Ceding power to the court

An unpopular truth

[Reprinted from Issues & Views July 14, 2003]

In "The Supreme Court Is Not Supreme," syndicated columnist Pat Buchanan describes how the Founders' original Constitution was first overthrown by the actions of Abraham Lincoln, when he dragged those eleven Confederate states back into the Union. Next came a period when Congress seemed to rule supreme, eclipsing the powers of the other two branches of government.

However, by World War II, claims Buchanan, Congress had ceded to the executive branch its power over war, peace and foreign policy. And, just as important, Congress turned over to the Supreme Court its power to decide issues of race, gender, religion, culture and morality. This, of course, means that no amount of voting for representatives or any other direct input by "the people" has the power of influence in these areas.

Buchanan cites a book he reviews here on this website, Judicial Dictatorship, by William Quirk and R. Randall Bridwell, to explain what happened. Buchanan writes:

Why did Congress cede its powers? For the most basic of reasons: survival. Decisions on war, peace, race, religion, morality, culture and gender divide us deeply and emotionally. These are issues where one vote could cost scores of congressmen their seats. Why not turn them over to justices, appointed for life, who never face the voters and who relish remaking our society according to their own vision and beliefs? . . .

Why do conservatives and liberals agree that the Court should decide such issues? Because both "share an abiding fear and distrust of American majority culture."

Buchanan refers to the current quandary that Republicans will face in the 2004 elections, over the issue of homosexual marriage. Will the Bush administration have to oppose homosexual demands for legalized marriage, in order to hold onto its political base, i.e., the so-called conservatives? Or is the Supreme Court a blessing to elected officials? Buchanan continues:

The Bushites are delighted to have questions of race, religion and morality settled by courts. For when courts decide, politicians can throw up their hands and say, "We may not like it, but there is nothing we can do. The court has the final say."

Yet, as the authors of Judicial Dictatorship show, in the true Constitution, the Supreme Court does not have the final say. Buchanan writes:

In our written Constitution, the doctrine of judicial supremacy does not exist. Congress has the power to abolish all federal courts except the Supreme Court and to limit that court's jurisdiction to "cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party."

So, the Supreme Court has jurisdiction in areas other than those cited in the Constitution, only if Congress grants it. Buchanan concludes:

If Congress will not confront the Court, the people should confront the Congress. For our national sovereignty rests with the people, who took it away from King George and Parliament and lodged it in a written Constitution, not in this insiders deal by which we are ruled today.

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