With the establishment of judicial review in 1803 by Marberry vs. Madison, the Supreme Court became the ultimate interpreter of the Constitution. Constitutional matters, such as whether the Second Amendment affirms the right to possess firearms to the individual or to some militia, ultimately wind their way to the Supreme Court where the meaning of the Constitution’s provisions is voted on and decided. This can take years.
The Court, however, is not infallible. Sometimes the Court reverses itself. The recent Kelo decision, for instance, begs for reversal. And some Court decisions are stains on American history, such as Plessy vs. Ferguson and the Dred Scot decision. So the Supremes are quite capable of error. Also, the Court can be intimidated, as happened under FDR with his attempts to pack the Court.
Despite their human frailties, justices are appointed for life. Only one Supreme Court justice has been impeached, Samuel Chase in 1804. The Senate acquitted Chase in 1805. Federal judges also rule on questions of constitutionality, and they, too, are appointed for life. Since 1789, the Senate has tried 14 impeached federal judges and removed six. This includes former federal judge Alcee Hastings, who was found guilty of corruption and perjury, and removed from office in 1989. (Since 1993, Mr. Hastings has served as the U.S. Representative from Florida’s 23rd district.)
On the elective side of government, many citizens are beginning to see the virtue of “citizen legislatures,” like the Founders intended. Many now favor term limits. Folks are beginning to look askance at professional politicians (i.e., those who made the mess). Even if America were to see higher turnovers in elective offices, Supreme Court justices will still have lifetime tenure. Oliver Wendell Holmes, Jr. set the age record at 90. More recently, John Paul Stevens hit 89. Federal Judge Wesley E. Brown still sits on a U.S. District Court at 103. Obviously, the federal judiciary is immune to senility.
The Supreme Court may be the final interpreter of the Constitution, but the creators of the Constitution were, and still are, the several states. The states ratified the Constitution and the states continue to ratify amendments to the Constitution. Indeed, the states created the central government of which the Supreme Court is a part.
There is an escalating tension between the states and that same central government the states created. The federal government has overstepped the limitations placed on it by the Tenth Amendment. The feds have usurped rights reserved to the states and the People. This has been going on for a century. The feds have dumped tons of mandates on the states. The feds “justify” their power grabs by invoking the Commerce Clause, warping and stretching the meaning of that tiny clause beyond all reason.
The “laboratories of democracy,” the states, are all conducting the same experiment now, an experiment imposed on them by an overreaching federal government.
Seeking to restore balance between themselves and the federal government, the states are beginning to assert their sovereignty. A prime example is the states’ rebellion against ObamaCare. In suits that are destined for the Supreme Court, some 20 states are suing the federal government over the constitutionality of ObamaCare and the Commonwealth of Virginia has filed a separate suit. That more than 40 percent of the states immediately filed suit against ObamaCare is a strong indication that the linchpin of the system, the “individual mandate,” could never stand on its own as a constitutional amendment.
Polls consistently showed that the People didn’t want ObamaCare. Yet, Congress forced it on them anyway. If the Supreme Court rules unwisely in the upcoming cases, what is left for the People and the states to do? Civil disobedience? Secession? What?
One action that should be taken is this: Any justice who votes to uphold ObamaCare or who votes not to hear the cases should be impeached and removed. Congress should take this extreme measure because the “individual mandate” goes to the very heart of what it means to be an American citizen, altering the relationship between the government and the individual. Such fundamental change must only come about through amendment, not legislation. Any justice who fails to see this is not fit to sit on the Court.
“High crimes and misdemeanors” are whatever Congress says they are. Sitting on the High Court while disrespecting the Constitution would seem to be a “high crime.” (Thomas Sowell recently addressed judicial imperialism: “The time is long overdue to stop treating judges like sacred cows.”)
Of course, impeaching and removing Supreme Court justices will take a rather different Congress than the ones we’ve endured for so long. The People will have to repopulate Congress with constitutionalists. On November 2, the voters made a good start at that.
The incoming Congress ran on a pledge to “repeal and replace” ObamaCare. But they may have to wait until the voters replace Obama before they can replace ObamaCare, as Obama can still veto. The better way to strike down ObamaCare is by a Supreme Court decision, because that could enshrine the limits of federal power and clarify the reach of the Commerce Clause. If the Court were to err, however, another means of redress is the Article V convention to amend the Constitution. (Some conservatives fear Article V. Philip Klein’s informative article “Is It Time for a Convention?” at The American Spectator might allay their fears.)
If the states are the creators of the Constitution and the Supreme Court is the ultimate interpreter of the Constitution, what is the protector of the Constitution?
The protector of the Constitution is one with the protector of America herself, the U.S. military. (To those misguided individuals who like to think of the Supreme Court as the “guardian of the Constitution”: How many divisions does the Court have?)
It is self-evident that one sure threat to America’s Constitution would be the destruction of America herself. With no America, there is no Constitution. So, when professional politicians expose America to destruction or danger, what is our civilian-controlled military to do, just stand by and let the elected government ruin the nation? Surely, the preservation of the “chain of command” is less important than protecting America and her Constitution from domestic enemies.
We are referring to the act that is rarely brought up in polite society — the military coup. In The Atlantic, James Fallows writes:
We could hope for an enlightened military coup, or some other deus ex machina by the right kind of tyrants. … The periodic longing for a “man on horseback” is a reflection of disappointment with what normal politics can bring. George Washington and Dwight Eisenhower were the right men on horseback. … In 1992, an Air Force lieutenant colonel wrote an essay for the National War College called “The Origins of the American Military Coup of 2012,” which began with the perceived failure of civilian politics to address the nation’s problems. The author, Charles Dunlap, who is now a two-star general, meant this as a cautionary tale. His paper began with this quote from John Adams: “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.” Tempting as the thought is when watching the Senate on C-SPAN, we can’t really hope for a coup.
Or can we? As America became less and less recognizable over the last two years, the prospect of an “enlightened military coup” must have occurred to many Americans. Despite the military’s ethos of honor, no American in his right mind wants a coup d’etat, nor wants the states to secede, nor welcomes an Article V convention. But what’s a patriot to do? Our government is dysfunctional. Even faced with financial Armageddon, Congress could not restrain itself from larding up TARP with pork. In the face of trillion-dollar deficits, Congress still cannot stop its infernal spending.
Before we take extreme measures, let’s see if the High Court will give us a little clarity on the extent of the feds’ power and reach. Let’s give the Supremes a chance to shed light on the meaning of the Commerce Clause. Let’s ratify a Balanced Budget Amendment. Let’s get the new Congress to send over a thousand rescission bills. Let’s see if we can restore America by forging a new appreciation for our founding document, for …
With no Constitution, there is no America.
This article originally appeared at David Horowitz’s NewsRealBlog.