Ultimate Power

In three momentous rulings, the Supreme Court has now radically altered the U.S. Constitution. To the Founders, the whole point about their government was to separate powers so that different institutions checked each other's supremacy so no one could impose a single ideology or religion or threaten the civil or property rights of society. In the space of one single month these three decisions managed to undermine the central doctrines of federalism, private property rights and religious free exercise.

For most of its history, the American Supreme Court was considered the "weakest" branch, as it was designated in the Founders' Federalist Papers. Until the Dred Scott decision prior to the Civil War overruled the Missouri Compromise, no Court even claimed the right to declare laws of Congress unconstitutional unless they directly affected the privileges of the judiciary. In regard to the states, Supreme Court power was restricted to "federal issues" which were seen as limited to those enumerated in the Constitution, primarily in Article I, Section 8. While federal courts gradually expanded the reach of federal issues, especially through the Commerce Clause, it was not until the progressive courts in the early 20 th Century under Oliver Wendell Holmes "incorporated" the national Bill of Rights to apply to the states that the Supreme Court began to claim to be the ultimate arbitrator of the Constitution over both Congress and the states.

This process reached its logical culmination in the three recent decisions. Chief Justice William Rehnquist and Justices Clarence Thomas and Sandra Day O'Connor recited the facts in Raich vs. Gonzales: Dianne Monson had personally grown and used marijuana for her own medical use on her own property. The product was never bought or sold; it had no "demonstrable" affect on any market, and it certainly never crossed state lines to become interstate commerce in a normal understanding of the term. Moreover, it was legal under her state's law. Justice Thomas concluded: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything." With the Supreme Court majority ruling this as a legitimate national intervention, the U.S. Constitution was "no longer one of limited and enumerated powers."

In the second case, Kelo vs. City of New London, Thomas criticized the Court's five member majority for redefining the Constitution's "public use" standard for taking individual private property into a much more dangerous "public purpose" test that will now not merely affect one state but the whole nation. The Fifth Amendment specifies that government must not take private property except for a "public use," for which the government must pay "just compensation" to the owner. "This differential shift in phraseology enables the Court to hold, against all common sense, that a costly urban renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a ‘public use.'" Justice O'Connor added that: "Any property may now be taken for the benefit of another private party but the fallout of this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms," so that the weaker original property owners are not likely to receive just compensation.

The Supreme Court followed with two decisions regarding public displays of the Ten Commandments, one in Kentucky and another in Texas. In these, the court divided four to four over interpreting the First Amendment's right to free exercise of religion. The progressive four argued government must keep strict "neutrality" about religion and so should not allow religious displays at either site. The conservative group said the Founders allowed such state displays and that to remove these local monuments represented not neutrality but "hostility to religion." Chief Justice Rhenquist argued that "Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul" of the First Amendment. The deciding vote was Justice Stephen Breyer's who opposed the display in Kentucky but supported the one in Texas based on how he judged the facts of the case. While he found the "purpose" in Kentucky was religious, in Texas "as a practical matter of degree" the display was "unlikely to prove divisive."

In many ways, the Ten Commandment decision is the most disturbing. While Justice David Souter argued for the progressives that allowing the Ten Commandment displays would place government in the business of choosing one religious interpretation over another, this was precisely the consequence of the two decisions considered together. A vote of the high judges determined in their two decisions that one religious wording and purpose was unconstitutionally religious and the other was constitutionally religious. Since it is the detailed facts and degrees that now matter rather than a principle of rights or jurisdiction, the Supreme Court must get more and more into the business of separating unconstitutional and constitutional religion in the future, the very essence of choosing one type of religion over another.

The conjunction of these revolutionary rulings with events in Iran and the crucial decisions of its Council of Guardians interpreting its constitution inadvertently raise disquieting parallels. The Guardian Council of the Constitution, its formal title, is composed of twelve members as opposed to nine but, unlike the U.S., it is specifically granted the power in the constitution to veto all laws passed by the legislature, including recent ones on elections and who can participate in them. Clearly, the Guardian Council and the Supreme Court differ. Only half of the members of the Council must obtain legislative advice and consent. In some ways, the Supreme Court is more powerful than the Council. Unlike the U.S. Court which now claims its decisions are final, the Guardian Council must refer vetoed laws back to the legislature for revision. If the legislature and Council cannot agree, an Expediency Council whose membership largely overlaps that of the Council (both of which are dominated by appointees of the Supreme President) becomes the ultimate arbitrator of the constitution.

Of course, Justice Breyer is correct in the sense that once principal is set aside, it is impossible to make such determinations other than by a practical weighing of the facts. But to do this at the national level by one supreme court is to create a council of guardians that will finally have to rule on every facet of each particular case when appealed from the political institutions to the courts as the final authority. Indeed, as one also reviews the other major decisions of this court this term--on whether a person assisting someone claiming sexual discrimination is also protected from being fired, if one can be guilty of age discrimination without intending prejudice, whether an 18 year old can be given the death sentence, if police can search for drugs without probable cause, whether an accounting firm can be held responsible for the Enron collapse, if movie and music file-sharing actually violates copyright, whether Congress can set mandatory guidelines for prison sentences and on and on--the Council analogy to the reach and power of the U.S. Supreme Court does not seem overwrought.

That is why the Founders in their wisdom left these matters to the states in a decentralized federal system. Indeed, this involvement of national courts in making uniform "practical"--and, thus, necessarily arbitrary rather than principled decisions--represents a conscious turning away from federalism and the legislature and instead pushing all decisions to the top so non-political experts can decide. This was the explicit plan of the progressives who succeeded first in the late 19 th Century under the masterful Woodrow Wilson to centralize power in the presidency and then, when that was undermined by later Congressional reassertions of power, shifting ultimate power to courts that were isolated from popular influence. For many years, this power of the courts went uncontested. Yet, as it has issued more and more controversial decisions, the process has become more politicized. Justice O'Connor's retirement has set off a battle royal to obtain the swing seat on the council that finally decides all major domestic issues. The power of the Supreme Court to ultimately decide constitutional issues has even now come into question, as Thomas and the others did in the recent decisions. The House of Representatives has even tried on a half dozen occasions to limit the appellate power of the courts as provided in Article III of the Constitution.

What accounts for this historic shift from separation of powers to judicial supremacy? Why is it so difficult for modern Americans to understand with the Founders that ultimate power only resided in the Constitution and that no one branch had the ultimate and final power to interpret it or enforce it, including the "supreme" court? Why do most today accept final authority in the Court without legislative limits by Congress or enforcement prerogative by the president? Why do these ideas seem so foreign today to so many? Joseph Ratzinger explains that having a singular understanding of reality is a fundamental for all peoples. Many cultures express this need in a single God, others in a single mystical vision or rational standard, or leader, or majority or government that has the final word. Christianity broke this consensus in three major ways: by proclaiming a triune-person single rational God, by placing His kingdom in another world, and by demanding that its church be at least somewhat independent of Caesar in this world. It saw unity in the next world coexisting with a triune diversity that sometimes revealed itself in this world, which also was characterized by its rationality, unity and diversity.

This Christian worldview influenced the Founders of the U.S. Constitution to consider a triune national government and a separate diverse system of multiple state governments as a reasonable solution for national unity when most others predicted it could not last because there was no ultimate source of sovereignty. While this worldview survived into the 21 st Century, two major developments weakened it. First, as early as the 1830's, a strong unitarian movement developed within Christianity that questioned a trinitarian God as irrational, which view came to dominate most of the Protestant denominations in New England and through its theology schools, headed by Harvard, to make most of the rest of Christianity at least uncomfortable with the trinitarian view. Second, in more recent years, while nominal adherence to Christianity as demonstrated by opinion polls has remained widespread, a dogmatic secular relativism about religion and a progressive belief that there must be a single best "rational" solution discoverable by top government experts for all social problems have now won wide popular acceptance to further undermine the older trinitarian worldview.

It would take a fundamental change in categorical thinking to reverse these trends. This modern inability to comprehend the idea of unity in diversity of power makes it impossible to see the world as the Founders did. It is not simply a matter of restricting or reforming courts or new members, although these are part of the solution, but of restoring the very way Americans view reality. While this decline in perception will only weaken U.S. institutions gradually, it will have more immediate consequences by undermining America's ability to influence world events. Every serious observer of the situation in Iraq recognizes that peace can only be achieved if the three very different Shiite, Sunni and Kurd peoples have a certain amount of real autonomy in a functioning federal system. But how can Iraqis prudently adopt such a course when they see that federalism no longer works even in the United States?

Donald Devine, Editor.