While attending a series of interviews of political candidates yesterday evening, a panel member questioned candidates on the authority of the Supreme Court of the United States.
One of the candidates said a Supreme Court opinion (most often called a ruling) is “the supreme law of the land”. A second candidate agreed. I did not.
What is the legal definition of the Supreme Law of the Land. The question and the responses begged two questions not asked:
- What is the legal definition of the Supreme Law of the Land?
- What is the fundamental role of the Judiciary
The Supreme Law of the Land Defined
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The U.S. Constitution, Article VI
Opinions of the Judiciary (all courts from your town to Foggy Bottom) are not the Supreme Law of the Land if said opinions do not align with Article VI. All judges are bound by Article VI to submit to the clearly-defined Supreme Law of the Land.
The Fundamental Role of the Judicary
The fundamental role of the Judiciary is to settle disputes. As Lady Justice would say, all judges are obligated to the fair and equal administration of the law, without favor, greed, or prejudice.
“The judicial Power shall extend to all Cases, in Law and Equity … to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” The U.S. Constitution, Article III, Section 2
Words have meanings. What is the meaning of controversy? “a prolonged public dispute, debate, or contention; disputation concerning a matter of opinion”
A controversy is a public dispute that is not quickly resolved to the satisfaction of the parties to the dispute.
A criminal case – A prosecutor charges an individual with a violation of law; the defense lawyer disagrees. Both parties present evidence, facts, and testimony. A court of law settles the dispute under a fair and equal administration of the law, without favor, greed, or prejudice.
A civil case – A plaintiff claims an offense to his person or his property by the defendant. A court of law settles the dispute under a fair and equal administration of the law, without favor, greed, or prejudice.
In either a criminal or a civil case, either party can appeal to a higher authority. But, this is a discussion on the principle of appeal for another time.
The U.S. Constitution does not authorize the judiciary to create law, only to administer justice under laws created by lawmakers, but it does authorize the Judiciary to opine on controversies before a court as to the appropriate administration of the Supreme Law of the Land.
In the Supreme Court case of Marbury v. Madison, Chief Justice John Marshall assumed authority not explicitly prescribed in the U.S. Constitution. A simple reading of our Constitution, specifically Article VI, does not authorize the Judiciary to create law out of thin air.
A lawyer friend and I briefly discussed the matter of judicial review. He noted how judicial review has been accepted for over two hundred years. I point to the constitutional definition of the Supreme Law of the Land in Article VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Parting Shot – ObamaCare
When the Affordable Care Act (ObamaCare) was crafted by the Democrat majority in both houses of Congress and signed into law by President Obama, the act levied a fine on persons who refuse to submit to the law.
The dispute went before the Supreme Court where a majority sided with the Obama administration. The argument by the defendant (the Obama administration) was the fine was not a fine but a tax authorized by Congress. Chief Justice Roberts rescued ObamaCare by declaring the fine is a tax. Roberts effectively rewrote an act of Congress.
In the infamous case of Roe v. Wade in 1973, the Supreme Court created out of thin air a new ‘constitutional right to privacy’ as a basis for legalizing the slaughter of over 60,000,000 Americans who never saw the light of day.
Progressivism is not a new feature of American government but has been present in every generation from the foundation of our country. The first Chief Justice set the bar for unconstitutional judicial activism in 1803.
Elections have consequences.