"Thus Saith The Lord":
When A Supreme Court Should be Replaced, Not Obeyed

(This commentary by EAI President John McClaughry first appeared in the Sunday Herald/Times Argus of October 8, 2000 as a response to commentaries published a week earlier by Times Argus columnist Jack Hoffman and former Attorney General M. Jerome Diamond. It has been slightly expanded here.)

Supreme Courts interpret Constitutions. Whenever a Supreme Court speaks on the meaning of the constitution, is that the last word on the matter? Are the legislative and executive branches bound to meekly obey whatever the Supreme Court proclaims? Can a decision of a state's Supreme Court itself violate the Constitution?

Those questions were aired out on this page last week by columnist Jack Hoffman and former attorney general M. Jerome Diamond, after Republican gubernatorial candidate Ruth Dwyer raised them in the Rutland debate with Gov. Howard Dean. These writers, both enthusiasts for the Court's civil unions decision, agree with Gov. Dean: when the Supremes speak, everybody has to obey. Period.

Hoffman argues that the Court's rulings are by definition constitutional. He decries those who suggest that "the Court is out of control and has lost its authority", suggesting that those persons have suffered an inferior education. Diamond says a legislator can't take an oath to support the constitution and then turn around and undo legislation passed to carry out a declaration of the Supreme Court.

The question of the absolute and incontrovertible authority of a Supreme Court's decision is not a new one in American history. Harvard Law Professor Raoul Berger, in his classic Government by Judiciary (1977), convincingly showed that the framers could scarcely imagine a supreme court invalidating a legislative enactment. Alexander Hamilton argued that the threat of impeachment would keep judges from committing "a series of deliberate usurpations on the authority of the legislature". Even Chief Justice John Marshall, remembered today as the author of judicial review, stated that "a bold and plain usurpation to which the constitution gave no countenance" was required "to invoke the judicial power of annulment."

President Thomas Jefferson, with his customary clarity, affirmed that each of the three branches of government "acts in the last resort, and without appeal, to decide on the validity of an act according to its own judgment, & uncontrouled by the opinion of any other department." To allow the Supreme Court to have final say on constitutional questions, he believed, would be "very dangerous... and place us under the despotism of an oligarchy."

President Andrew Jackson was firmly convinced that the Congress had exceeded its constitutional powers when it chartered the Bank of the United States. Marshall's Supreme Court had held otherwise. When Congress renewed the Bank's charter in 1836, Jackson vetoed the bill. "The Congress, the Executive and the Court must each for itself be guided by its own opinion of the Constitution," Jackson wrote." And he added, as if anticipating Diamond's argument, "each public officer who takes an oath to support the constitution swears that he will support it as he understands it and not as it is understood by others.... The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both."

Jefferson's and Jackson's ire was aroused by Supreme Court decisions that upheld acts of Congress which they believed to be beyond the constitutional power of Congress to enact. It was not until 1857 that the Supreme Court struck down a Congressional enactment not involving the narrow question of the jurisdiction of the Court itself. This was the infamous Dred Scott decision.

Scott was a slave who had lived several years in free Wisconsin Territory before returning to slaveholding Missouri. He sued for his freedom, arguing that his residence in a free territory had emancipated him and made him a citizen. The Court might have avoided the issue by holding, as it had in 1850, that the question of slave or free status should be determined in the state courts. Perhaps unwisely, the Court went far further. It held that Congress could not constitutionally interfere with a slave owner's property interest by prohibiting slavery in a territory. This holding was gasoline on the flaming issue of the extension of slavery.

In the following year a rising Illinois politician named Abraham Lincoln engaged Vermont-born Stephen A. Douglas in seven celebrated debates across Illinois. Central to their debates was the constitutional question posed by the Dred Scott case: could Congress prohibit the extension of slavery into the territories, or did it have to submit to the Court's ruling that it could not?

Lincoln and the early Republicans firmly believed that Congress had and should exercise the power to prevent the evil of slavery from taking root in new territory. In their Ottawa debate Lincoln mocked Douglas' belief that the Dred Scott decision had settled the matter. Douglas' argument, said Lincoln, came down to dumbly reiterating "Thus Saith the Lord" - the Supreme Court must be obeyed. He cited Democratic icons Jefferson and Jackson as agreeing with his own view that the legislative and executive branches are not bound by a wayward opinion of the judiciary.

In the five decades after 1890 progressives and labor unions were increasingly outraged that federal courts were striking down their hard-won state social legislation as unconstitutional incursions on the rights of property and contract. In 1911 these liberal forces in the California legislature passed a sweeping provision for the recall of judges, and gained a 3-1 approval from the electorate in a referendum. In 1986, making use of this provision, California voters removed two Supreme Court Justices for their adamant refusal to enforce the death penalty provisions of the state constitution.

In 1912 the liberal recall movement gained a strong new adherent in ex-President Theodore Roosevelt. He told the Ohio constitutional convention that "when the Supreme Court of a State declares a given statute unconstitutional, because in conflict with the State or National Constitution, its opinion should be subject to revision by the people themselves." His preferred mechanism was a popular referendum vote, which if successful would reverse the Court's decision: "If the courts have the final say-so on all legislative acts, and if no appeal can lie from them to the people, then they are the irresponsible masters of the people."

When Ruth Dwyer describes the Vermont Supreme Court's holdings in the Brigham and Baker cases as unconstitutional mandates, she shares common ground with some very revered historical figures.

For two centuries judicial activism was simply not an issue in Vermont. It was not until 1814 that the Vermont Supreme Court overturned a legislative act, and that was a special private deal for a crony involved in a legal proceeding. Conservative Republican legislatures did not pass much property- or contract-threatening social legislation. Conservative Republican judges believed in strict construction, tradition, precedent and restraint.

In the past decade that venerable judicial tradition has been destroyed by a Supreme Court composed since 1997 of five career government lawyers eager to get out in front of the liberal parade. Unlike the liberals who in 1912 demanded recall of judges who struck down popular statutes, today's liberals, including Hoffman, Diamond, the ACLU, and Vermont Freedom to Marry, now take the positions of the corporate lawyers of 90 years ago: "Thus Saith the Lord."

The case against Vermont's Five Supreme Legislators comes down to this: The Justices each took an oath "not to do anything injurious to the Constitution." Then they proceeded to write their own constitution. Then they decreed that the legislative branch do their bidding - in the gay marriage case, with a judicial gun pointed squarely at the legislature's head.

The Vermont Constitution enumerates numerous specific rights that government is required to protect. These include such rights as freedom of press, assembly, and worship, the right to just compensation when private property is taken for public use, and the right "to keep and bear arms in defence of themselves and the state."

The Court's Brigham and Baker decisions, however, are based on no recognizable rights contained in the constitution. Indeed, as late as 1995 few outside of the ACLU and the Gay and Lesbian Advocates and Defenders believed that any such rights existed. The Five Supreme Legislators, eager to get on the cutting edge of progressive social thought, simply invented new "rights" out of thin air. As Justice John Dooley once put it, sometimes the Court has to go off into "never never land" to reach the result that society needs. In Brigham, in a mere 51 days and without the benefit of a trial record, the Dooley Court invented a bogus history, ignored inconvenient constitutional language, ludicrously reinterpreted ancient cases to support the ACLU's theories, and committed what even Vermont Law School Prof. Peter Teachout, himself a liberal, described as "intentional deception" and "a raw assertion of judicial power". In Baker, the Amestoy Court divorced the "common benefit" clause from all of its historical meaning, rewrote it, coupled it to their own notions of "our common humanity", and overturned 200 years of well-accepted statutory law limiting the benefits and responsibilities of marriage to one man and one woman.

Judicial independence is very important - when the judges are men and women of complete integrity who respect their oath of office and are faithful to the constitution they are sworn to uphold. On close questions of law, citizens ought to give such a Supreme Court the benefit of any doubt even when its decisions are widely unpopular. In cases where the Court strikes down statutes, the legislature can enact new statutes to correct the defects and reassert the will of the people.

But when five justices conspicuously abandon the Constitution they were sworn to defend, when they arrogantly inflict their own views of how the people of Vermont must order their laws and affairs, when they tell the elected legislature to "do what we say, or you'll get even worse", it is time for the people to call a halt. The justices have forgotten their oaths of office, and the Court has entered politics. One of the Five Supreme Legislators is said to have remarked at oral argument in the Baker case, "some state has to be first". Very well. Let Vermonters achieve another first: the first state whose citizens acted to replace five politicized justices with new men and women who will take their oaths of office seriously, honor our constitution, and respect the people they serve.

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October 2000