The joy
amongst folks on the Right over the federal Supreme Court’s overturning of its
prior Chevron ruling in 1984 is understandable. It was a terrible ruling that basically
allowed federal executive agencies to determine the extent of their own
powers. Loper v
Raimondo, handed down by the SC at the end of June, rightly ended that bit
of lawlessness, but at the same time it reinforced a precedent that is every
bit as harmful to justice and limited government: It reinforced the notion that the federal
Supreme Court has the final say on what is constitutional and what is not in
the United States.
Chief
Justice Roberts argues in the majority’s opinion in Loper,
The Framers also envisioned that the final “interpretation of the
laws” would be “the proper and peculiar province of the courts.” Id.,
No. 78, at 525 (A. Hamilton). Unlike the political branches, the courts would
by design exercise “neither Force nor Will, but merely judgment.” Id.,
at 523. To ensure the “steady, upright and impartial administration of the
laws,” the Framers structured the Constitution to allow judges to exercise that
judgment independent of influence from the political branches. Id., at
522; see id., at 522–524; Stern v. Marshall, 564 U. S.
462, 484 (2011).
This Court embraced the Framers’ understanding of the judicial function early on. In the foundational decision of Marbury v. Madison, Chief Justice Marshall famously declared that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” 1 Cranch 137, 177 (1803). And in the following decades, the Court understood “interpret[ing] the laws, in the last resort,” to be a “solemn duty” of the Judiciary. United States v. Dickson, 15 Pet. 141, 162 (1841) (Story, J., for the Court). When the meaning of a statute was at issue, the judicial role was to “interpret the act of Congress, in order to ascertain the rights of the parties.” Decatur v. Paulding, 14 Pet. 497, 515 (1840).
This is the
standard argument we’re all fed in our school textbooks – the Supreme Court in
DC gets the final say. But like a lot of
things in those books, which are mostly written by a bunch of Leftists who love
all-powerful, centralized governments, it isn’t true. Nowhere in the federal constitution is the
final interpretive power granted to the federal courts. That was something John Marshall dreamt up
when he was Chief Justice. Such a power
does not, in fact, lie anywhere in the federal government. Thomas Jefferson, in his famous Kentucky
Resolutions of 1798, written in response to the federal Alien and Sedition
Acts that had made criticism of the federal government a crime, explains where
that power lies and why:
1. Resolved, That the several States
composing, the United States of America, are not united on the principle of
unlimited submission to their general government; but that, by a compact under
the style and title of a Constitution for the United States, and of amendments
thereto, they constituted a general government for special purposes, delegated
to that government certain definite powers, reserving, each State to itself,
the residuary mass of right to their own self-government; and that whensoever
the general government assumes undelegated powers, its acts are
unauthoritative, void, and of no force: that to this compact each State acceded
as a State, and is an integral part, its co-States forming, as to itself, the
other party: that 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; but that, as in all other cases of compact among powers having no
common judge, each party has an equal right to judge for itself, as well of
infractions as of the mode and measure of redress.
The States
themselves are the final judges, by virtue of the fact that they set up the
federal government.
The
flip-side of that coin is that the States therefore have the duty to stop
unlawful actions of the federal government from impacting their citizens. James Madison authored the Virginia
Resolutions of 1798, also in response to the Alien and Sedition Acts, which
declare this without any hem-hawing:
. . .
The rest is
at https://thehayride.com/2024/07/garlington-the-black-lining-around-loper-v-raimondo/.
--
Holy Ælfred the Great, King of England, South Patron, pray for us
sinners at the Souð, unworthy though we are!
Anathema to the Union!
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