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April 16th, 2009

Constitutional Authority

checksandbalancesThe rift between some of the leading conservatives in the state over this court ruling has gotten a lot of us thinking about the separation of powers. In Craig Robinson’s article yesterday, the comments section focused on the authority of the courts. I don’t want to get into a negative argument on this; I just thought it best to toss out some situations and hopefully sound logic on this issue.

Bill Salier and Steve Deace have said many times on the radio that we should ignore the Supreme Court’s opinion because it is just an opinion and they have no authority to execute their ruling. Basically Salier is saying to the courts, thank you for your opinion but that is all it is and we’re going to ignore you. I realize that sounds great. It gets you all fired up to hear that because defiance is a conservative’s favorite word. But, what exactly are the consequences?

If we ignore the court’s ruling, as Salier and Deace suggest, who has the authority to decide if a law is constitutional or not? If the legislature passes a law to strip our 2nd Amendment rights, and the courts decide that law is unconstitutional, as they should, are we to ignore that decision as well? True the courts have no authority to execute or rewrite law, but since 1803, 16 years after the U.S. Constitution was signed by our Founding Fathers, the courts, by precedent have jurisdiction on matters of constitutionality of laws passed by the legislature. I realize that Marbury v. Madison can be defined as judicial activism but without that ruling and the precedent from that case, we would have the legislature and the executive branch deciding if their own laws are constitutional. Is that what we want? Is that what the founders intended? For the best explanation of the jurisdiction of the courts, click this link and scroll down to the last 10 paragraphs. Chief Justice Marshall explains how the courts, under the constitution, have authority to decide if a law is constitutional. For those who don’t have the time to click the link, I’ve pasted part of his decision here.

“So if a law be in opposition to the Constitution: if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”

You can take that for what it’s worth and I imagine Salier and Deace are going to say since Chief Justice Marshall was a judge, of course he would rule to give that power to the judiciary. My question still comes back to, if the courts don’t have authority to decide if a law is legal or constitutional, then who is the final authority? I’ve heard Salier and Deace say it is the people who are the final authority and they can chose to ignore the ruling. But if that is true, the people can, just by a vote in the legislature, strip our 2nd Amendment rights. Also, our rights would be forever fluid and therefore not rights at all.

Now please don’t get me wrong, the Supreme Court’s decision is unconstitutional. But not because they don’t have the authority to decide if a law is or is not constitutional. It is unconstitutional because they gave a right for a behavior that is not granted in the Constitution nor Iowa or U.S. code. We discriminate for or against behavior with every law written – there is nothing unconstitutional about that. The courts overstepped their bounds by granting rights to behavior that aren’t explicitly written in the U.S. Constitution, Iowa Constitution, or Iowa code. That is the definition of judicial activism and legislating from the bench.

The next question this presents is, who has final authority over the courts? This is where everybody agrees. The people have final authority and to exercise that authority we have a few options. We can impeach the judges, pass an amendment to the Constitution, remove jurisdiction over this matter, and/or limit the courts to 3 Supreme Court justices. Nowhere in the Constitution does it say we can ignore court decisions if we chose to.

I didn’t write this to create a stir among conservative circles. I, like many of you, find this very interesting and also want to develop a better understanding of the separation of powers. I completely understand where Deace and Salier are coming from. Gay marriage is wrong on so many levels and sometimes emotion tends to trump logic. And, of course, there is that possibility they are right. If they are, and the courts don’t have authority to determine if a law is constitutional, will enough of us stand up to that decision? Is there any way to get the public to understand Salier’s logic or legal argument?

Americans have respect for the courts, although it is diminishing due to rulings like this. But, we believe the courts, whether this is constitutional or case precedent, have the authority to decide constitutionality of legislation. Is it not living in fantasy land to think, assuming the premise Deace and Salier are right, that the people will accept that premise as well and further more stand up against gay marriage or any other ruling of the courts? Or are they running us down a road of certain defeat?

As you know I don’t accept their premise because I do believe the courts have authority to decide the constitutionality of a law. As Chief Justice Marshall wrote, “this is of the very essence of judicial duty.”


About the Author

Constitution Daily
An Iowa based blog with the purpose of giving incentive to those actively engaged in conservative causes. Content will include Iowa and national issues ranging from politics to everyday society, but in every case you will know where Constitution Daily stands. Please feel free to contact me anytime at constitutiondaily@gmail.com.




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