Pushing back: The Supreme Court's real job

This week Senator Arlen Specter complained to Supreme Court nominee John Roberts that the Court has limited Congress' authority to legislate. The next day, Justice Stephen Breyer complained to the American Bar Association that politicians are attacking the Court and threatening judicial independence.

This is happening because the U.S. government has been ignoring its constitutional limits for so many decades that no one working in government today is old enough to remember what their jobs are supposed to be.

Today we have a federal government that wanders unrestrained over the national landscape, exercising power over anything that has people exercised. The American people look to the federal government to solve all the problems of education and transportation and health and safety and just about everything else that comes up in the typically aggravating average day.

But that's not what the Constitution says.

The U.S. Constitution created a federal government of sharply limited powers and left all other powers to the states.

We can change it, of course, but we haven't changed it. That's still what it says.

Because the Constitution gives Congress the power to regulate interstate commerce, Congress does whatever it wants to do and claims that its actions are related to interstate commerce.

In two cases, the Supreme Court said Congress had gone too far. U.S. v. Morrison in 2000 threw out the Violence Against Women Act and U.S. v. Lopez in 1995 struck down a federal law that banned handguns within a thousand feet of a school. The Supreme Court said these laws, however worthwhile and well-intended, had no relationship whatsoever to interstate commerce. Assaults on women and guns near schools are subjects for state law, not federal law.

These are the two decisions that have Sen. Specter so angry. But he's wrong. The framers of the Constitution left the police power to the states. They didn't want the federal government to be too powerful, and they divided power between the federal government and the states in the way they thought would best safeguard freedom.

Justice Breyer is wrong, too, when he complains about the Court being attacked by politicians over its decisions on controversial issues like the death penalty.

The reason the Supreme Court is being attacked by politicians is that it has crossed beyond its constitutional limits and is now making policy. The framers of the Constitution considered a proposal to allow federal judges to participate in the process of deciding what the law ought to be, but they voted it down twice and specifically excluded the courts from
policymaking.

In 1925, the Supreme Court began to usurp the states' policymaking powers by declaring that some parts of the Bill of Rights are so fundamental to the idea of due process of law that they must apply to the states through the Fourteenth Amendment, which bars any state from denying due process of law to any person.

Prior to 1925, for example, states held the well-established power to limit freedom of speech. To the extent permitted by their state constitutions, they could prohibit libel and slander and obscenity and incitement and panhandling and anything else the state legislatures thought undesirable.

But gradually, the Supreme Court imposed the restrictions of the First Amendment on the states. Of course, the Court couldn't say the First Amendment was absolute. So the justices devised a test to judge whether a state law went too far in restricting a fundamental liberty. The Court said the state had to show a "compelling" reason that the law was "necessary" to acheive a "permissible" state purpose. A rational reason was not enough. What was a compelling reason and what was merely rational? The justices would draw the line on a case-by-case basis.

Over the rest of the twentieth century, the Supreme Court used this reasoning to strike down state laws, limit the authority of school officials, and compel local police and state courts to change their procedures for searches, arrests, and trials.

In so doing, the Supreme Court gave itself a role in policymaking that the framers specifically denied to it.

The justices may think they're simply interpreting the Constitution, but in fact they are exercising subjective policy judgment. Take abortion, for example. Is a woman's right to privacy sufficiently "fundamental" or is a state's interest in protecting unborn life "compelling" enough to restrict it?

It's not a question of whether a law is good or bad, or a policy is right or wrong, it's a question of who decides. The Constitution is a legal contract dividing power between the federal government and the states. It is the Supreme Court's job to enforce the constitutional boundaries. If the justices substitute their own judgment of wisdom and necessity for the judgment of voters and their elected representatives, they're not acting as judges, they're in politics. And they can expect to hear from people who don't agree with the policies they impose.

This is not a conservative or liberal issue. It's a problem for both the left and the right.

On the left, for example, there's medical marijuana. Under the Constitution, the legality of a drug that is produced and consumed within state borders is entirely within the power of the states, which is why Prohibition required a constitutional amendment. The Supreme Court recently endorsed Congress' claim that the power to regulate interstate commerce includes the power to ban state-approved medical marijuana, even if the drug is never sold across state lines. There is no basis for that view in the text of the Constitution. It is a policy decision made by justices who think the spread of marijuana use is a bad thing.

On the right, there's the death penalty. The Supreme Court recently ruled that states may not execute convicted killers who were juveniles at the time of their crime. There is nothing in the text of the Constitution that gives the Supreme Court the power to override the judgment of state governments on this issue. It is a policy decision made by justices who think capital punishment is wrong. (The tip-off that there's nothing in the Constitution to support this decision is the resort to foreign law as a means of justifying it.)

This is all a consequence of our eighty-year failure to update the Constitution with amendments. We have relied on "landmark" cases instead. This has given the Supreme Court too much power, political power, and today we are all paying the price for it.


Copyright 2005

Source notes can be found in the appendix to The 37th Amendment.

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