The Imperial Judiciary
Does the Constitution provide for judicial supremacy through the process of judicial review? Attorney Edwin Vieira, J.D. answers with an emphatic "No!" in his book Imperial Judiciary.
Vieira makes a convincing argument that the Supreme Court (and other courts as well) have pulled off the equivalent of a coup d'etat. They believe, and too many Americans believe with them, that an opinion of the Supreme Court is a part of the Constitution. If the opinion contradicts the Constitution, then the Constitution, according to this view, has been amended. Overlooked is the simple fact that an unconstitutional decision of the Supreme Court is not worthy of respect and should be ignored by all other officials who have taken the same oath of office taken by the judges.
If there are competing interpretations of the Constitution among officials in different branches of government, "We the People" are to decide the issue at the ballot box.
Consider that the Supreme Court has the authority to make decisions only in those areas We the People have delegated. A look at Article III of the Constitution does not reveal a heavy work load for the Supremes: the court has original jurisdiction in cases involving states as well as diplomats. All other cases are brought on appeals, and if the lower courts are eliminated by Congress which has that authority, that ends the discussion.
The Congress does not need to send a constitutional amendment to the states when the Court makes an unconstitutional decision. There is nothing to amend, just correct by legislation (or impeachment) removing jurisdiction.
No jurisdiction, no cases, no bad decisions. What is stopping that from happening? The Congress. They have not used the power they have. Why? Well, two reasons. One is that "We the People" have not demanded that the members of Congress act. A second reason is that until We the People act, the Congress enjoys passing the buck to the Supreme Court saying, "We have to do this because the Court said so." This charade will continue until We the People make it happen.
If the Court can indeed amend the Constitution with a five-to-four majority, are we to believe that the Court can re-amend by the same vote of five judges the next time around? You have to agree that, even though this is not in the Constitution, such power is more efficient than getting two-thirds of the Congress and three-fourths of the state legislatures to concur. The only problem seems to be that the Supremes are acting outside the law. No wonder they want us to believe in an evolving Constitution (as long as they are the agents of evolution).
One of the excuses for the audacious claim to amending the Constitution by judicial fiat is reference to foreign law and international morality. This, of course, can mean anything a judge wishes to say it means. Who is to interpret what foreign law? That of Cuba? France? Iran? Whose morality? Kofi Anan and the UN kleptocrats? Or perhaps the thugs ruling China? Yet the Supreme Court has used this fiction to attack the capital punishment laws of the states with absolutely no authority to rule in this area. Again, the Congress needs to strip the ability to bring such cases to the lower courts (if not eliminating those courts altogether!).
If foreign law can be used to legalize sexual behavior that has been illegal in the states and progressively eliminate capital punishment, it is only a matter of time until the Court decides that:
* euthanasia is legal (after all, the Dutch think it's great),
* search and seizure protections are replaced by the greater interests of the state to invade our privacy (works for the Chinese Communists),
* political dissent is stifled (Castro tolerates none of that), and
* firearms ownership is reserved for those working for the government or who belong to select hunting clubs (just like England and most other countries of the world).
Second Amendment supporters should be aware that the 1997 Brady Law decision by the Supreme Court (Printz v. U.S.) includes a minority opinion by Justice Stephen Breyer. He argued that the Court should have decided the case by looking at the comparative experiences of other countries. In other words, the thought that foreign law could trump the Second Amendment has already been polished by the foreign-law loving members of the Court.
Vieira puts gun control in an interesting perspective by comparing the notion that "gun control" is permitted by the Second Amendment the same way as "occupational control" is permitted by the Thirteenth Amendment which abolishes slavery.