Perspectives: How the Supreme Court came to rule us

OPINION – The passing of Supreme Court Justice Antonin Scalia has just ensured that an already contentious general election year becomes even more intense.

Lovers of liberty are mourning the loss of one of the last strict constructionist justices in American history. Scalia regarded the Constitution as a binding legal contract that defined and enumerated the upper limits of power for the national government it called into existence.

Statists, on the other hand, are salivating at the prospect of a more activist appointment to replace Scalia. They’re counting on someone who will rule by social fad rather than the actual text and original intent of the document.

Existing divisions will likely become deeper as the appointment of a new justice plays out.

What many on both sides are missing, is the necessary historical context to understand how our government has devolved to where a simple majority of nine lawyers can impose their demands on society.

The federal system that was created by the founders and ratified by the states no longer exists in America.

The destruction of the enumerated, separated and balanced powers of the Constitution has taken many generations to realize. It started much earlier than most people think.

When the Constitution was first ratified, it was the states that balanced the power of the new national government.

James Madison used the term “national” to describe the powers of an independent central government and the term “federal” to refer to those powers that came from the contributions of the states.

This means that the national government was dependent upon the states and not the other way around. For instance, U.S. senators were appointed or elected by state legislatures up until 1913 and the 17th Amendment.

Their allegiance was to the states they represented and not to Washington.

With the states controlling half of the national legislature, it was up to the states to decide if they would implement national policies. That included determining whether a law passed by Congress was constitutional or not.

The national government was duty-bound to follow the states rather than dictate to them.

Thomas Jefferson explained the reasoning behind this structure:

The capital and leading object of the Constitution was to leave with the States all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other States; to make us several (separate) as to ourselves, but one as to all others.

The oft-misquoted supremacy clause clearly states that its supremacy only applies in pursuance of those Constitutional powers enumerated for the branches of national government. It’s not a blank check for national authority.

What Jefferson feared most was the consolidation of powers to the national government followed by the inevitable consequence of corruption. This is why the distribution of powers was so essential to good government.

By consolidating power to a centralized national government, the power of the individual states could be stolen and used to bypass the limitations of the Constitution.

The Marbury vs. Madison case is where this first major shift of consolidating power away from the states occurred. It’s one reason why the Supreme Court still exercises power it was never intended to have to this day.

In a nutshell, consolidationists had pushed for John Adams to make many lame duck appointments following the election of 1800. The five-year appointments were intended to allow them to stay in control through the next election.

Not all the appointments could be made before Jefferson took office and, when William Marbury’s appointment was withdrawn, he went to the Supreme Court demanding that he be appointed to his office.

The justices of the court, led by John Marshall, ruled that they understood the Constitution better than the man who actually wrote it. They gave themselves the power of judicial review in which one branch of the national government provides a check on the other branches of that government.

Remember, the states which called a federal government into existence through a compact we know as the U.S. Constitution were now told that one part of their creation – the Supreme Court – alone would decide what was and wasn’t constitutional.

The states could no longer act as a check on the national government.

The rule established by the Marshall court took precedence over liberty. Liberty had been the primary goal behind the founding of the republic but now it was subserviant to the rules.

The 14th Amendment, imposed in the reconstruction era following the War between the States, codified the alleged moral superiority of the national government by declaring that the Bill of Rights applied to everyone no matter what state governments were doing.

By the time the 17th Amendment was ratified and state legislatures were no longer able to appoint or elect U.S. senators, the states effectively became little more than administrative offices of an all-powerful national government.

If you cannot see how this shift in power has fed the abuses and overreach of our unfettered national government today, you’re simply not paying attention.

The system is unlikely to fix itself. Keep that in mind as candidates vie for control of the Washington beast.

The answer to the tyranny of consolidation is found in decentralization.

That will require serious moral courage on the parts of the states and their people.

The only other options are to continue accepting official abuse as our lot in life or to distract ourselves into a state of deliberate blindness so as to avoid the responsibility of seeing what has happened.

We all have choices to make. Few of them are easy ones.

It helps to understand exactly what we have lost so far.

Bryan Hyde is a news commentator, radio host and opinion columnist in Southern Utah. The opinions stated in this article are his and not representative of St. George News.

Email: bryanh@stgnews.com

Twitter: @youcancallmebry

Copyright St. George News, SaintGeorgeUtah.com LLC, 2016, all rights reserved.

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9 Comments

  • NotSoFast February 15, 2016 at 10:56 am

    A good/ clear article, thanks.

  • BIG GUY February 15, 2016 at 11:44 am

    The amendments that Bryan decries would not be amendments unless they were ratified by three fourths of the states. Three fourths!! Bryan’s opinions make it sound like a cabal in Washington stole the states’ rights. It ain’t so, Bryan. The realities of technical progress and an increasingly integrated economy over 230 years have led most of us to recognize the need for a stronger national government than was envisioned by Jefferson and Madison.

    I’m no fan of where the Supreme Court has taken us in some instances in recent years, especially some interpretations of the 14th Amendment. But Bryan, the states ratified the amendment, Marbury didn’t come back from the grave and impose it on us. Your opinions reflect the kind of woolly thinking that got Finicum killed and the Bundy’s in jail.

  • anybody home February 15, 2016 at 11:53 am

    “Statists, on the other hand, are salivating at the prospect of a more activist appointment to replace Scalia. They’re counting on someone who will rule by social fad rather than the actual text and original intent of the document.”

    And, by Gawd, only the chosen people know what that actual text and original intent of the document might be.

    But the real insult, Bryan, is in the phrase, “who will rule by social fad.” If you’re talking about civil rights, gay rights, women’s right to vote or any other important rights hard won over many years, I point out to Bryan that none of these are “social fads,” but rights based on the Declaration of Independence and Constitution which has been thoughtfully amended over the years, not as a social fad, but as a living document to reflect the values of the people of America.

    I’d like to ask this question of all those who believe the Constitution should not be a living document but should stand as it was written in 1776. Do you also believe that medicine should be practiced as it was in 1776? Do you believe that education and knowledge and science should have stopped in 1776? Do you believe that nothing should have changed in America since that time?

    If so, you don’t even belong here with your upstart religion and beliefs.

    The law of this land, America, is not based on “social fads” but on the values of thoughtful people with integrity who understand that things do indeed change.

    In closing I offer the words of psychologist Rollo May who did understand this:
    “To the best of my lights this is what I choose to do, although I may know more and choose differently tomorrow.”

    Those who still believe in the handcart philosophy, refuse to “know more” or “choose differently.” They prefer the social fads found on AM talk radio.

    • Rainbow Dash February 15, 2016 at 8:25 pm

      Well said, Anybody.

  • Roy J February 15, 2016 at 12:19 pm

    Oh for Pete’s sake. This is a very narrow view of a very wide subject. This should be sufficiently obvious to anyone familiar with the contention between the Marshall court and Andrew Jackson.

  • .... February 15, 2016 at 6:07 pm

    Another ho hum article from Bryan with a narrow minded opinion as usual.

  • NotSoFast February 15, 2016 at 8:07 pm

    I ‘think’ I now get the majority of the commenters view points; Correct me if I wrong.
    ‘What ever is Politically Correct at the moment, change the nations d…* rule of law to make everybody happy’. What happens in a decade or so, when It’s PC to be a racists or have sexist leanings or Communist leaning or even Sharia law must be upheld at all times.
    Thanks for the clarification neighbors.
    *Ed. ellipses

    • Chris March 2, 2016 at 6:01 pm

      Yes, you are wrong. Consider yourself “corrected”.

  • Chris March 2, 2016 at 5:59 pm

    “subserviant” Really? Don’t have access to any form of spell check? Beyond your deficient spelling, this is very poorly written. You have clearly reached your “ceiling” in writing ability, Bryan. Stick to talk radio where you only have to deal with illiterates.

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