It is clear from the historical record that this was the understanding of the day in which the Constitution was ratified by the various state ratifying conventions. It is beyond absurd to believe the states would have ratified a document designed to make the states mere administrative units of the all-powerful central government.

In the Virginia ratifying convention, John Marshall, the future great Federalist Supreme Court Chief Justice, insisted that no state would ever be "called at the bar of the Federal Court...It is not rational to suppose that the sovereign power shall be dragged before a Court." Marshall said that the powers of Congress were enumerated and limited. Marshall assured the convention that should Congress try to make a law outside those enumerated and limited powers, federal judges would consider it an infringement of the Constitution that they were pledged to defend and "declare it void." (See Ratification by Pauline Maier).

Multitudes of examples exist of times the Supreme Court has failed to do its job, with a good recent example being the failure of the Court to strike down the clearly unconstitutional "ObamaCare." Justice John Roberts was reportedly more concerned with the "image" of the Court, and other such non-relevant criteria, and simply figured out a way to declare the act constitutional. Many, such as President Barack Obama contended before the Court's infamous decision in the ObamaCare case (National Federation of Independent Business v. Sebelius) that the Court should realize that ObamaCare was passed by a democratically-elected body, the Congress. Yet, he had no such qualms about attacking a law enacted by the democratically-elected Arizona Legislature.

"It is not rational to suppose that the sovereign power shall be dragged before a Court," said Marshall. Well, Justice Marshall, meet President Obama.

Instead of defending the Constitution from usurpations by the legislative and executive branches, as they took an oath to do, most of the federal judiciary all the way up to and including the Supreme Court, are co-conspirators in subverting the Constitution.

If anything, the Supreme Court and other federal judges have been trailblazers in the destruction of the Constitution. I recall remarking to a college government professor and law school graduate several years ago that it is unfortunate that the Constitution is not studied in law school. Oh no, he argued, We studied Supreme Court decisions and federal court decisions all the time.

Let that sink in.

They do not study the Constitution itself, but rather what some federal judge has said about the Constitution, or even worse, what some federal judge has said about what another federal judge has said about it. This sounds very much like the Pharisees of Jesus' day, who made their interpretations of Scripture on a par with the actual words of the Bible.

I recently read a letter to the Oklahoman that claimed the Constitution's Supremacy Clause makes Supreme Court decisions the Supreme Law of the Land. Actually, the Supremacy Clause makes the Constitution the Supreme Law of the Land, and any laws passed by Congress must agree with that document. It says nothing about Supreme Court decisions, because they are not the Constitution. That would be like saying the statements of the Pharisees is Scripture.

So, what should be done if federal judges fail to do their duty in failing to strike down federal laws or presidential actions that are in violation of the Constitution?

The Oklahoman proposes to tell us, tough. According to the position of the Oklahoman, no matter what the Congress does, the president does, the High Court does, no matter how blatantly they disregard the clear written words of the Constitution, states are to simply acquiesce, because, in their view, the federal courts are the place to take these disputes.

In 1798, Congress enacted the Sedition Act, which made it a crime punishable by imprisonment, heavy fines, or both, to criticize the President, members of his Cabinet, or the Federalist leaders of the Congress. There is no doubt that this law was a direct violation of the First Amendment enacted only seven years earlier.

"Congress shall make no law ... abridging the freedom of speech, or of the press," were the words of the amendment. Congress had clearly made such a law. So, opponents challenged their convictions of this "law" in the federal courts. Of course, the courts were filled with Federalist judges, who thought the law was within the bounds of the Constitution.

The Oklahoman position is that the opponents should have just accepted the courts upholding the Sedition Act, because, after all, in the Oklahoman position, freedom of speech and the press are constitutionally-protected individual rights until the Supreme Court says otherwise.

Well, Thomas Jefferson and James Madison (who had written the First Amendment, for goodness sakes!) refused to simply accept that the courts had amended away freedom of speech and the press. They wrote a series of resolutions (The Kentucky and Virginia Resolutions), which declared the Sedition Act nullified as unconstitutional.

Were Jefferson and Madison wrong? Should we simply tolerate the repeated violations of the Constitution at the federal level?

Perhaps this analogy will make the point. Let us say that John Baker and Jim Carpenter make a business contract. Sometime later, Mister Carpenter comes to believe that Mister Baker has violated the terms of the contract. When Carpenter raises this issue with Baker, Baker offers to hire his friend to interpret the terms of the contract. In fact, let us say he hires a partner in his business to interpret the contract.

That is absurd, you say. Certainly it is. But that is exactly what we are supposed to do whenever we have a dispute with the federal government. The Supreme Court and other federal courts are to interpret the dispute, even though they are part of the federal government. The same Supreme Court, now led by John Roberts, who has made it very clear that he is highly reluctant to ever reign in the Congress, while regularly dragging sovereign states into court, merrily striking down their laws. And John Roberts was appointed by a Republican president! The justices appointed by Democrat presidents are no better, and probably even worse.

The Constitution is the Constitution. If, by calling it a "living Constitution," it can be changed upon the whim of a black-robed judge, a Congress, or a president, without going through the provided-for amendment process, then we have no Constitution. It is not a living Constitution, but rather it is a dead letter. We just missed the funeral.