Stephanie
Diamond Member
- Jul 11, 2004
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Can the states fight against this latest ruling by the Supremes on same-sex-marriage? And to me this decision is stepping on the States rights which then steps on our rights in those states we live. I'm still confused about that.
this is a long article so you'll have to get the rest at the site if you're interested
SNIP:
by Paul R. DeHart
within Constitutional Law, Politics
July 8th, 2015
233 18 329
Decisions of the Supreme Court that go beyond power delegated to the judicial branch or are contrary to the Constitution are null and void. To protect our constitutional republic, citizens, states, and the other branches of the federal government must resist any such decision.
The Supreme Court looms large in American politics. In fact, many accept the claim—made by the Court and others—that the Supreme Court gets the final say as to what counts as law under our system of government. Judicial review is now bound together with the doctrine of judicial supremacy, crafted by Chief Justice Roger Taney in Ableman v. Booth—the case that infamously upheld the Fugitive Slave Act.
Together with Thomas Jefferson, Abraham Lincoln, Carson Holloway, and Robert George, I dissent from this view. Judicial supremacy is contrary to republicanism (that is, to popular sovereignty) and to constitutionalism (that is, to the rule of law rather than men). Indeed, the doctrine of judicial supremacy unravels the entire fabric of our constitutional order.
Several weeks ago, I entered this debate publicly by critiquing an argument proffered by Gabriel Malor. In a column at The Federalist, Malor criticized Governor Mike Huckabee’s claim that states have the right to resist or refuse to comply with decisions of the Court that extend beyond their jurisdiction under the Constitution. According to Malor, such a view is pure “gobbledygook.”
On the contrary, I argued, our founders and framers held that no act of the federal government—the Supreme Court included—that goes beyond power granted in the Constitution or that is contrary to its express prohibitions possesses the power to bind. Other actors—the legislative or executive branches, the state government, and even individuals—therefore have the right to ignore decisions of the Court that exceed its jurisdiction. I demonstrated that this was the position of the framers of the Constitution, including not only James Madison but also Alexander Hamilton, the principal architect of judicial review. And I maintained that constitutionalism and republican form depend upon affirming that decisions of the Court that go beyond power delegated by, or contrary to, the Constitution are null and void.
In reply, Malor made two points that will serve as my point of departure here. First, he maintained that Huckabee “is off in fringe territory” when he claims that “the Supreme Court . . . cannot overrule the other branches of government.” Second, he maintained that my rejection of judicial supremacy turned on a normative rather than a notional account of law. While I describe the way things should be, Malor describes the way things are. In our current climate, he thinks, it’s just not possible to resist the decrees of the Supreme Court, and to suggest that things could or should be different is simply nonsensical.
Could vs. Should
This argument obviously turns on the conflation of cannot with may not. Any intelligible claim that resistance to decrees of the Supreme Court is sheer nonsense logically must rely upon a normative or de jure claim. By installing a de facto proposition as the major premise of their argument, the proponents of judicial supremacy are able to claim no more than this: resistance to the Court cannot be made because it will not succeed. Resistance to the Court is wrong or nonsensensical just because such resistance is futile.
This claim sounds very much like the arguments of the Greek Sophist Thrasymachus or of the Athenians in Thucydides’ “Melian Dialogue.” As the Athenian representatives said to the Melian delegation, “Nature always compels gods (we believe) and men (we are certain) to rule over anyone they can control.” In short, might makes right. The Supreme Court cannot be resisted because it has power; justice is of no consequence here.
Making the major premise of the argument for judicial supremacy a de facto rather de jure claim renders the argument invalid. Even if it’s true that resistance to the Supreme Court will not succeed, it does not follow that such resistance cannot or ought not be undertaken. But even if the argument were not invalid, the major premise—that the Supreme Court cannot be successfully resisted—is demonstrably false.
The Weakest Branch
The proponents of judicial supremacy ignore the numerous instances in which Congress, the president, and the states have all very successfully resisted Supreme Court decisions—sometimes tragically, sometimes quite legitimately. According to Alexander Hamilton, in Federalist no. 78, the Supreme Court is the least dangerous branch of the federal government because it is far and away the weakest branch. It cannot even enforce its own decisions.
Advocates of judicial supremacy often make John Marshall’s opinion in Marbury v. Madison the cornerstone of their case. But everyone knows that one reason for the decision in Marbury—that section 13 of the Judiciary Act of 1789, which expanded the Supreme Court’s original jurisdiction to cases like Marbury’s, was unconstitutional—was precisely because Marshall knew Jefferson and Madison would (very successfully) defy any order from the Court to deliver Mr. Marbury’s commission to him. Marshall did not want the institutional weakness of the Court on full display, and so he rendered a decision that did not require Madison or Jefferson to do anything.
But let’s set the politics of Marbury to the side and consider a few instances in which the decisions of the Court were ignored by the coordinate branches of the federal government, by state governments, or by local governments and individuals.
In the case of Worcester v. Georgia, the Supreme Court held that Georgia law was not binding within the Cherokee Nation. Consequently, missionaries working with the Cherokee and not from Georgia could not be required by the state to take an oath of allegiance to Georgia. Thus the Court ordered Georgia to release two missionaries who had been arrested, tried, convicted, and imprisoned for refusing to swear allegiance to the state of Georgia.
The State of Georgia refused. In his annual message, Governor Wilson Lumpkin railed against the “fallibility, infirmities, and errors of this Supreme tribunal.” Shortly thereafter, the missionaries stopped pursuing legal proceedings in federal courts to compel Georgia’s compliance to the order of the Supreme Court that they be released. They did so precisely because of the Supreme Court’s failure to compel Georgia’s obedience to its decision, which President Jackson had no inclination to enforce. Instead, they appealed to Governor Lumpkin for a pardon, and Lumpkin granted their request.
This story clearly illustrates the inability of the Court to enforce its decisions—especially when the national executive sided with Georgia against the Court. In the Worcester case, the Court certainly lost.
Northern Resistance to the Fugitive Slave Act
all of it here:
The Unsoundness of Judicial Supremacy
this is a long article so you'll have to get the rest at the site if you're interested
SNIP:
by Paul R. DeHart
within Constitutional Law, Politics
July 8th, 2015
233 18 329
Decisions of the Supreme Court that go beyond power delegated to the judicial branch or are contrary to the Constitution are null and void. To protect our constitutional republic, citizens, states, and the other branches of the federal government must resist any such decision.
The Supreme Court looms large in American politics. In fact, many accept the claim—made by the Court and others—that the Supreme Court gets the final say as to what counts as law under our system of government. Judicial review is now bound together with the doctrine of judicial supremacy, crafted by Chief Justice Roger Taney in Ableman v. Booth—the case that infamously upheld the Fugitive Slave Act.
Together with Thomas Jefferson, Abraham Lincoln, Carson Holloway, and Robert George, I dissent from this view. Judicial supremacy is contrary to republicanism (that is, to popular sovereignty) and to constitutionalism (that is, to the rule of law rather than men). Indeed, the doctrine of judicial supremacy unravels the entire fabric of our constitutional order.
Several weeks ago, I entered this debate publicly by critiquing an argument proffered by Gabriel Malor. In a column at The Federalist, Malor criticized Governor Mike Huckabee’s claim that states have the right to resist or refuse to comply with decisions of the Court that extend beyond their jurisdiction under the Constitution. According to Malor, such a view is pure “gobbledygook.”
On the contrary, I argued, our founders and framers held that no act of the federal government—the Supreme Court included—that goes beyond power granted in the Constitution or that is contrary to its express prohibitions possesses the power to bind. Other actors—the legislative or executive branches, the state government, and even individuals—therefore have the right to ignore decisions of the Court that exceed its jurisdiction. I demonstrated that this was the position of the framers of the Constitution, including not only James Madison but also Alexander Hamilton, the principal architect of judicial review. And I maintained that constitutionalism and republican form depend upon affirming that decisions of the Court that go beyond power delegated by, or contrary to, the Constitution are null and void.
In reply, Malor made two points that will serve as my point of departure here. First, he maintained that Huckabee “is off in fringe territory” when he claims that “the Supreme Court . . . cannot overrule the other branches of government.” Second, he maintained that my rejection of judicial supremacy turned on a normative rather than a notional account of law. While I describe the way things should be, Malor describes the way things are. In our current climate, he thinks, it’s just not possible to resist the decrees of the Supreme Court, and to suggest that things could or should be different is simply nonsensical.
Could vs. Should
This argument obviously turns on the conflation of cannot with may not. Any intelligible claim that resistance to decrees of the Supreme Court is sheer nonsense logically must rely upon a normative or de jure claim. By installing a de facto proposition as the major premise of their argument, the proponents of judicial supremacy are able to claim no more than this: resistance to the Court cannot be made because it will not succeed. Resistance to the Court is wrong or nonsensensical just because such resistance is futile.
This claim sounds very much like the arguments of the Greek Sophist Thrasymachus or of the Athenians in Thucydides’ “Melian Dialogue.” As the Athenian representatives said to the Melian delegation, “Nature always compels gods (we believe) and men (we are certain) to rule over anyone they can control.” In short, might makes right. The Supreme Court cannot be resisted because it has power; justice is of no consequence here.
Making the major premise of the argument for judicial supremacy a de facto rather de jure claim renders the argument invalid. Even if it’s true that resistance to the Supreme Court will not succeed, it does not follow that such resistance cannot or ought not be undertaken. But even if the argument were not invalid, the major premise—that the Supreme Court cannot be successfully resisted—is demonstrably false.
The Weakest Branch
The proponents of judicial supremacy ignore the numerous instances in which Congress, the president, and the states have all very successfully resisted Supreme Court decisions—sometimes tragically, sometimes quite legitimately. According to Alexander Hamilton, in Federalist no. 78, the Supreme Court is the least dangerous branch of the federal government because it is far and away the weakest branch. It cannot even enforce its own decisions.
Advocates of judicial supremacy often make John Marshall’s opinion in Marbury v. Madison the cornerstone of their case. But everyone knows that one reason for the decision in Marbury—that section 13 of the Judiciary Act of 1789, which expanded the Supreme Court’s original jurisdiction to cases like Marbury’s, was unconstitutional—was precisely because Marshall knew Jefferson and Madison would (very successfully) defy any order from the Court to deliver Mr. Marbury’s commission to him. Marshall did not want the institutional weakness of the Court on full display, and so he rendered a decision that did not require Madison or Jefferson to do anything.
But let’s set the politics of Marbury to the side and consider a few instances in which the decisions of the Court were ignored by the coordinate branches of the federal government, by state governments, or by local governments and individuals.
In the case of Worcester v. Georgia, the Supreme Court held that Georgia law was not binding within the Cherokee Nation. Consequently, missionaries working with the Cherokee and not from Georgia could not be required by the state to take an oath of allegiance to Georgia. Thus the Court ordered Georgia to release two missionaries who had been arrested, tried, convicted, and imprisoned for refusing to swear allegiance to the state of Georgia.
The State of Georgia refused. In his annual message, Governor Wilson Lumpkin railed against the “fallibility, infirmities, and errors of this Supreme tribunal.” Shortly thereafter, the missionaries stopped pursuing legal proceedings in federal courts to compel Georgia’s compliance to the order of the Supreme Court that they be released. They did so precisely because of the Supreme Court’s failure to compel Georgia’s obedience to its decision, which President Jackson had no inclination to enforce. Instead, they appealed to Governor Lumpkin for a pardon, and Lumpkin granted their request.
This story clearly illustrates the inability of the Court to enforce its decisions—especially when the national executive sided with Georgia against the Court. In the Worcester case, the Court certainly lost.
Northern Resistance to the Fugitive Slave Act
all of it here:
The Unsoundness of Judicial Supremacy
