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The ultimate arbiters of the Constitution are the American people.

It says so clearly in the 2nd Amendment.

Theoretically, a Supreme Court ruling can certainly be unconstitutional, and, in reality, many are. The problem is, there is no Constitutional mechanism which would allow another branch to declare the unconstitutionality of a Supreme Court ruling.

Barring a Constitutional Amendment allowing a check on the authority of the Supreme Court, a debate over the Constitutionality of a Supreme Court ruling is entirely academic.

H

“Could A Supreme Court Ruling Be Unconstitutional?”

That’s an easy one. The answer is YES.

Yes, the Court can rule in an unconstitutional manner. This is not even debatable.

The interpretation of the Constitution is not theirs by right of the Constitution. They abrogated it to themselves.

LOL

And watch the left push this issue because it now doesn’t like some of the rulings coming down. Of course for years they used the Court to legislate, but things have gone south for them and now watch them try to squirm out of Court rulings declaring something else is now required.

Yes. And the Constitution provides the check to the Executive who can refuse to enforce and Congress who can remove jurisdiction.

Barring a Constitutional Amendment allowing a check on the authority of the Supreme Court, a debate over the Constitutionality of a Supreme Court ruling is entirely academic.

I believe that any SC ruling could be explicitly overridden by an amendment.

It's not entirely hypothetical. For example I do not abide by USSC decisions with which I disagree. When it comes to some of them I am biding my time lest I be arrested, shot, deprived of property, that sort of thing, but someday they'll slip up and you won't believe what's going to happen.

There are tens of millions of people in this country who are quite willing to ignore the USSC and given time and opportunity hey express their displeasure through disobedience.

Bingo.

IMHO. In addition to a Constitutional Amendment, Congress could by law take away the Court's jurisdiction or possibly pass a law which trumps and reverses the Court.

I think that might work, but then again I'm not a lawyer.

The problem is, there is no Constitutional mechanism which would allow another branch to declare the unconstitutionality of a Supreme Court ruling.

Yes there is. It's called impeachment. The problem is that it's never used by Congress against the Supremes when the Supreme's ruling simply allows the ruling Establishment cover to do what it wants

But you would see immediate impeachment proceedings of the Supremes ever, for example, ruled that the Department of Education was unconstitutional and must cease to exist

Yes, Roe vs. Wade is unconstitutional. That ruling violates the 10th Amendment. The justices should have said that, since the Constitution doesn’t mention abortion, federal involvement, in that subject, is unconstitutional. They should have refused to listen to the case.

Gentlemen,

Yes, when the Supreme Court issues a ruling that is contrary to the text of the Constitution or any of its Amendments, that decision is unconstitutional. Like most lawyers in the nation, I was taught in law school that the Constitution is whatever the Supreme Court says it is.

It took me decades to unlearn that pernicious lie. It is amazing, when you think about it, that so many judges have also unlearned this lie. Of course, it is most important that the Justices on the Supreme Court not believe this lie,

This is also the reason I spent much time and effort to write my ten-part series on the Constitution, which is now in the process of being published in print and on the Net.

Congressman Billybob

First three in the series, "American Government: The Owner's Manual" are here, and also on FR

Latest article, "Smart as a Whip, Dumb as a Hoe Handle"

There wasn’t a method for the SCOTUS to declare anything unconstitutional until it reserved that power to itself in Marbury v. Madison.

The other branches could development similar tactics. They won’t, though. Too many years of deferring to the judiciary has legitimized its role as the final arbiter.

As others have said, an amendment is theoretically possible, but not practical.

The problem is, there is no Constitutional mechanism which would allow another branch to declare the unconstitutionality of a Supreme Court ruling.

Congress can also limit the scope of Supreme Court rulings.

>> I believe that any SC ruling could be explicitly overridden by an amendment.

Factually accurate, but clearly not feasible in a vast majority of cases — nor is it desirable that the Constitution itself becomes a platform for overruling the Court (over-amendment of the Constitution is not a good thing).

The Supreme Court can immediately and unilaterally declare the actions of Congress or the President unconstitutional ... and it takes a 2/3 vote of both houses, and 34-state ratification to overturn them? The process has been accomplished only 27 times since 1787, and only 17 times since 1791. That’s not a particularly practical check on the power of the Court.

H

Actually, there is a clear remedy which has been used at least seven times to my knowledge. Congress can restrict the jurisdiction of the Supreme Court and lower federal courts when it is satisfied that the courts cannot be trusted with a certain issue.

For the source of this corrective power, see Article III, Section 1, and Section 1, paragraph 2. I also discuss this in my series.

John / Billybob

Right on.

Congress could supersede a ruling by statute, but the problem would lie in a ruling that said a previous statute was unconstitutional. So, they might try to redraft the statute to comply with the SCOTUS’ take on the constitution. But, they couldn’t simply use a statute to override the ruling if the essence of it was previously held to be unconstitutional.

They could remove jurisdiction, but they won’t. It’s just a shame that a law that 536 people hold to be constitutional (Congress + the President) can be overruled by 5 justices. It doesn’t have to be that way, but it has been for a long time.

Has anybody read the article yet?

You are all missing the point here.

>> Yes there is. It’s called impeachment. The problem is that it’s never used by Congress against the Supremes when the Supreme’s ruling simply allows the ruling Establishment cover to do what it wants.

Impeachment is not a check on the power of the Judiciary branch ... it is a check on individual justices. It simply allows the removal and replacement of justices, but does not fundamentally change the power imbalance between the branches of government.

H

>> There wasn’t a method for the SCOTUS to declare anything unconstitutional until it reserved that power to itself in Marbury v. Madison.

True. Fundamentally, I think Marbury is good law. However, the power of an unchecked judiciary is a clear oversight of the founders (though many saw the potential for a problem).

Ultimately, I think it would be beneficial if there was a mechanism similar to a veto-override to declare a Supreme Court ruling unconstitutional. Perhaps either a 2/3 vote of both houses, or a 2/3 vote of one house, and a Presidential signature should be allowed to Constitutionally overrule the Court.

H

Thomas Jefferson (1820):

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.

“Theoretically, a Supreme Court ruling can certainly be unconstitutional, and, in reality, many are. The problem is, there is no Constitutional mechanism which would allow another branch to declare the unconstitutionality of a Supreme Court ruling.”

Not true. The SC is not the supreme branch. Theoretically, all three branches have an obligation to stay within the bounds of the Constitution, and to ignore actions of the other two which violate the Constitution. In practice, I’m not holding my breath. That would take more guts than our elected officials ever display.

The problem is, there is no Constitutional mechanism which would allow another branch to declare the unconstitutionality of a Supreme Court ruling.

We have three CO-EQUAL branches of government, there is nothing in the Constitution saying that ANY of them have the authority to declare something unconstitutional.

Ultimately, I think it would be beneficial if there was a mechanism similar to a veto-override to declare a Supreme Court ruling unconstitutional. Perhaps either a 2/3 vote of both houses, or a 2/3 vote of one house, and a Presidential signature should be allowed to Constitutionally overrule the Court.

I believe Robert Bork suggested just that in his book Slouching Towards Gomorrah.

Could A Supreme Court Ruling Be Unconstitutional?

Darnit! Why couldn't I have Test Questions like this when I was in H.S.

Answer = YES

Look no further than Kelo.

Or any majority opinion that was reached by citing foreign law. Or any other case that allowed Congress to overstep and abuse the limits of the Commerce Clause. (which is about 27 quintillion (18 zeros) since 1934) /s

Yes. And the Constitution provides the check to the Executive who can refuse to enforce and Congress who can remove jurisdiction.

BINGO!

Problem is that there has been little exercising of that authority of late!

If they did ask it you would have got it wrong.

If Kelo is unconstitutional why is it law?

Oh what is the use to ask you this question, if you didn’t understand it this before you made that ridiculous comment that you thought was so clever you will never know.

Read the article learn something.

Now I remember why I haven’t posted on FR for so long.

>> Not true. The SC is not the supreme branch.

“Theoretically” is nice, but in practice, they really are. Fundamental example ... if we elected a 100% pro-life Congress and Senate, and a pro-life President, they could not act to ban abortion because of a prevailing Supreme Court ruling. Barring a Supreme Court ruling to overturn Roe v. Wade, the rest of the government is entirely frozen out of the process — even though the ruling is clearly not based on Constitutional law.

The Supreme Court is very much an independent arbiter of “Constitutionality” ... and the fact that only the Court itself can overturn its decrees is a bit monarchical.

>> Theoretically, all three branches have an obligation to stay within the bounds of the Constitution, and to ignore actions of the other two which violate the Constitution.

The other two branches have a Constitutional obligation to abide by the rulings of the Court. Encouraging each branch to act on its independent interpretation of the Constitution could very much cause chaos. The Supreme Court ruled one way, but the President disagrees so he does whatever he wants — not a good precedent.

H

I think it’s feasible, and not particularly damaging in cases of clarifying or making explicit what was originally implicit in the Constitution. The Bill of Rights is an example of this.

Well, in reality the people get the court they deserve in the long run. It isn’t perfectly efficient and takes a long time, but if people elect Obama and he appoints two socialist judges, then the people get what they deserve.

While McCain is FAR better than BHO, he isn’t great either. And we got to this point by the 1994 conservative revolution petering out.

The only tiny bit of hope is that Obama likely would only be able to appoint replacements for two liberal nutjobs anyway, so it will likely be a push. If one just can’t hold on to 2012, then McCain at least might be able to appoint a less loony judge...though the Dems will control everything for 2 years at least. He won’t have much of a chance.

I think the time period between 2009 and 2012 will be the most important time period in the last 50 years at least. It doesn’t matter quite as much who wins this time (though McCain would certainly be preferable) it is how the American Public REACTS to the first 2 years of a BHO presidency and their response in 2010 that will tell the ultimate tale, IMO.

If McCain wins it probably just kicks the can down the road for Hillary vs Jindal/McCain’s VP in 2012. Which is FAR preferable to BHO.

The best hope is that 2010 is a replay of 1994 and then someone like Jindal can win in 2012. That can still happen with McCain considering the Dems will control congress even if McCain wins.

>> I believe Robert Bork suggested just that in his book Slouching Towards Gomorrah.

Robert Bork is truly one of the great Constitutional scholars this country has ever known. That he failed to win confirmation is one of the great tragedies of the latter-half of the 20th.

I read the Tempting of America in a law school Con Law class — haven’t read Slouching, though I really should.

H

The interpretation of the Constitution is not theirs by right of the Constitution. They abrogated it to themselves

See "The Anti-Federalist Papers" numbers XI and XII by Brutus dated 31 January 1788 and February 7 & 14, 1788. Our Founders saw far into this future.

It’s been a while, but I remember really liking it. It covers almost everything you can think of in modern society dominated by liberal ideology.

The other two branches have a Constitutional obligation to abide by the rulings of the Court. Encouraging each branch to act on its independent interpretation of the Constitution could very much cause chaos. The Supreme Court ruled one way, but the President disagrees so he does whatever he wants — not a good precedent.

Outrageous. The other two branches have no obligation to abide by rulings they consider to be unconstitutional. In fact, the opposite is true. Their oaths compel them to oppose all rulings they believe to be unconstitutional.

The Executive is called the executive for a reason. He's the one who executes the laws. If someone doesn't like the way he does it, let them impeach him.

Judicial supremacism, which you obviously adhere to, is destroying our free republic.

What would say to a Governor and state AG who claim that the separation of powers doctrine bars the prosecution of judges who commit crimes? BTW, I do have this in a court pleading from the state AG’s office representing the governor in my state.

>> I think it’s feasible, and not particularly damaging in cases of clarifying or making explicit what was originally implicit in the Constitution. The Bill of Rights is an example of this.

Part of the reason it isn’t feasible to use the Amendment process to overturn bad law by the Supreme Court, is that, unlike the simple process of issuing a Supreme Court edict, the Amendment process is long and quite treacherous. It is remarkably difficult to amend the Constitution, and thus it is an ineffective check on the judiciary.

It would be decidedly undesirable to make the amendment process any easier ... lest you end up with a Constitution that is unwieldy and a general mess (like the Texas Constitution, for instance, which has been amended 456 times ... with an additional 176 that were passed, but rejected by voters).

H

Barring a Constitutional Amendment allowing a check on the authority of the Supreme Court, a debate over the Constitutionality of a Supreme Court ruling is entirely academic.

I respectfully disagree. Any ruling deemed unconstitutional by the SCOTUS can, in effect, be overturned by the Cpongress if they move to enact law that renders the ruling null and void.

This equally implies that the president sides with the Congress and signs the bill into law or, if he vetoes it, is overruled by a 2/3rds majority vote of the Congress. The SCOTUS (Judiciary) is only 1 of 3 co-equal branches of government. They may be the highest court in the land, but their rulings are often wrong and in violation of the Constitution, in essence, creating law from the bench. For example, in Roe v. Wade there was no Constitutional foundation for their ruling to allow legal abortions in the US, clearly a states rights issue. By the same token, they ruled to uphold the McCain-Feingold Campaign Finance Reform Act, despite the fact that it contained a clear violation of the 1st Amendment.

So far, in each of these instances, Congress has failed to take the necessary action to overturn the rulings through legislation. That doesn't mean that they can't, it only means that they haven't.

"It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates."

From George Washington's Farewell Adress

>> Outrageous. The other two branches have no obligation to abide by rulings they consider to be unconstitutional. In fact, the opposite is true. Their oaths compel them to oppose all rulings they believe to be unconstitutional.

Nonsense. The duty of Constitutional interpretation lies with the judiciary. This is fundamental separation of powers ... the legislature enacts the laws, the judiciary interprets, the executive executes. The executive and legislature are not given the general power of Constitutional interpretation — and thus not given the authority to implement whatever Constitutional interpretation they prefer.

>> The Executive is called the executive for a reason. He’s the one who executes the laws. If someone doesn’t like the way he does it, let them impeach him.

Impeachment is not the only existing check on the executive ... and is restricted to cases of “high crimes and misdemeanors”. Generally, the President is not granted the power to interpret the Constitution — he is given the power to execute it. Additionally, genuine mis-interpretation of the Constitution is probably not a “high crime or misdemeanor”, and thus not impeachable.

>> Judicial supremacism, which you obviously adhere to, is destroying our free republic.

I simply noted that there didn’t exist a particularly effective check on the judiciary — and from that you take that I am a “judicial supremacist”? Generally, I am simply noting the reality of the situation, not arguing in its favor. I think the judiciary has certain interpretive authority, but that such authority should be checked by the other two branches (which it currently is not).

H

They should have refused to listen to the case.

Perfectly stated. Abortion is simply just not the business of the Federal government and therefore not the business of the Supreme Court. The reason it is not the business of the Federal government is because Powers herein granted to legislate abortion do not exist.

United States Constitution

Article I, Section 1, All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The interpretation of the Constitution is not theirs by right of the Constitution. They abrogated it to themselves.

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

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." -- John Marshall, Marbury v. Madison

It took me decades to unlearn that pernicious lie. It is amazing, when you think about it, that so many judges have also unlearned this lie. Of course, it is most important that the Justices on the Supreme Court not believe this lie...

So then the Constitution is what you say it is?

>> If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.”

This is precisely what I am saying. While it seems unwise to use the lengthy and difficult amendment process to overrule individual SC rulings ... I absolutely endorse the adjustment of the current “distribution [...] of Constitutional powers.” The Supreme Court is simply too powerful at this point ... and I therefore suggested an amendment to allow the other two branches to overrule the Court (by an act similar to a veto-override).

H

Some of what you say sounds right. More from our Founding Fathers:

“If once they [”our people”] become inattentive to the public affairs, you
and I, and Congress and Assemblies, Judges and Governors, shall all become
wolves.”
—Thomas Jefferson, letter from Paris, 1787

The Judiciary of the United States is the subtle corps of sappers and
miners constantly working under ground to undermine the foundations of
our confederated fabric.
— Thomas Jefferson (1820)

“The germ of destruction of our nation is in the power of the judiciary...”
— Thomas Jefferson (1821)

While we’re at it, I think we need an amendment to clarify the original intent of the Commerce Clause. The New Deal “substantial effects” doctrine is an unconstitutional usurpartion of state powers, and all three brances of the federal government are complicit in it.