The Constitution Makes Itself The Supreme Law Of The Land

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It’s June again—the year Americans wake up every morning waiting for the Supreme Court to resolve our deepest political differences. To choose what the Constitution says about our physical autonomy, our power to prevent climate change, and our ability to protect children from guns, the nation looks to the Five Oracles, not the members of Congress we elect.

The Constitution Makes Itself The Supreme Law Of The Land

The Constitution Makes Itself The Supreme Law Of The Land

This annual exercise in judicial supremacy — the idea that the Supreme Court has the final say on what the Constitution allows — is a strange pain for a nation that will close out the month ready to celebrate our independence from an unelected king. From one perspective, our acceptance of these privileges suggests that our political system is too appropriate to deal with the most pressing problems we face. But it would be a mistake to regard judicial privilege as a cause rather than a symptom of our politics.

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Contrary to popular belief, judicial supremacy is not in the Constitution and has not been since the founding era. It entered American politics only after the Civil War, when the Court overturned Congress’ decision that the Constitution required civil rights and voting rights. It’s been 150 years since the Court severed domestic legal authority from our national representatives. These court rulings overturned safeguards that many ethnicities believed were essential to a functioning, multiracial democracy, including protections for voting rights and limits on the influence of money in politics. Worse, the Court’s assertion of the power to overturn federal law has disillusioned Americans, who generally believe that the most important interpretations of the Constitution are made by “We the People” rather than by courts. during the preparation of the national law.

In the decades before the Civil War, Congress was the center of attention as domestic parties fought against the pro-slavery constitution west of the Mississippi. According to historian James Oakes, when a frontier state senator petitioned the Supreme Court for a ruling in 1848, other senators scoffed at his idea. “The Constitution has been interpreted in as many ways as the Bible,” responded New Hampshire Senator John P. Hale. White Southerners believed that “the Constitution carried with it slavery,” while Northerners interpreted the Constitution as “guaranteeing liberty.” As Hale and his contemporaries knew, the resolution of such basic national conflicts could never produce a judicial response, his interpretation of them is more correct. Rather, the interpretation of victory depends on whether supporters can form a political majority sufficient to control the national government.

The Supreme Court attempted to resolve this issue with its infamous Dred Scott decision of 1857 – interpreting the Constitution to mean that the federal government lacked the power to abolish slavery anywhere in the United States. But instead of asserting the court’s supremacy over Congress, the Republican Party responded with resistance. In fact, Abraham Lincoln was successfully elected to the presidency on the grounds that the court was overruled by the law of the land. In his inaugural address, he said that “an honest citizen must recognize that if the policy of the government in important matters affecting the whole nation should not be changed by the decisions of the Supreme Court,” “then the people will not have their rulers. , at that rate, resign his government into the hands of that famous court.”

Throughout the Civil War and post-Reconstruction era, the politically dominant Republicans in Congress passed legislation to create a multiracial democracy in the United States for the first time. Some of these laws boldly overruled the court, including statutes of 1862 and 1866 that began to abolish slavery and grant black citizenship. Others have prevented the court from overruling Congress’s interpretation of the Constitution, such as stripping the court of jurisdiction over certain cases. Others joined the court in the task of enforcing the constitutional decisions of Congress. Acts of 1870 and 1871 directed federal courts to use the Thirteenth, Fourteenth, and Fifteenth Amendments against state officials, while acts of 1870 and 1875 directed judges to prohibit voting restrictions, mobs, and racial discrimination.

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Only after the Republicans lost control of Congress in 1875 were they able to use their unconstitutional interpretations to devastating effect. In the Civil Rights Case of 1883 and related cases, the Court struck down federal civil rights laws on the theory that the newly enacted Thirteenth and Fourteenth Amendments did not give Congress the power to prevent racial violence or discrimination in public places. For the next half century—historian V. And it invented new doctrines that enabled the Court to strike down federal laws it believed interfered with white business interests. It was during this period that judicial supremacy became the dominant ideology in the United States.

It bears repeating: Judiciary is the institutional arrangement that led to the cultural upheaval of white people who wanted to reject Reconstruction and the subsequent rise of organized labor. And it makes sense, because judicial dominance can harness the power of an entrenched minority and undermine that power in a democratic legislature. After Marbury v. Madison first predicted that the Court would be unable to agree with Congress on the constitutionality of federal laws, the justices finally convinced skeptics of the necessity of this power by empowering Congress and opening up its legislative power to establish political equality.

In the nearly 150 years since the Restoration, judicial prerogatives have remained in effect. Throughout the 21st century, judges have used congressional prerogatives to insulate their wealth and power from federal labor laws, federal election laws, federal civil rights laws, federal campaign finance laws, and federal health care laws. Decisions like Citizens United and Shelby County are typical examples of how the Court overruled Congress to make it difficult for ordinary people to participate on equal terms in American democracy. But their harm is more than that: Because the limits of our constitutional discretion cannot go beyond the views of those who sit on the court, judicial supremacy has also undermined what we can do with democratic politics and organization. political changes at the national level.

The Constitution Makes Itself The Supreme Law Of The Land

Instead of looking to the Court to see some basic truth from the text of the Constitution, Americans should demand that their elected representatives participate in the nation’s legislature. Congress must act, even if that means overruling court interpretations and changing its jurisdiction.

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Encouragingly, lawmakers recently passed bills to clarify what federal law our nation requires and what our Constitution allows, including reproductive freedom and voting rights. But the bills stalled in the Senate for two reasons beyond his control. One, the filibuster, will be abolished when 50 senators recognize that a permanently incapacitated Senate is far more destructive than an active Senate, which may one day be controlled by an adversary.

But another obstacle could be even more daunting: Fear among lawmakers that if the courts overturn what Congress has accomplished, the legislation will be meaningless.

But as the Reconstruction Congress recognized, all of the Court’s power comes from federal statutes enacted by Congress—a majority of Congress always has the power to amend. Conflicts over constitutional interpretation are not about who better understood the words of the old document. Who or what actors they are in our national system of government can cause specific and concrete debates in our time. This is a matter of political leadership, not legalism.

There is nothing illegal about Congress asserting its authority to make the supreme law of the land. Building experience reminds us of this established work. In fact, the only remnant of the work of the Reconstruction Congress today is the 42nd United States Act. § 1983 – wrote some of the most famous cases in modern constitutional law. In Section 1983, Congress ordered federal courts to stop depriving state or local officials of “constitutionally guaranteed rights, privileges, or immunities.” The 1983 chapter is what James Obergefell invoked when Oliver Brown challenged Texas’ abortion law in Brown v. Kansas’ segregation law in Topeka Board of Education and Ohio’s “Jane Roe” challenge in Roe v. Wade. Marriage ban with Hodges at Obergefell. Although these landmark cases struck down state law, judges have not overruled Congress’ orders. Decisions striking down a state’s interpretation of the Constitution reflect not judicial supremacy, but the ability of Congress to enforce and enforce the constitutional duties of citizens.

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