This past Sunday, November 13th, 2016, President-elect Donald Trump stated regarding homosexual marriage: “It’s law. It was settled in the Supreme Court. I mean it’s done.” This is a fiction.
The truth is the judiciary cannot make laws. Article 1, Section 1 of the U.S. Constitution declares that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” If “all” law-making power resides with Congress – how much law-making power does that leave for the judiciary? That’s right – zero, nothing.
The idea that the executive and legislative branches should be subservient to the judicial branch was unthinkable to America’s founders. It would have been anathema to them.
Through so-called “Judicial Supremacy,” the federal courts claim to be the lone and final arbiter of what is constitutional and what is not. They claim this through the so-called “Supremacy Clause” – Article 6, paragraph 2 of the Constitution. But when one actually reads Article 6, paragraph 2 they see that the Supreme Court is not even mentioned there (nor any federal court). Rather – it is the Constitution itself that has supremacy. All magistrates in America – from a policeman to the President – take an oath to uphold the U.S. Constitution. They do not take an oath of subservience to the federal judiciary.
The words of Thomas Jefferson are again appropriate here: “Our Constitution . . . intending to establish three departments, co-ordinate and independent that they might check and balance one another, it has given—according to this opinion to one of them alone the right to prescribe rules for the government of others; and to that one, too, which is unelected by and independent of the nation. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” (Letter to Judge Spencer Roane, Sept. 6, 1819)
The Supreme Court has usurped its constitutional restraints and has been playing the tyrant.
Understand, you cannot appease a tyrant – you must confront him.
Governors, Attorney Generals, and state legislatures (as well as county and local governments) simply must interpose against such judicial lawlessness and complicit executive and legislative federal branches. A true federalism understands that whenever one branch of government begins to play the tyrant – it is then more incumbent than ever for all other branches (whether federal, state, county, or local) to uphold the Constitution and resist the branch playing the tyrant – even if that branch is the Supreme Court.