- The Washington Times - Monday, January 24, 2011


It is clear that the Founders intended the three branches of the federal government to have equal responsibility for ensuring that all bills passed into law are constitutional. It also is clear that they and the authors of the Federalist Papers intended that the Supreme Court have final authority to determine if a law fits this criteria. Although this might appear to some as contradictory, it is not, given that there can’t be more than one final authority.

The Founders did not, however, intend this to give the Supreme Court supremacy over the other two branches concerning the meaning of the Constitution. It was recognized that judges - being fallible human beings - could err either by deliberately inserting their own interpretation of what the Constitution should mean (thereby politicizing the court) or by including facts or decisions in their opinions that are outside the mainstream of American jurisprudence (considering foreign law, for example). The Constitution provides these remedies for judicial malpractice:

Article III, Section 1 provides: “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” In my opinion, an essential element of good behavior is strict adherence to the oath of office. The oath of office should be amended to state “… to the best of my ability, preserve, protect and defend the Constitution of the United States as originally ratified and subsequently amended.” This might seem redundant except that it hasn’t prevented Justice Ruth Bader Ginsburg and others from advocating that foreign law has applicability to decisions of the Supreme Court.

Article III, Section 2, after defining the Supreme Court’s original jurisdiction, states, “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and other such regulations as the Congress shall make.” This, in my opinion, gives Congress the authority to limit the scope of the court’s appellate jurisdiction when it becomes apparent that the court is exceeding its authority by making new law (law that has not been enacted by Congress and signed by the president) or by finding authority in the Constitution that is not apparent in the plain English of the document. Some might say that it takes a justice of the Supreme Court to determine what the plain English says. I disagree. The Constitution is written in ordinary, direct and easily understandable language that says what it means and means what it says.

It is the function of the court to interpret the Constitution as it applies to specific laws. It is not the function of the court to interpret the meaning of the English so that it puts words in the Founders’ mouths and by so doing allows an interpretation that supports a political, ideological or philosophical agenda of a justice. The Supreme Court is not the supreme branch of the federal government.


Fairfax, Va.

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