The Senate
hearings regarding the confirmation of Judge Samuel Alito to the
Supreme Court demonstrated that few in Washington view the Constitution
as our founders did. The Constitution first and foremost is a
document that limits the power of the federal government. It prevents
the president, Congress, and the Supreme Court from doing all
kinds of things. But judging by last week's hearings, the Constitution
is an enabling document, one that authorizes the federal government
to involve itself in nearly every aspect of our lives.
The only
controversy, it seems, is whether the current nominee will favor
the power of one branch over another, or the preferences of one
political party over another. Last week's hearings were purely
political, because the role of Supreme Court justices has become
increasingly political.
Nearly all
of the Senators, witnesses, and Judge Alito himself spoke repeatedly
about the importance of respecting Supreme Court precedents. The
clear implication is that we must equate Supreme Court decisions
with the text of the Constitution itself, giving them equal legal
weight. But what if some precedents are bad? Should the American
people be forced to live with unpopular judicial "laws"
forever? The Constitution itself can be amended; are we to accept
that Supreme Court rulings are written in stone?
Also troubling
was the apparent consensus among both the Senators and Judge Alito
that Congress has no authority to limit federal court jurisdiction
by forbidding it to hear certain types of cases. This is completely
false: Article III Section 2 of the Constitution plainly grants
Congress the authority to limit federal court jurisdiction in
many kinds of cases. It is perfectly constitutional for Congress
to pass court-stripping legislation to reflect public sentiment
against an overreaching Supreme Court.
We're being
told two very troubling things:
First,
Supreme Court decisions are the absolute law of the land, equal
in weight to the text of the Constitution itself. Supreme Court
precedents should never be changed, and all nominees to the
Court must accept them as settled law or be disqualified.
Second,
if the American people don't like any of the "laws"
created by the Supreme Court, they have no choice but to live
with them unless by some miracle the Court later overturns itself.
The people have no recourse through Congress to address unpopular
Court decisions.
The ramifications
of these assertions are very serious. They mean the Supreme Court
not only can invalidate the actions of Congress or the President,
but also craft de facto laws that cannot be undone by the people's
elected legislators! This is wildly beyond the role of the federal
judiciary as envisioned by the founders. They certainly never
intended to create an unelected, lifetime-tenured, superlegislature.
Our
federal courts, like the rest of our federal government, have
become far too powerful. When federal judges impose their preferred
policies on the American people, the ability of average citizens
to influence the laws under which they must live diminishes. This
is why every American should read or reread the Constitution and
the Federalist Papers. Only when we understand the proper role
of the judiciary in our federal system will we stop viewing judges
as purveyors of social, political, and economic rules for our
nation.