Wednesday, April 4, 2012
Constitutional crisis, redux
I have been reminded by Kerodin at III percent.com that the idea that the Supreme Court can decide the Constitutionality of a law is wrong, a myth that originated with the SCOTUS decision in Marbury vs Madison.
To clarify this - if I am indeed understanding this correctly - it is rather a matter that the Supreme Court is the last court of appeal in deciding if an individual (or entity, as in the case of a corporation) has indeed violated a law. If they determine, in the opinion of the court, that a law is an illegal one which violates our Constitution, or violates our natural rights as delineated in the Bill of Rights - or that the individual never actually violated that law to begin with - then that person is allowed to be released from whatever penalty - including incarceration - that an Executive office (local, state, or Federal) placed upon them via a lower court.
This is not the same as ruling upon the Constitutionality of said law, beyond determining that the individual ran afoul of a law that did not meet the criteria for a valid law under the terms of our Constitution. A precedent may be set, such that it would prevent another individual from being arrested and tried, or at least found guilty, for the same violation, but it does not strike down the law per se. That is beyond their power. Congress itself may vote to rescind a law that they passed in a proper and legal fashion which the Executive office then signed into law, but SCOTUS may not legitimately deem a law to be unConstitutional, per se, with the expectation that it be struck down, instanter.
This is fortunate, as otherwise one Justice, one man or woman (as in the case of the numerous 5-4 decisions the Court has arrived at) would then have the power to determine what laws Congress might write that citizens would then be responsible for complying with or ignoring. Or so I understand it at this moment. Indeed, at this point in time it appears that most of us in this country have been misled to think this is indeed a power owned by SCOTUS, which would mean that nine people in black robes - or even one such person, in a 5-4 decision - may decide our fate, the amount of control our government may exert upon us in spite of our natural rights.
I still have not come completely to grips with the notion of the separation of powers within the Federal government. The only protection I am certain of - although pretty much every court in the land denies it in its instructions to the jury (as a threat to their power to rule us) - is the power of jury nullification. The states may offer some protection via the 10th Amendment, and the right of the states - and the people - to possess the powers not _specifically_ given to the Federal government, but the only protection then from the power of the states to make law, as well as the power of Congress to make law - is jury nullification.
As I have written about before, jury nullification is the right - and DUTY - of every juror to judge just not the facts of the case in question, but the LAW in question. If the defendant did in fact violate a law, but the law is an unjust law, or if the punishment for that violation is deemed to be excessive or unjust, then that juror may legally - and has a moral duty to do so - find him not guilty. (You may read about the John Peter Zenger trial back before we actually became a nation at FIJA.org.)
So, strictly speaking, SCOTUS does not possess the power to deem Obamacare unConstitutional, even though we might wish it so. I do believe, until I am corrected on this, that they may find that the individual or entity that has brought this case forward may be relieved of suffering any penalty from not following the mandates placed within this law, though. If their decision is that the any part of, or entire law, is unConstitutional, it does not remove the law from the books, does not strike it down as such, but would establish precedent such that no one should suffer any penalty for non-compliance.
Should they fail to find it violates our rights through the Constitution and the Bill of Rights, then it would be up to us to either nullify it in court when someone is arrested and tried for non-compliance. Failing that, or even in addition, it would be up to us to force our representatives to rescind the law. If they fail to do so, we would be left with the sole remedy of rejecting the government we have and forming a new one.