Misconstrued Role of the Supreme Court as the Ultimate Interpreter of the Constitution

“[i]n the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are; and are not of themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect.” 

Swift v. Tyson, 41 U.S. (16 Peters) 1, 18 (1842). “I understand the doctrine to be in such cases [i.e., cases in which a court overrules a previous decision], not that the law is changed, but that it was always the same as expounded by the later decision, and that the former decision was not, and never had been, the law, and is overruled for that very purpose.” Gelpcke v. City of Dubuque, 68 U.S. (1 Wallace) 175, 211 (1864) (Miller, J., dissenting).

Also see The “Living” Constitution“Judicial Supremacy” through “Judicial Review”


Misconstrued Role of the Supreme Court as the Ultimate Interpreter of the United States Constitution.

Certainly, Americans were not so childish in the pre-constitutional period—and should not be so silly today—as to need or to seek tutelage in their constitutional political science from the very public officials whom they themselves had or have selected, particularly judges. For, as William Blackstone the Founding Fathers’ preëminent legal mentor pointed out, “the law, and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law”(footnote 1) Neither should Americans today kowtow to judges or other public officials with regard to constitutional interpretation, especially in light of the Supreme Court’s own admissions of its numerous errors in that field over the years and reversed itself numerous times on constitutional questions. (footnote 2)

The Supreme Court’s decisions are no more than previous statements of the views of its then-members on particular legal issues raised by particular litigants in certain specifically defined factual contexts—statements which can be (and in many instances have later been admitted by the Court itself, or recognized by others, to be) wrong, and which are not binding on the Court itself, let alone on anyone other than the original litigants, especially where constitutional issues are concerned. (footnote 3) So, although these decisions may be entitled to whatever respect the force of their reasoning commands, they merit no legal, logical, or factual deference except insofar as they bear on the rights of the actual litigants in a “Case[ ]” or “Controvers[y]”. (footnote 4) And when their reasoning commands no respect, these decisions must be dismissed as legal nullities, except as against the actual litigants themselves. For “no amount of repetition of * * * errors in judicial opinions can make the errors true”. (footnote 5)

No constitutional Republic could long survive if the country is required to take the gut reaction of judges as to its final guide—so that as most decisions of the Supreme Court (if not all courts) today, “the governing standard is *** what might be called the unfettered wisdom of a majority of th[e judges] , revealed to an obedient people on a case-by-case basis. This is not only not the government of laws the Constitution established; it is not a government of laws at all.” (footnote 6)

  • That its decisions on constitutional questions are not laws at all (let alone supreme laws), the Supreme Court itself recognized in the early days of the Republic.

    That its decisions on constitutional questions are not laws at all (let alone supreme laws), the Supreme Court itself recognized in the early days of the Republic: “Judicial power, as contradistinguished from the power of the laws, has no existence. Courts or the mere instruments of the law, and can will nothing.” (footnote 1) “in the ordinary use of language it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are; and are not themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect.” (footnote 2) that is, the courts decisions or mere precedents: previous statements of the views of its then members on particular legal issues raised by particular litigants in certain defined factual contacts—statements which can be (and in many instances have later been admitted to the court, recognized by others, to be) wrong, and which are not binding on the Court itself, let alone anyone other than the original litigants, especially where constitutional issues are concerned. (footnote 3) So, although the Court’s precedents may, be entitled to whatever respect the force of the reasoning commands, they merit no legal, logical, or factual deference except as they bear on the rights of the actual litigants in a “Case[ ]” or “Controvers[y]”. And when their reasoning commands no respect, precedents must be dismissed as legal melodies, except of course as against the actual litigants themselves. Four “no amount of repetition of * * * errors in judicial opinions can make the errors true”. Four “no amount of repetition of * * * errors in judicial opinions can make the errors true”. (footnote 4)

    Moreover, the Constitution itself refutes the modern claim that “the federal judiciary is supreme in the exposition of the law of the Constitution”. (footnote 5) Article III states not only (by way of location) that “[t]he judicial power shall extend” only to certain defined types of “Cases” and “Controversies” involving certain categories of litigants. (footnote 6) logically, that may render the decision of a court on a constitutional issue the “law” of such a particular “Case[ ]” or “Controvers[y]”, in the sense that it binds the litigants and their privies. But in no way suggests, let alone compels—indeed, it implicitly refutes—the contention that the decision is also the law of the land, in the sense that it binds anyone, let alone everyone, else who was not a party two that “Case[ ] or “Controvers[y]”. (footnote 7)

    1.) Osborne v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824).

    2.) Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842). “I understand the doctrine to be in such cases [i.e., cases in which a court overrules a previous decision], not that the law is changed, but that it was always the same as expounded by the leader decision, and that the former decision was not, and never had been, the law, and is overruled for that very purpose.” Gelpcke v. City of Dubuque, 68 U.S. (1 Wall.) 175, 211 (1864) (Miller, J., dissenting).

    3.) Numerous opinions of the Supreme Court have recognized this limitation on the binding nature of judicial precedents in constitutional adjudication. E.g., Payne v.Tennessee, 501 U.S. 808, 827-30 & n. 1 (1991); Thomas v. Washington Gaslight Co., 448 U.S. 261, 272 n. 18 (1980); Mitchell v. W.T. Grant Co., 416 U.S. 600, 627-28 (1974) (Paul, J., concurring) (“especially with respect to matters of constitutional interpretation * * * if the precedent or its rationale is of doubtful validity, then it should not stand”); Coleman v. Alabama, 399 U.S. 1, 22-23 (1970) (Berger, C. J., dissenting) (denying “that what the court said weight we controls over the Constitution”); United Gas Improvement Co. v. Continental Oil Co., 381 U.S. 392, 406 (1965) (Douglas, J., dissenting) (“issues of [constitutional] magnitude are always open for re-examination”); Gideon v. Wainwright, 372 U.S. 335, 346 (1963) (opinion of Douglas, J.) (“All constitutional questions are always open”); James v. United States, 336 U.S. 213, 233 (1961) (Black, J., Concurring in part and dissenting in part); Burnett v. Coronado Oil & Gas Co., 285 U.S. 393, 405 (1932) (Stone, J., dissenting); Pollock v. Farmers Loan & Trust Co., 158 U.S. 601, 663 (1895) (Harlan, J., dissenting) (“in a large sense, constitutional questions may not be considered as finally settled, until settled rightly”); Marshall v. Baltimore & Ohio Railroad, 57 U.S. (16 How.) 314, 343 (1854) (Daniel, J., dissenting) (relying one precedents “must be fruitful of ill when it shall be rested to the suppression of reason or duty, or to the arbitrary maintenance of injustice, of palpable error, or of absurdity”). This weakness of stare decisis in constitutional “Cases” is, of course, perfectly in keeping with the logic of a “living” Constitution. Under a constitution interpreted honestly according to original intent, conversely, stare decisis arguably should be a stricter. See, e.g., T. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (7th ed 1903), at 79-88; Chamberlain, “The Doctrine of Stare Decisis as Applied to Decisions of Constitutional Questions”, 3 Harvard L. Rev. 125 (1889), at 130-31.

    4.) Wallace v. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, C.J., dissenting).

    5.) Cooper v.  Aaron, 358, U.S. 1, 18 (1958).

    6.) U.S. Const. art. III, §§ 1, 2.

    7.) See Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution, (Chicago, Illinois R R Donnelly & Sons., Inc., GoldMoney Foundation Special Edition [2011] of the Second Revised Edition, 2002) by Dr. Edwin Vieira, Jr., Volume I, page 45-46.

  • ‘Precedent’ is not law nor is it insulated from constitutional attack and can never gain legitimacy through the antiquity of practice.

    No subsequent legislative or judicial “precedents”—or, more accurately described, later innovations—can rewrite the Constitution. “[W]hen the meaning and scope of a constitutional provision are clear, it cannot be overthrown by legislative action, although several times repeated and never before challenged.” (footnote 1) “[N]either the antiquity of a practice nor * * * steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack”. (footnote 2) Surely, if “a bold and daring usurpation might be resisted, after * * * [long and complete] acquiescence”(footnote 3) then a mindless “[g]eneral acquiescence cannot justify departure from the law”, (footnote 4) no matter how long it may have continued. “Illegality cannot attain legitimacy through practice.” (footnote 5)

    Footnotes:

    1.) Fairbank v. United States, 181 U.S. 283, 311 (1901).

    2.) Williams v. Illinois, 399 U.S. 235, 239 (1970), quoted in Pacific Mutual Life Insurance Company v. Haslip, 499 U.S. 1, 18 (1991).

    3.) McCulloch v. Maryland, 17 U.S. (4 Wheaton) 316, 401 (1819).

    4.) Smiley v. Holm, 285 U.S. 355, 369 (1932).

    5.) Inland Waterways Corporation v. Young, 309 U.S. 517, 524 (1940).

  • The Supreme Court upheld FDR’S ‘executive order’ for the indefinite detention of Japanese-Americans. Justice Robert Jackson’s ominous warning of this ‘precedent’.

    Some forty-six years after Roosevelt’s Executive Order No. 9066, of 19 February 1942  for the indefinite detentions of Japanese Americans on American soil, Congress recognized the crime. Thus proving the prescience of Justice Robert Jackson’s ominous warning in his dissenting opinion when the Supreme Court upheld the internment of innocent Japanese-Americans, that

    “once a judicial opinion rationalizes [a governmental act] to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an [act], the Court * * * has validated the principle. * * * The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds the principle more deeply in our law and thinking and expands it to new purposes. * * * There it has a generative power of its own, and all that it creates will be in its own image.” (footnote 1)

    Footnotes:

    1.) Korematsu v. United States, 323 U.S. 214, 246 (1944) (dissenting opinion).

  • Any sitting judge may lose their Office if their actions do not conform to the constitutional standard of ‘good Behaviour’.

    All judges take the required oath that they “shall be bound by Oath or Affirmation, to support th[e] Constitution”. (footnote 1)  Self-evidently, no official could be “bound” in any meaningful sense if, when he transgressed the Constitution, he could nonetheless evade punishment by interposing some purported immunity supposedly derived from his office. An “Oath or Affirmation, to support th[e] Constitution”, taken as a condition of holding office, cannot grant a license to violate it. Therefore, no such immunity can exist for any official.

    The Constitution recognizes “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour[.]” (footnote 2)—the necessary implications being that such “Judges” may lose “their Offices” for “[bad] Behaviour”, and that this “[bad] Behaviour” need not descend to the depth of an impeachable offence (for otherwise this clause would be unnecessary). (footnote 3)

    Footnotes:

    1.) U.S. Const. art. VI, cl. 3

    2.) U.S. Const. art. III, § 1

    3.) See Edwin Vieira, Jr., How To Dethrone The Imperial Judiciary (San Antonio, Texas: Vision Forum Ministries, 2004) Part II, Chapter 14.

Nowhere in the Constitution are judges granted “life tenure”. On the contrary, the Constitution recognizes that any sitting judge can be removed if an aberrant course of unconstitutional decision making fails to meet the standard of “good Behaviour”. (footnote 7)

Court’s decisions are not conclusive, inasmuch as the Supreme Court itself has admitted error and reversed itself numerous times on constitutional questions. (footnote 8)

The idea that decisions of courts are laws, at all in the sense of constitutional provisions and statutes are, came into vogue only after publication of Grey’s “The Nature and Sources of Law”, in 1909. (footnote 9)

  • Footnotes

    1.) Sir William Blackstone, Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 1, at 71 (emphasis on the original).

    2.) See, e.g., Payne v. Tennessee, 501 U.S. 808, 828-830 & note 1 (1991). Indeed, various Justices have often candidly admitted their duty to correct the Court’s misreadings of the Constitution. See, e.g., Mitchell v. W.T. Grant Company, 416 U.S. 600, 627-628 (1974) (Powell, J., concurring) (“especially with respect to matters of constitutional interpretation * * * if the precedent or its rationale is of doubtful validity, then it should not stand”); Coleman v. Alabama, 399 U.S. 1, 22-23 (1970) (Burger, C.J., dissenting) (denying “that what the Court said lately controls over the Constitution”); United Gas Improvement Company v. Continental Oil Company, 381 U.S. 392, 406 (1965) (Douglas, J., dissenting) (“issues of [constitutional] magnitude are always open for re-examination”); Gideon v. Wainwright, 372 U.S. 335, 346 (1963) (opinion of Douglas, J.) (“all constitutional questions are always open”); Pollock v. Farmers’ Loan & Trust Company, 158 U.S. 601, 663 (1895) (Harlan, J., dissenting) (“in a large sense, constitutional questions may not be considered as finally settled, until settled rightly”). This is why the Supreme Court is an especially weak reed on which to lean when inquiring into the true meaning of the Constitution. Yes, the Court can set aside an incorrect opinion for a correct one. But until that happens, most public officials will treat the incorrect opinion as a valid “precedent” under the doctrine of stare decisis. See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-869 (1992) (opinion of O’Connor, Kennedy, and Souter, JJ.). Worse yet, being always subject to the fallibility of human reasoning, the Justices can arrive at an incorrect opinion in the first place, and even set aside a correct opinion for an incorrect one, and never hear another case that raises the issue on which they erred. Thus, a decision of the Supreme Court, by itself, can never answer a constitutional question definitively. Rather, each decision of the Court on such a question always poses the further conundrums of (i) whether the Justices have actually answered the original question sub judice, and if so (ii) whether what they have opined about that question is correct or incorrect. Sometimes, decisions of the Court are obviously correct, or can easily be proven to be so. In that eventuality, they can be cited as prima facie evidence on the points at issue. But more than that cannot be attributed to them.

    3.) Numerous opinions of the Supreme Court have recognized this limitation on the binding nature of judicial precedents in constitutional adjudication.

    4.) U.S. Const. art. III, § 2.

    5.) Wallace v. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, C.J., dissenting).

    6.) Compare W. Douglas, The Court Years, 1939-1975 (1980), at 8 with Morrison v. Olson, 487 U.S. 654, 712 (1988) (Scalia J. dissenting). If such principles truly were vague, though, rather than being “what the judges say it is”, the Constitution pro tanto would be no “law” at all. See, e.g., Connally v. General Construction Co., 268 U.S. 385, 391, 394-395 (1926).1.) Numerous opinions of the Supreme Court have recognized this limitation on the binding nature of judicial precedents in constitutional adjudication.

    7.) U.S. Const. art. III, § 1.

    8.) Id. at 2.

    9.) See J.Grey The Nature and Sources of Law (1909), §§ 528-50, discussed in 2 W. Crosskey, Politics and the Constitution in the History of the United States (1953), at 904-06.