January, 2019

WHAT ARE SUPREME COURT PRECEDENTS?

What are they?
How do they effect the Constitution?

In the past two years, we have twice witnessed the grilling the Senate Judiciary Committee has given Supreme court nominees; the last of which was beyond belief in its nastiness.  One of the questions asked of the nominee is what he would do with Roe v. Wade - the legalization of abortion.  Both nominees said that Roe v. Wade is a precedent - a law that is set in stone; suggesting that it cannot be changed.

So, with that in mind, consider this: Supreme Court precedents are rulings made by the Supreme Court which change the meaning of, or the intent of the Constitution.  These precedents become the law, despite the fact that the Constitution strictly forbids the Supreme Court to do that.

Let's go back to the beginning.  The Constitution is the framework which set into motion a grovenment "of the people, by the people, and for the people;" confined to the parameters set by the Constitution itself.  It specifically forbids the federal government from being involved in anyting not directly outlined for it in the Constitution.  Everything else was to be left to the states.  The Constitution set uip three "seperate but equal" branches; none of which had any control over the others; with one exception: the Legislative Branch (our elected representatives) were given impeachment power over the Supreme Court Justices and the President.

However, not long after the Constitution was ratified, the Supreme Court ruled that a law passed by Congress and signed by the President was unconstitutional.  That ruling was unconstitutional, because the Constitution did not give the Supreme Court any authority over Congress or the laws it passed.  So, the following day, Congress started impeachment procedings against the five justices which had ruled against Congress.  The impeachment process was stopped when the five justices reversed their decision.  However, that ruling became a precedent (a new law) which trumps the Constitution, and is the basis now giving the Supreme Court the right to control Congress by overruling laws passed by our duly elected representatives. 

Some years later, a case involving the President (President Madison) came before the Supreme Court.  The Court ruled against the president; again exerting a power over the Executive Branch which was outside of its Constitutional jurisdiction.  What happened?  President Madison simply ignored the Supreme Court's ruling.  He refused to abide by their decision.  However, that ruling by the Supreme Court became a precedent - a law - which today gives the Court the right to control the Executive Branch of our government; a power which the Constitution does not give the Court.  It is precedent - it is the law!

As you can see, these two precedents the "separate but equal" status of the three branches of government, has left the Legislative and Executive branches subservient to the Supreme Court, which now has more power and complete oversight of the other two branches.

There are literally thousands of these precedents that have been enacted by the Supreme Court over the last two plus centuries.  But when you start adding additional precedents on top of precedents, you get farther and farther from the Constitution itself.  

I hear conservatives say we need to interpret the Constitution based on a literal interpretation of what the words say, and what the founding fathers meant when they wrote those words.  Folks, you can't to that anymore!  Supreme Court rulings aren't based on the Constitution anymore.  They are based on these thousands upon thousands of precedents.

Let me take you down just one of the thousands of trails we could pursue.  Under the Constitution, the Supreme Court (or for that matter, the entire federal government) is forbidden to be involved in any matter that is strictly confined within the boundaries of any state.  Such dispites were purposely left to the states themselves by the authors of the Constitution.  But in 1940, the Supreme Court took on a case of a dispute between a Labor Union, and a local business which the union was striking.

Now I must insert here that the Constitution has just two requirements that go back upon the states.  The first is that each state must be organized in the same fashion as the federal government - it must be organized as a Republic.  The second is, that in federal elections (and in federal elections only) every citizen is entitled to one vote, and that vote must be equal to each other voter.  Those are the only two requirements of the Constitution that the federal government can enforce on the states.

But, OOPS!  The justices on the Supreme Court noticed that there have been three amendments added to the Constitution which also make requirements on the individual states.  All three go back to the Civil War and the abolition of slavery.  The first abolished slavery and set the slaves free.  That became a constitutional requirement that went back on the states.  Because many of the former slave states, while setting the slaves free, still refused to grant them citizenship, and the privileges of citizenship.  So, an amendment was added that granted all persons born in the United States automatic citizenship.  That one has come back to bite us now with illegal immigrants coming into the United States while pregnant to have their babies.  The other amendment had to do with voting rights.  Many of the former slave states refused to grant the freed slaves the right to vote.  So, that addition to the Constitution came back on the states.
So, now we have a total of five items in the Constitution that become requirements of the states.  However, the Constitution still forbids the federal government to interfere with the individual states except in these five areas. 

Now, let's get back to the 1940 case of a Labor Union v. a local business.  The Supreme Court, in its ruling, set a precedent - a new law - a court initiated change to the Constitution.  It ruled that because these five requirements rolled back on the states, therefore everything in the Constitution goes back on to the individual states.  Wow!  In effect, the Supreme Court took over control of the individual states.  Based on that precedent, the Supreme Court can declare portions of State Constitutions to be unconstitutional, and they have done that many times.  They can declare laws passed by state legislatures and city council's to be unconstitutional, and they have done that many times.  That was never the intent of the founding fathers, nor the intent of any of the state leglislatures which ratified the Constitution.

Let me take you down just one path to show you what that precedent has done.

All of the state legislatures, with the exception of Utah, were originally set up identical to the federal congress.  Remember, that the only two requirements in the Constitution which affected the individual states were: (1) Each state government must be set up as a republic, as is the federal government, and (2) In federal elections, and federal elections only, each citizen of each state must have one vote, equal to the voting power of every other individual in all of the other states.  According to the Constitution, those are the only two things that are required of the individual states.  Apart from that, the Constitution does not apply to the states.

Now, let me take you down the parth of item number two as it is affected by the 1940 precedent that ruled that the Constitution trumps the states.

Congress is set up with two bodies.  The House of Representatives is based on population, with small states having many fewer representatives than the large states.  For instance, Wyoming has only one representative, and, frankly does not have enough population to support that one.  California has 53.  That means that California, along with three of the other largest states could hold the rest of the country hostage.  That was the fear of the founding fathers.  So they established a second body - the Senate.  The Senate has two representatives from each state, regardless of the state's population.  So, if the small states feel that something pushed by the large states would negatively impact them, they can quash it in the Senate, and it cannot pass.  The Senate is a counter-balance to protect the smaller states from being controlled by the larger states.

The state legislatures were set uip the same way, with each county being represented in the House of Representatives based on its population; and all the the counties being represented equally in the State Senate.  That meant that each voter in the small population counties had slightly more voting power in the state legislature than did those in the larger population counties.  Despite the Constitutional ban on federal involvement in voting at the state level, the U.S. Supreme Court ruled that such an arrangement was unconstitutional, overturning a system which had been inaugurated, and blessed by the authors of the Constitution.

That ruling by the Supreme Court set a precedent, allowing the Supreme Court to intervene in local and state elections; changing the Constitution, and making the statement on voting subservient to the new precedent.  The precedent trumps the Constitution.

So, what was the result of that ruling?  First, it made the neec for two houses in the legislature obsolete and a waste of money.  The Senate now had no purpose.  It could no longer protect the residents of rural counties from harmful legislation which benefited the big cities only.  Second, it made it easier for the party in power to gerrymander the districts to keep themselves in power.  Let me give you two examples.

When I first came to Arkansas, it was a heavily Democratic state.  Most Democrats called themselves "Yellow Dog Democrats."  The definition of a Yellow Dog Democrat is that they would vote for anyone and only ones running on the Democratic ticket even if it was the Devil himself.  In Northwest Arkansas, there were Republican pockets.  So, in order to dilute the Republican vote in Siloam Springs, the Democratic controlled legislature drew a very narrow district that ran up the western side of three counties: less than eight miles wide, and 80 miles long.  Two small population counties, Madison and Carroll, heavily Democratic were put together with the eastern half of Bella Vista in our county, to rob them of their vote.  And the rest of our county, and part of the county to the south were put into a district to dilute the Republican vote in the western half of Bella Vista.  Today, Arkansas had turned heavily Republican, and those gerrymandered districts don't mean much any more.  But the point is that by legislating precedents, the Supreme Court has changed the meaning and the intent of the Constitution almost entirely.

Allow me please one more quick example without going into detail.  Look at the First Amendment in the Bill of Rights.  In 1947, the U.S. Supreme Court took the First Amendment, and based on that ruling in 1940, said that where it says, "Congress shall not..." means not only Congress, but your state legislature, your city council, and even your water and sewer comission and your library board.  Then they turned around the meaning of the second phrase to mean the opposite of what it had meant since the adoption the Constitution.  But, they had a problem.  Now, their interpretation of the second phrase contradicted the third phrase.  What was their answer?  The third phrase was subservient to the second phrase.

Have you ever heard a libral politician say that the Constitution is a living document?  It is, if you don't interpret it literally for what the world say; and what the founding fathers meant when they wrote it.  Even the supposedly "conservative" justices which have recently been added to the court believe in the liberal doctrine that precedent trumps the Constitution.  The Constitution is a "living document" only because we have changed it without amending it.  Think about that!  That means you can make it say anything you want to make it say.

It seems to me that a lot of people believe that same thing about the Bible.  Haven't you heard people says, "You can make the Bible say anything you want to make it say?"  Maybe you've said that yourself.  Yes you can make it say anything you want to make it say, if you interpret it figuratively.  But the Bible is intended to be interpreted literally, for what the words say, unless the Bible itself says that the wording is to be taken as an illustration of something; and then the something is clearly spelled out.

Well, I've gotten off the subject.  The point is that our government no longer functions under the controls of the Constitution as it was given to us by our founding fathers. It has been changed  by legislation written and approved by the Supreme Court, and dubbed as "precedents."
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