New Justices Should Respect Constitution

By Trey Dellinger - July 18, 2005 - Jackson (Mississippi) Clarion Ledger

The Supreme Court's job is to strike down laws that violate the constitutional text. But remember, when the Supreme Court strikes down the acts of the people's representatives, it nullifies the votes of the people who elected them. Historically, the court stuck to the Constitution's narrow text, leaving most matters to the people's representatives.

Though it is the power of the courts to strike down laws since Marbury versus Madison, it is not their job, and should not be their right. Certainly not with the current outrageous lack of accountability of the justices we have today. It is possible, though I think not likely, that putting more conservative justices on the Supreme Court could help. It is more likely that it will simply change the type of activist rulings that are issued by a court that is arrogantly out of control.

That first seizure of power in Marbury versus Madison has evolved to the current near death of representative democracy due to the failure to limit this "job" to strike down laws to the example originally set. In that first case, a unanimous Supreme Court struck down one law and wiped it from the books entirely. The questionable power seized by John Marshall in that case has become the uncontrolled power of any judge to strike down a portion of any law that he so feels. As a result democracy is nearly dead.

What we need is a Constitutional Amendment that limits the power of judges to make these rulings. When the legislature is egregious as it was in Marbury versus Madison, and the court is unanimous in its opposition, I believe that the power constrains abuses by the legislature. To allow it when the court is not unanimous, means it is not law, but politics. That should mean it is up to the legislature and not the courts. That is how our social contact was established. No single judge, nor even the supreme court when it is not unanimous, should be allowed to declare a law unconstitutional. Since laws are a compromise, if any portion is struck, the entire law should be struck and a new compromise developed by the political branch of our government, the legislature.

Until this change is made in the power of the courts, changing a couple of judges will have only limited and short term consequences. Unaccountable power is always abused.