Supreme Court Building

We’ve heard a great deal over the years about how the rulings of the Supreme Court are “the law of the land.” The Obergefell v. Hodges decision, in June 2015, creating a “right” to same-sex “marriage,” brought a cascade of “law of the land” pronouncements. Even before the decision, Florida Senator and Republican presidential candidate Marco Rubio said if the court ruled in favor of same-sex marriage “that would be the law of the land that we would have to follow.” In the immediate wake of Obergefell, neurosurgeon and Republican presidential candidate Ben Carson responded, “While I strongly disagree with the Supreme Court’s decision, their ruling is now the law of the land.”

When in July 2015 Rowan County, Kentucky, clerk Kim Davis chose to obey the constitution and laws of Kentucky instead of the five-day-old Supreme Court edict, more public figures took up the “law of the land” mantra. Real estate mogul and Republican presidential candidate Donald Trump said, “You have to go with it. The decision’s been made, and that is the law of the land.” Former Florida governor and Republican presidential candidate Jeb Bush tried hard to have it both ways but didn’t question the Supreme Court’s right to write law. “She is sworn to uphold the law,” Bush said, speaking of Davis, “and it seems to me that there ought to be common ground, there ought to be big enough space for her to act on her conscience and–now that the law is the law of the land–for a gay couple to be married in whatever jurisdiction that is.” South Carolina Congressman and Republican presidential candidate Lindsey Graham was less equivocal. The Obergefell decision, Graham said, “is the law of the land until the Supreme Court changes their decision or there’s a constitutional amendment overriding that decision.” Republican Senate Majority Leader Mitch McConnell stated the will of the Supreme Court was “the law of the land.” Asked if Congress could do anything about it, McConnell replied, “I don’t think so. I think the courts have pretty well spoken.”

Is this true? Is the majority vote of nine unelected lawyers the law of the land? The American people, including most of our elected officials, have been taught to believe that it is. But the men who wrote the Constitution did not believe that.

Back in Philadelphia in 1787 the Constitutional Convention considered the question of what influence, if any, the Supreme Court should have on the making of laws. A number of the delegates, including James Madison, floated the idea of creating a Council of Revision, to be composed of the President and at least some members of the Supreme Court. The council’s job would be to consider bills passed by Congress and veto them if they were unconstitutional. Congress would have been able to override the veto just as it can override the president’s veto today. The purpose was not only to prevent the passage of unconstitutional laws but also to prevent judges from rewriting the law from the bench. If the judge had his chance to veto the law, or had his veto overruled by a congressional super-majority, he would not be in a very good position to rule the law unconstitutional when it later came to his courtroom. Madison hoped to avoid the spectacle of judges refusing to apply a law they claimed was unconstitutional. No one imagined a judge ever claiming power to do more than that. No one dreamed of the Supreme Court issuing sweeping decrees re-writing the Constitution and trampling the laws of Congress and the states. The worst they could imagine was a judge simply declining to apply a law he thought was unconstitutional, and even that, Madison said, “can never be proper.”

In the end, the convention didn’t create the Council of Revision but left the veto to the President. The delegates trusted that judges would show restraint and obey the law. For many decades they did. Today, however, the Supreme Court wields powers the Founding Fathers never dreamed of giving to any branch of government, and our elected leaders, almost with one voice, proclaim the Court’s lawless decrees to be “the law of the land.” America has a serious problem with the Supreme Court. The Court is exercising power the Constitution never gave it, power the Founding Fathers never would have tolerated. That unconstitutional power must be broken.

In future posts I will show how that power grew and how it may be combated.