In a recent New York Times story, justices on the allegedly non-partisan Supreme Court were reported to be much more likely to rule in favor of free speech if they agreed with the ideology of the plantiff.
According to the Times,
“In cases raising First Amendment claims, a new study found, Justice (Antonin) Scalia voted to uphold the free speech rights of conservative speakers at more than triple the rate of liberal ones. In 161 cases from 1986, when he joined the court, to 2011, he voted in favor of conservative speakers 65 percent of the time and liberal ones 21 percent.
“He is not alone. ‘While liberal justices are over all more supportive of free speech claims than conservative justices,’ the study found, ‘the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.'”
The primary issue with these trends is that adherence to constitutional limitations of power and guarantees of rights is not a partisan issue. If the Supreme Court is to have the power to be the final determiner of constitutionality that it purports to have, it cannot allow its decisions to be swayed by ideology. The Court’s inconsistent application of constitutional principles has removed any moral authority it may have ever used to claim to be the penultimate decider of what is and is not in keeping with the Constitution.
Of course, moral authority aside, the fact remains that the Supreme Court never had the legal authority to have the last word on constitutionality in the first place. Both James Madison and Thomas Jefferson made this case in response to the Alien and Sedition Acts.
Jefferson, in affirming the states right to determine for themselves the constitutionality of federal laws, wrote in his Kentucky Resolution of 1798,
“(T)hat the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.”
Madison, in his concurrent Virginia Resolution, verified the duties of states when he wrote that
“…in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.“
The importance of the individual states fulfilling this function cannot be understated. In 1798 only the two aforementioned states stood against the federal government and declared the Acts unconstitutional. They were, of course, right in this judgment, but were not joined in it by the Supreme Court nor any of the other states.
Regardless, Kentucky and Virginia heroically stood in the face illegal federal actions and rejected the idea of a robed oligarchy. To preserve liberty, states today, and their citizens, must do the same.