A recent court decision has ruled that the president can use money to fund stem cell research which is something I find blatantly unconstitutional because it is congress that decides how to spend the money. It says that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” which means that every dollar spent is spent according to the law and not according to Obama’s will which is what the court ruled. The court has seem to forgotten (and quite conveniently) that it is congress that decides how money is spent and not any other branch of the government.

It may seems that the only thing that we can do is pray that the courts come to their senses but if the people in congress actually read the constitution they would realize that they have a special power in article III Section 2 that allows them to create exceptions for what cases the federal courts can preside over. It states “with such Exceptions, and under such Regulations as the Congress shall make” which gives congress the ability narrow the range of cases of which then can hear. This was done to make sure that the federal courts can’t re-invent the law as they see fit since congress can remove their power to preside over what they establish as an exception. Its meant as a check on the federal court system which reminds them that the law means what congress says it means. This may fly in the face of proponents of living constitution theory but the courts are not empowered to interpret the law in any manor that is inconsistent with the intended meaning of the legislators that crafted it intended.

This power is already being used by people like Ron Paul because he has a bill in the House of Representative that would do away with the Roe V. Wade precedent by not allowing the courts to preside over any cases that would use that precedent. Any attempt to invoke this precedent would remove the courts power over the case which would essentially nullify the precedent itself. Roe V. Wade would simply vanish in our federal court system.

This power can also be used to uphold the sovereignty of the states to regulate firearms if it wanted to. The case of McDonald V The City of Chicago established a precedent that violated the sovereignty of the state of Illinois because it declared that the state can’t use its tenth amendment rights. As you already know any power not given to the federal government is reserved for the states and there is no power to regulate firearms by the federal government so naturally that power must fall to the states. No matter how you feel about the regulation of firearms it is simply the decision of states to regulate firearms as they wish and in order to correct this congress can utilize its power to establish an exception for this particular precedence.

This power has no limitations so imagine what would happen if congress established an exception for the second amendment itself. Every question about the constitutionality of either state or federal gun laws will be settled by the state’s own court system. The state would become the sole decider of whether its own gun laws are constitutional and, more importantly, they would be the sole decider of whether federal gun laws are constitutional. The state would assume all judicial power over that particular aspect of the constitution since federal courts can not preside over it.

In order to make the states the final decider of the constitution we must cast a much wider net over the entire constitution itself. This very wide exception will allow any questions about the constitutionality of any federal or state law to be determined by the state’s own court system. This may sound extreme but it may be the only way to correct a hundred years of progressive case law that has distorted the constitution because it will make previously established case law irrelevant. It will also take the idea that states are the final decider of the constitution from an ideological stance to something that can be implemented in real life.

Edward Browning Bosley
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