Have you ever had a boss who treated you like a child, second-guessed you, reworked whatever you did so that you felt no ownership of the final product? As a result, did you take your job less and less seriously precisely because you knew that whatever you produced wouldn’t really be yours anyway?
Well, the Supreme Court is the boss, and Congress is the Dilbert. There was a time when the U.S. Congress took the Constitution very seriously. Even after Marbury v. Madison, the 1803 case that established the Supreme Court’s power of judicial review, Congress and the president were still the chief guardians of the Constitution. Indeed, before the Civil War, only two acts of Congress were found unconstitutional by the Supreme Court.
These days, the Court seems to find duly enacted laws unconstitutional six days a week and twice on Sunday.
Lawmakers rarely bother their pretty little heads with the Constitution. Rather, they just load as much spit, tar, Vaseline, and whatever else they can think of on a legislative fastball and try to get it over SCOTUS’ plate. If those imperial umpires don’t call a constitutional strike, well, then — voilá — it must be constitutional.
Presidents are no better. George W. Bush, in his one act that does approach an impeachable offense, signed campaign finance “reform” in 2002, even though he made it clear he thought the law was unconstitutional. At the ceremony, he expressed his “concerns” over the fact that the law — which he signed! — “restrains the speech of a wide variety of groups on issues of public import in the months closest to an election.”
But, have no fear, the super Court is here. “I expect,” he explained, “that the courts will resolve these legitimate legal questions as appropriate under the law.”
No sale. Congressmen, senators, and presidents alike swear to protect and defend the same constitution as the Supremes do. In the 19th century, Congress actually debated constitutionality with passion, and if it found a proposed law falling short of that standard, it was fixed or killed, not outsourced to the Supreme Court for retrofitting.
The Court, by assuming that responsibility, and the other branches of government, by surrendering it, have permanently damaged the constitutional order. Indeed, Thomas Jefferson believed that a judiciary with final jurisdiction over the constitutionality of presidential and legislative actions “would make the judiciary a despotic branch” of government.
A long time ago, SCOTUS kept its powers confined to adherence of cases to the law and the law's adherence to the Constitution.
In the last 40 years, the Supremes have turned our legal system into a bazaar of venue shopping. Constitutional protections like freedom of speech are now at the whim of a bunch of legal hacks in robes choosing decisions on the prevailing winds or their existing prejudices.
I never thought it was possible for me to have less respect for a profession than a US senator. But thanks to clowns in robes like Justice Kennedy, I found one.
