What does “unconstitutional” mean?
Whenever someone disagrees with a bill passed by Congress or signed into law by the President, they tend to say “that’s unconstitutional!” Many people who say this have never even read the Constitution, much less the cases that define the words in it. And that’s fine. It’s scary that they vote, but that’s fine.
When the Supreme Court, however, makes a controversial ruling, people do the same thing. ”That’s unconstitutional!” And that’s not fine. Those people are wrong even when they’re right.
Before I even get started, let me explain that while I’m not happy about what I’m about to say – it’s absolutely true.
If the Supreme Court says something is not a violation of the constitution, then it isn’t. Period. Even if they’re wrong, they’re right. How can that be?
The Constitution, Article III, Section 1 says, in part:
“The judicial Power of the United States, shall be vested in one supreme Court …”
The judicial power, in this country and others, has always been to interpret the law. Remember that from school? The legislative branch makes the law, the executive branch enforces the law, and the judicial branch interprets the law. In fact, the most important question the Supreme Court ever answers is not “guilty or not guilty?” – it is “does this law even apply to this situation?” In order to answer that question, they have to decide what the words in that law, often the Constitution, mean. While that question may seem clear cut to you and I, we’re not talking about you and I …
So, if the Constitutional duty of the court is to interpret the constitution, then what the Court says is constitutional IS constitutional – according to the Constitution itself. They may be wrong, but they are NOT in violation of the Constitution until WE THE PEOPLE change the Constitution or the Court changes its mind.
Look at it this way … if a woman says, “not tonight honey, I have a headache” she HAS a headache, even if she doesn’t. Got it?
There are essentially two checks on the Court’s potential abuse of power:
- The composition of the court. It’s an odd number for a reason – that way there can be no ties. Plus, since Justices are appointed by Presidents of varying political parties, the political distinctions between them ensure they don’t always agree.
- When dealing with Constitutional issues especially, the Court has to confine its decisions to the words in the Constitution and the cases that define those words. While they can override those other cases, they cannot simply change the constitution. That power lay primarily with the people (and yes, I realize I’m simplifying the amendment process a bit).
Some of you are angry. Good. I want you to be angry. Why?
Because, the President will be submitting a name to the Senate (and the People) very soon. You may like the President, and you may think he’s a Kenyan born socialist with ties to the Antichrist. That is irrelevant in this case. What matters is that you pay attention to the name and find out how that person has ruled on the issues that matter to you – regardless of your political affiliation.
Someone appointed to the Supreme Court is under NO obligation to do what the President who appoints them wants them to do – as many Presidents have found out to their own chagrin. Once appointed, they can vote the way they wish, and most often do. The President IS going to have this nominee so the idea of holding out until a Republican takes office, if you have that notion, is not a realistic one.
Instead, educate yourself, and once you have formed an informed opinion – let your Senator know how you feel and why. I’m not telling you how you should feel about the nominee – how could I? The name isn’t even announced yet. But if you care about the Constitution, you need to listen, learn, and act (by talking to your Senator).
Oh – and for God’s sake, DON’T listen to FOX or MSNBC (or anyone who has a radio show) when it comes to finding out what the nominee has or has not done. The Sotomayor confirmation process, if nothing else, showed us all that those two networks in particular are full of crap. CNN wasn’t much better, but they at least made an attempt to stay neutral for the most part. BBC did a surprisingly good job.
I listed two checks on the Court’s power to abuse the Constitution above – 1) the composition of the Court; and 2) the process of amending the Constitution. While we, in theory, always have the possibility of getting an amendment passed, it’s not very likely. But it’s only rarely that we get a chance to affect the composition of the Court. We will have one of those moments soon. Don’t let it pass you by.
Maybe the BBC did such a good job because they have no sin in the game? Just a thought.
I meant skin, but maybe sin works too.
Well, I’ve been thinking this over and I can’t agree with some points. The Constitution IS the supreme law of the nation. It needs no interpretation as it stands very clear on the delegations of power and responsibilities. The Supreme Court was designed to ensure the laws passed by the legislative branch were in conformation with the Constitution. Individuals selected to the Supreme Court reflect the executive preferences and tend to vote that way. Note the history of the decisions of the court through the Lincoln period forward through the Roosevelt period. Also note the divisiveness of the Jacksonian period with the Supreme Court of that day.
Now, I believe your main point here was to urge your readers to influence their representatives to ensure a selection for the Supreme Court that was more conservative and more traditional to the Constitution. I agree with this position and wholeheartedly endorse such a proposition. The “progressive” socialistic pathway this nation has been on for the last one hundred years has only led us to almost complete ruination. A simple reading of the Anti-Federalist papers reveals that we have enabled the most glaring fears of those founding fathers who railed against a centralist form of government. Today we are paying the price of not listening to those warnings and letting our liberties slip away gradually through inattention and apathy.
I can only hope that the nation can be restored to the guiding light of the Constitution as it was written and as it should be enforced. The alternatives are both horrendous and bloody to an extent as to rival the worst in history.
YeOldFurt
We are in agreement that the Constitution is the supreme law of the land. We are not in agreement at all about whether it needs interpretation, whether that interpretation has to do with the delegation of power and responsibility in the Constitution, or virtually any other issue. But I don’t think the need for interpretation is a bad thing. It’s that need for interpretation that makes our Constitution so strong. That’s why it has needed so few amendments, comparatively, to other similar governing documents in the World. It’s an exceptionally flexible document and it was made that way intentionally.
I see your point about the Court reflecting the executive preferences of the President who appoints them, and while that is generally the case, there are a few examples of Presidents appointing Justices they think agree with them and then that Justice having a philosophical change of heart (as perceived by the public) or interpreting the Constitution “correctly” as that Justice sees it, and happening to disagree with their appointer’s position.
I would never tell anyone what philosophical leaning to endorse politically. That’s not my place. My main point was for people of all political persuasions to get involved. No matter what your political leaning, think about what kind of Justice best serves the Country and tell your Senator how you feel and why. Personally, I’m as wary of a Conservative super-majority as I am a Liberal super-majority. But the only thing I fear more than the one party dominating the stage, is both parties having the same ideas. Our government works best (that is to say least) when it is slow-going and divided ideologically. Otherwise, they tend to get things done – and with a few notable exceptions that’s problematic.
Honestly, I’d rather see an ultra-liberal Justice appointed. I think the Court does its best work when it’s a 5-4 split.
The Constitution IS THE SUPREME LAW OF THE LAND, period, end of discussion. If the Supreme court ruled that the sky is orange, does that make it so? If they cannot read simple english like “SHALL NOT BE INFRINGED” and rule that some regulations/restrictions (infringements) are ok, then they are 100% in the wrong and need to be fired/removed from the bench. The constitution is NOT flexible, and was never intended to be.
Against my better judgment, I’m going to indulge this discussion despite the fact that it’s outside my main point: get involved.
Let’s loom at the language you quote, “shall not be infringed” and the adjacen language “the right of the people to keep and bear arms” because it proves my point.
Just some of the questions the Supreme Court has needed to address because of the limits of language:
What does it mean to keep?
What is included in the term bear? Brandishing a weapon at a police officer without justification part of bearing?
What are arms? Nuclear weapons? Jet fighters?
Who are the people? Just citizens?
Infringed means what? If the government regulates the sale of arms to licensed dealers but doesn’t limit to whom they are sold, is that an infringement?
What about the 9th Amendment?
“The enumeration in the Constitiution of certain, rights, shall not be construed to deny or disparage others retained by the people.”
Without the Court to answer the question of what qualifies as an right under this amendment, it means absolutely nothing.
I’ll say it again, the Court is PART OF THE CONSTITUTION, and their job is to define the meaning of the words within. If you reject that part of the Constitution and its results, then you must reject the Constitution as a whole. It’s an all or none document.
Keep in mind, you and I most likely agree on the 2nd Amendment issue, and I certainly don’t agree with every ruling the Court has made on that issue or any other, but the Constitution has empowered the Court in such a way that the Court can be both wrong and Constitutionally correct – until someone either changes the Constitution or the Court changes its ruling.
That’s a fault of the Framers, not with me. I’m just reporting the reality.
My point, again, is that you have a chance to make a change – don’t waste it.