A Different Take on Federalism Part II

Subtitle – Scotus Guts the 14th Amendment.

Independence is one thing, but when applied to government, unchecked independence is another term for tyranny. While the mode of appointment to the federal bench affords the courts independence from elections, the framers’ Constitution armed congress with significant, yet unfortunately, unused Article III checks. Thanks to the 17th Amendment which de-federalized and democratized congress, congress is typically incapable of asserting its 13th-15th Amendment enforcement duties over an “independent” and often runaway scotus.

Make no mistake; just as the “exceptions and under such regulations as the congress shall make” clause of Article III empowers congress to deny scotus jurisdiction over certain cases, so too did the closing clauses of 13th-15th Amendments constitutionally exempt an entire CLASS of cases related to fundamental rights from scotus review. Unlike the pre-civil war Constitution, the post-civil war amendments specifically charged congress with enforcement. “Congress shall have the power to enforce this article by appropriate legislation,” (or equivalent wording) closes the 13th – 15th Amendments.

In response to a civil war largely blamed on excessive states’ rights and a scotus friendly to slavery, the 13th-15th Amendments lodge extraordinary authority in congress to protect the people’s natural, religious, civil and political liberty. From the last sections of the amendments, congress and congress alone is responsible for their enforcement. Congress was to determine the constitutionality of law based on these amendments, and the only appeal was to a subsequent congress, not scotus. Any surplus or ancillary judicial authority in scotus is subject to congressional law. In other words, scotus is not empowered to determine the boundaries of involuntary servitude, the Bill of Rights, privileges, immunities, due process, equal protection or voting rights. This is the duty of congress.

A congress subject to a senate of the states wisely put these awesome powers to use in 19th century civil rights acts. Until the 17th Amendment, scotus generally accepted its inferior position.

Much of the trouble the scotus made for itself and civil society these past few generations are from its attempts to substitute its concept of federalism for that of the pre-1913 state-appointed senate. Thanks to a popularly elected senate, an unaccountable scotus increasingly involves itself in political and societal matters constitutionally lodged in an elected and theoretically accountable congress. Just because the people are not covetous of federalism and do not keep as tight a leash on their senators as the pre-17th state legislatures isn’t justification for scotus to supplant congress’ 13th-15th Amendment duties.

It just doesn’t work.

To illustrate, in 1993, the entire House of Reps and ninety-seven senators passed the Religious Freedom Restoration Act RFRA which Bill Clinton signed into law. In City of Boerne v. Flores (1997), scotus attempted to protect a “federal balance” that ended in 1913. When scotus shot down the RFRA, it brazenly and unconstitutionally denied congress its legitimate 14th Amendment authority to better secure religious liberty.

Just as its Dredd Scott decision widened the political divide and accelerated events toward civil war, scotus usurpation of congress’ 14th Amendment enforcement may lead to similar results. As related in the Hillsdale College February Imprimus, Christopher Caldwell describes the origins of two Americas, each living under their own Constitution.

The first is the written Constitution that guides my typical reader. The second is a warped and soiled Constitution enabled by the 17th and scotus that birthed, from abuse of the 1964 Civil Rights Act, and a wild Equal Employment Opportunity Commission, a second society of abortion barbarians, diversity-is-our-strength fools, economic equality at any cost radicals, and homosexual, racial, LGBTQ, gender fluid tribes that look upon you and me as hopeless racists unworthy of free association who are only fit for reeducation camps.

Ever our popularly elected Congress did not and would never consider passing any of these outrages into law.

Just as justice Roger Taney earned eternal infamy when he denied that “all men are created equal” applied to black men, so too will history tag “sweet mystery of life” justice Anthony Kennedy for his fifth vote to constitutionalize homosexual marriage.

So, when you wonder what happened, when you wonder why you are powerless to stop school indoctrination of your kids or grandkids in the joys of rump-rodeo, thank an untethered scotus enabled by a neutered, elected senate too frightened to do its 14th Amendment duty.

2 thoughts on “A Different Take on Federalism Part II

  1. Dale Leitzke

    Your opinions are certainly worthy of respect and well stated. My perspective is summarized in the question ‘ What would our founding fathers do? We have some points of agreement and some points of disagreement. SCOTUS has received criticism from differing sides of the political spectrum. Each side points out rulings that seem more like legislating from the bench than constitutional jurisprudence. Perhaps those hot-button issues like abortion, gay rights, and gun rights should not be left to the courts.

    And Congress is scared to death of touching these issue for fear of political reprisal from one side or the other.

    Would the Founders object to partial oversight of SCOTUS with Congress having the power to overrule at their political peril?

    A better balance of power can be achieved.

    Your educated reply would be appreciated.

    1. Rodney Dodsworth Post author

      I’m not sure I can do your thoughts justice without writing another squib! What would our Founders do? Your opinion is as informed as mine, but here goes. I suspect they would lament the conflation of consent of the governed with a purely popularly derived Congress. The first attempts to democratize the senate occurred in the 1830s. Young Abraham Lincoln himself noted the decline in recognition of first principles. So, the ripple that started in the 1830s grew to a tidal wave by 1910. Some states instructed their senators to support the 17th Amendment! Senator George Hoar of MA wasn’t alone when he feared the people were about to make a mistake whose effects would be proven deadly. Among them, he predicted a movement to directly elect Presidents. At a minimum, he worried about the sorts of bills that a democratically elected senate would pass. He was right. Today, there isn’t a dimes worth of difference between the rants of Pelosi and Schumer.

      As for oversight of congress, repeal of the 17th Amendment would eventually put scotus back to where it belongs. I’m not in much favor of band-aids short of repeal.

      Best Regards, Rod

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