Ronald R. Cherry
"We the people" or we the judges
By Ronald R. Cherry
January 9, 2011

Representative Henry Waxman (D-Calif.) recently stated:

"When I went to law school they said the law's what a judge says it is. Whether it is constitutional or not is going to be whether the Supreme Court says it is."

Such an opinion runs counter to that of our Founding Fathers. The men who wrote our Constitution believed that "We the People" should ultimately decide whether or not a law is Constitutional because "We the People" did "ordain and establish this Constitution for the United States of America." Our Constitution was not ordained or established by "We the Judges" and therefore Supreme Court Judges should not be the "ultimate arbiters of all Constitutional questions." Thomas Jefferson specifically refuted the opinion of Henry Waxman in his 1820 letter to William Jarvis:

"You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy... The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots... I know of no safe depository of the ultimate powers of the society, but the people themselves..." Thomas Jefferson

In Marbury vs. Madison the Supreme Court delegated to its self, under Article III, a power to strike down the laws of Congress if the Court believed them to violate our Constitution. This is fine and well, but the question then arises who strikes down un-Constitutional Supreme Court decisions? The question is rhetorical; "We the People" through our elected representatives must be empowered to strike down un-Constitutional decisions of the Supreme Court. One way for "We the People" to override an un-Constitutional Supreme Court is for us to pressure multiple State Legislatures to nullify such decisions within their respective borders. State nullification can also be used to strike down un-Constitutional Federal legislation if the Supreme Court fails in its duty to do so. The power of States acting in concert to enforce our Constitution was expressed by Thomas Jefferson and James Madison in the Kentucky and Virginia Resolutions of 1798, and in James Madison's 1834 Notes on Nullification.

"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 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..." Thomas Jefferson1798 Kentucky Resolution

"The course & scope of the reasoning [1798 Virginia Resolution] requires that by the rightful authority to interpose in the cases & for the purposes referred to, was meant, not the authority of the States singly & separately, but their authority as the parties to the Constitution., the authority which, in fact, made the Constitution; the authority which being paramount to the Constitution was paramount to the authorities constituted by it, to the Judiciary as well as the other authorities [Congress and President]. The [Virginia] resolution derives the asserted right of interposition for arresting the progress of usurpations by the Federal Government from the fact that its powers were limited to the grant made by the States [Constitution]... The mode of their interposition, in extraordinary cases, is left by the Resolution to the parties [States] themselves... in the event of usurpations of power not remediable under the forms and by the means provided by the Constitution [Article V Amendment]... It is sometimes asked in what mode the States could interpose in their collective character as parties to the Constitution against usurped power. It was not necessary for the object & reasoning of the resolutions & report that the mode should be pointed out. It was sufficient to shew that the authority to interpose existed, and was a resort beyond that of the Supreme Court of the U. S. or any authority derived from the Constitution [Congress and President]." James Madison1834 Notes on Nullification

It is clear from Thomas Jefferson and James Madison that our Federal Government; including the President, Congress and the Supreme Court, is inferior to the State Legislatures when they act in concert. Several States acting together, within their respective borders, have the power to reverse un-Constitutional Federal Law, un-Constitutional Presidential Executive Orders and un-Constitutional Supreme Court Decisions. It is also clear from Article V of our Constitution that the States, acting in ¾ majority, have the power to amend our Constitution without permission of Federal Government — just as the States acted in concert to create our Federal Government. The 1787 Constitutional Convention in Philadelphia represented the 13 States who, acting in concert, created our Constitution and thereby our Federal Government. Federal Government is the creature and is therefore inferior to its creator — the States. Just as Federal Government — including the Supreme Court — is inferior to "We the People" and "The Several States," it should now be clear that Henry Waxman's opinion regarding the ultimate law-deciding power of our Supreme Court is inferior to that of Thomas Jefferson and James Madison, and also inferior to that of Abraham Lincoln:

"The people — the people — are the rightful masters of both congresses, and courts — not to overthrow the Constitution, but to overthrow the men who pervert it." Abraham Lincoln

An amendment to our Constitution would help settle this and other issues — the amendment should include the following provision:

"Supreme Court decisions shall be revoked by Congress with 2/3 or greater vote in both houses."

Our Constitution has been amended 27 times, including the first 10 amendments known as the Bill of Rights. The time has come for another amendment because there is now a greater risk to our equal unalienable rights (life, liberty and the fruit of our labor in pursuit of happiness) without an amendment — just as the risk of cancer surgery is most often less than the risk of passively watching a malignancy grow and spread. Without such an amendment, as Thomas Jefferson warned, we will eventually be placed "under the despotism of an oligarchy" where "We the Judges" become wrongful masters of "We the People." When we the American People are empowered through our Federal Legislature to overthrow un-Constitutional Supreme Court decisions by 2/3 super-majority (just as our Federal Legislature can overthrow a Presidential veto by 2/3 supermajority); and when "We the People" are empowered by our State Legislatures (acting in concert) to nullify un-Constitutional Supreme Court decisions, un-Constitutional Federal Legislation, and un-Constitutional Presidential Executive orders; we will finally become "masters of both Congress, and Courts" — masters of our own destiny.

© Ronald R. Cherry


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Ronald R. Cherry

Ronald R. Cherry, MD, is a board-certified specialist in lung disease who is in the full-time practice of medicine in Sweetwater, Tennessee... (more)


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