The legislative branch has the power to make law because the Constitution grants it. The executive branch has the power to enforce law because the Constitution grants it. And the courts exercise judicial supremacy -- where its decisions constrain not just its own branch but the other two as well, making it not a “co-equal” branch but a super-legislature/über-executive -- because ____________?
The answer has nothing to do with the Constitution. Rather, the Supreme Court unilaterally declared the power in the 1803 Marbury v. Madison ruling.
That’s right: Like an upstart seizing the reins in a palace coup, the Supreme Court assigned the Supreme Court its oligarchic power, all without the force of arms. It’s a nice con if you can pull it off.
This isn’t how our system is meant to work. A governmental branch derives its power from the Constitution -- not from itself. And how dangerous is this usurpation? Founding Father Thomas Jefferson warned in 1819 that judicial supremacy’s acceptance would do nothing less than make “our constitution a complete felo de se” -- a suicide pact. He explained:
For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this [judicial supremacy] opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation.... The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please….
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Any president, governor or legislator worth his salt would do his duty and tell usurpative judges to go pound sand. Some will say that this would set off a "constitutional crisis," but newsflash: we’re already experiencing a constitutional crisis. This occurs not when the Constitution is protected by bringing to heel those who trample it, but when that trampling is allowed to go unanswered.
By the way, you know who else apparently questions judicial supremacy? Barack Obama. He has shown willingness to ignore the courts; in fact, he has been so dismissive that a federal appeals court actually ordered the administration in 2012 to submit a letter stating whether or not it recognized the judiciary’s “power.”
Of course, Obama will defy constitutional laws; in contrast, “conservatives,” being conservative (as in reluctant to take bold action), won’t even ignore unconstitutional rulings. It’s an old story. Liberal-controlled localities have been nullifying (ignoring) federal immigration and drug laws for decades. But conservatives consider nullification -- even in the defense of legitimate freedoms -- some kind of radical action, despite Jefferson’s calling it the “rightful remedy” for all federal usurpation. And “conservative” justices tend to feel constrained by “precedent,” even the unconstitutional variety, yet don’t expect any liberal Scalia replacement to bat an eye at overturning constitutional precedent that contradicts the leftist agenda. Is it any wonder conservatives never saw a cultural or political battle they couldn’t lose?
One might say conservatives fight by Queensbury rules while liberals operate no-holds-barred, but it’s not even that. Though conservatives are allowed to throw punches, they prefer to stand and block and be a punching bag -- while the liberals throw sand in their eyes and kick off their kneecaps.
Calling the Court a “threat to American democracy,” Justice Scalia wrote in his Obergefell dissent, “[I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” We won’t talk the court out of its power-mad, usurpative bent. Only power negates power. It’s time to stop acting like impotent fools and start showing the Court how impotent it really is.Read more: http://www.americanthinker.com/articles/2016/02/did_justice_scalia_already_give_us_the_solution_to_the_problem_of_filling_his_seat.html#ixzz40Lnd18yb