Scotus’ Unconstitutional Lawmaking and Article V

By Rodney Dodsworth – April 3, 2016

It is no secret that American courts have wandered far outside the business of adjudicating.

Every summer, the nation holds its breath in anticipation of the latest batch of scotus opinions. Last June, the questions were: Will homosexual marriage become a right across the land? Is there an unconstitutional penalty within Obamacare, or is it a constitutional tax? Must localities mix Section 8 tenants among their communities to achieve racial balance? Can congress force individuals to purchase a privately provided product such as health insurance?

No scotus majority opinion ever declared that it revised or made law. For example, in Obergefell v. Hodges, the court found that state same-sex marriage bans violate the 14th Amendment’s due process and equal protection clauses. Leftists cheered. Patriots shed a tear for the court’s breezy assumption once again of legislative and moral policing powers. It is one thing for scotus to adjudicate, which is its purpose; it is another to legislate, which is outside the judicial realm.

In the actual constitutional republic design of our Framers, the practical effect of laws shot down by scotus would be limited to the parties involved. The myriad state statutes and constitutional amendments that banned same-sex unions are unconstitutional? Really? Well okay, they are now void and of no effect. However, scotus has zero constitutional power to supplant the electoral and sovereign powers of dozens of states with its Article III judicial authority. By no stretch of any constitutional magic should a court decision have the effect of creating new legislation or rights.

Judge-made law like that of Obergefell is the conflation of constitutional powers. It is an Article III impossibility for those vested only with the judicial power to assert, let alone go beyond, any of the limited Article I powers of congress to legislate. Thus, when a scotus opinion has the effect of creating new legislation, scotus has violated the higher law, the constitution it invoked to strike down the law in the first place!

Here is a solution. If scotus determines a statute or state constitutional amendment violates the higher law of the constitution, the supreme law of the land, declare it void and send it back to the legislature or constitutional amending body that wrote it.  It will then be up to the legislative/amending body to rewrite the law or not. Congress can institute this under its Article III “exceptions and regulations” power.

This is theory of course. As a practical matter since the 17th Amendment, congress has shown extreme reluctance to trim the wings of scotus. The last thing congress in general, and the senate in particular wish to do is generate negative, reelection-risking attention from the Left media.

The same solution should apply to judicial “interpretation” of the law. If a statute is too vague for adjudication, if scotus is puzzled by essential elements or clauses in the law, the law should be sent back to its source for clarification. No court may legitimately “fill in” or offer any interpretation such that it effectively makes or amends law.

The sovereign people didn’t grant legislative power to congress or their state legislatures in order for the power to be punted to the judiciary. In our system, those responsible for lawmaking are to be subject to regular appraisal for fitness of office by the electorate. Judges have life terms; they are not subject to reappointment to their offices by the component members of our republic, the people and states. They have no authority to write law.

Once again this is all fine and good in theory, but what is to prevent courts from never admitting ambiguity? After all, the majority opinion in Obergefell never admitted any 14th Amendment uncertainty. Bans on homosexual unions wrote scotus, simply violate the due process and equal protection clauses of the 14A.

So, experience has shown it is extremely doubtful that congress will ever stop judicial lawmaking, and scotus gets such a kick from imposing societal ‘progress’ that it will never admit ambiguity in constitutional clauses.

Obergefell was, of course, merely the latest scotus outrage going back to FDR. Scotus has no authority to write the equivalent of statutory law, create rights, or amend the constitution. This judicial violence against the sovereign people will continue with far worse to come unless and until scotus is forced to recognize a power higher than both it and the Constitution – We The People in an Article V convention of the states.

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