Where Does the Supreme Court Get Its Power?

This week the eyes of everyone concerned with the continuance of limited government were riveted on the Supreme Court.  For three days the nine Justices heard arguments by the Solicitor General in favor of ruling the individual mandate which is the keystone of Obamacare constitutional.  They also heard the representatives of twenty-six States argue that it is unconstitutional.  This is the first time that a majority of the States have combined to protest an act of Congress.  Now We the People must wait while the fate of our Republic is decided in secret by our Black Robed rulers from whom there is no appeal.

How did we get here? 

We elect our representatives and they enact laws which are supposed to be within the framework of the Constitution.  It should be the expectation of Americans that those we entrust with our delegated sovereignty would craft laws in accordance with our wishes as expressed in the founding document of our government.  These laws should reflect our desire for limited government, personal liberty, and economic freedom. 

And the unicorns danced with the elves until the cow jumped over the moon.

The perpetually re-elected who control the two houses of our legislature make law with no regard for the limits, the spirit, or the letter of our Constitution.  In this case they have decreed not participating in Commerce is commerce, and that a penalty is not a tax, that is a tax, and then isn’t again.  After years of stepping so far over the line they have forgotten there was a line.  The Party of Power has finally legislated us to the point of no return.  If the court of last resort gives this power grab the green light what limits are left? 

Since the law was passed over the overwhelming rejection of the voters its validation would cement the dictatorship of the Party in the transformation of America from what we have known into what we would never choose.  The Court appears to be our last line of defense.  But where does the Supreme Court get its power?

The Supreme Court is principally occupied in a task that has no basis in the Constitution.  The nine justices spend their time judging what is constitutional and what isn’t through a process known as judicial review.  However, when the delegates of the thirteen original States drafted the Constitution they decided after much debate not to delegate such a power to the judicial branch or any other branch of the new Federal Government.

If the Constitution doesn’t give this power to the Court how did they get it?  The surprising answer is that they assumed it unto themselves, and since no one stopped them they just kept doing it.  The process began in 1794 when for the First time they declared an act of Congress unconstitutional.  Then in 1803 they used a minor case Marbury v Madison to outline their justification for the process.  Since that time the belief that the Supreme Court is the ultimate judge of the constitutionality of anything and everything has become such a cornerstone of the American System that the average person erroneously believes the power was granted in the Constitution. Thus the first power grab has become our last defense against what could be the final power grab.

In other words we who want to see the rebirth of limited government are hoping the Supreme Court will use an unconstitutional power to save the Constitution.  We stand hat in hand waiting patiently to find out if the Commerce Clause can be stretched to give the central government unlimited power or will we step back from the precipice and wait for the Party of Power to try again.

Across the country we have watched as everything from abortion to gay marriage has been imposed upon us by the black robed tyrants of the Federal Bench.  We have watched as popularly passed referendums were overturned, and common sense laws such as Arizona’s immigration statutes cast aside by activist jurists determined to force our nation into their mold.  Unelected and almost unaccountable these imperious lawyers on steroids hand down pronouncements from Olympus on the Potomac as the sons of pioneers meekly accept the rule of tradition and the arbitrary decrees of men instead of the rule of law our ancestors fought and died to establish and preserve.

Now the arguments are over.  The talking heads endlessly dissect what was said telling us what it means.  For months we will hear rumors and hints as we wait until June for the word from on high.  Is not purchasing insurance commerce?  Does the government have the power to compel a citizen to enter into a contract?  Is a contract made under duress valid?  Does Congress have the power to make the purchasing of a product necessary to maintain the status of a law abiding citizen?  If the answer to what should be rhetorical questions is not a resounding “NO!” we have strayed beyond the pale of liberty and are adrift in the seas of arbitrary power.

As we look to an unconstitutional process to save the Constitution perhaps we should reflect on the state of our Republic.  I would also recommend a deep study of the works of our Anti-Federalist fathers.  Since we are living in the world they predicted maybe we should take a second look at what they recommended as an alternative to what we have become?

Dr. Owens teaches History, Political Science, and Religion for Southside Virginia Community College.  He is the Historian of the Future and the author of the History of the Future @ http://drrobertowens.com © 2012 Robert R. Owens drrobertowens@hotmail.com  Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens