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What Is the Remedy When the Supreme Court Exceeds Its Constitutional Authority? (version 2)
Raymond Richman, 7/1/2015

The Constitution of the U.S. made no provision for judicial review of federal or state legislation. Articles III, of the Constitution of the U.S. created the federal judicial system, but made no provision for declaring unconstitutional Congressional legislation or Presidential actions. In the  case of Marbury v. Madison (1803), the Supreme Court  arrogated to itself the power to declare actions of the President and the Congress and the several states unconstitutional. But the power is not unlimited. The Court has no power to legislate as it has done in cases stemming back to Pres. F. Roosevelt when the President attempted to pack the Court. It has the power to interpret laws and the constitution when there is ambiguity in the letter of the law or conflicting legislation. The President and the Congress are entitled to challenge any excessive arrogation of power.

Amendments to the Constitution have weakened the States. The U. S. constitution created a republic with the federal government having limited powers with all rights not granted to it being reserved to the states or to the people under the 10th amendment. The first of the amendments to weaken the States was the 14th amendment ratified in 1868. Section 1 recites that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Of course, the Civil War denied the States the right to secede from the union. The 14th Amendment went further; it reduced the rights of states even those that had not attempted to secede. The Supreme Court in its making marriage between homosexuals indicates how much this amendment weakened the States, 32 of which have laws banning marriage among homosexuals.

The States created the Constitution and established a republic. The States and the Federal Government were not created co-equal. The States retained the power to determine the members of the Senate. Until the 17th Amendment was adopted in 1913, the legislatures of the States appointed the members of the Senate. That amendment marked the end of any state control over the actions of any branch of the federal government.

The Federal Government remained subordinate to the States in one area, taxation. Article 1, Section 2 of the Constitution originally provided that, “Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers…”. The Supreme Court interpreted direct taxes to include income and property taxes. The 16th Amendment changed this by providing that “Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.” The unintended consequence was to increase the power of the federal government versus the States. States could impose income taxes but had to be mindful that they were competing with other states, some of which levy no income tax at all. The Federal Government was enabled through conditional grants to bend the states to its will in a number of areas, particularly in education and public housing and urban development, areas normally the province of the States.   

The recent decisions upholding the Affordable Care Act and making state prohibitions against marriage among homosexuals show the court behaving in a manner totally contrary to that envisioned by the writers of the original constitution. In the first case, the court ignored the actual language of the law and in the second, the Court invaded an area entirely in the province of the States. Prior to 1962, oral and anal intercourse among homosexuals was a felony in every State. In 1962, lllinois became the first state to legalize consensual sodomy. Other states followed or reduced the penalty. In 2003, the Supreme Court ruled in a Texas case that same sex sodomy was protected by the due process clause of the 14th Amendment, which restricted the power of the states.

The USA can hardly be considered a republic any longer. The end of the U.S. as a republic began with the passage of the 14th Amendment and the 16th and 17th Amendments added nails to the coffin.

The Supreme Court's actual authority is only as deep as the willingness of the other branches of government to accept its decisions. What can the States and American citizens do about the encroachment on legislative power which these decisions of the Supreme Court, which are themselves unconstitutional, demonstrate.

The States still have the authority to amend the Constitution under Article V. All it requires is two-thirds of both Houses of Congress to propose an amendment to the Constitution and three-fourths of the States to ratify it. It is time to reign in the abuse of the power of the Supreme Court of the United States. Keeping in mind that the Senate was created to protect the interests of the States, language such as the following might be included in the proposed amendment, “No decision of the Supreme Court of United States in which twenty percent or more of the justices dissent shall be entitled to the full faith and credit of the several states without a vote indicating the concurrence of three-fourths of the members of the Senate.”


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