Recent Supreme Court decisions have once again caused the reemergence of a longstanding conflict in search of a direct answer: What form of recourse is there or process in place to counter the actions believed to be Unconstitutional? In practical terms there isn’t a single one and the truth is, I believe it the best possible design.
There have been attempts to expand the options and one of the earliest was proffered by Thomas Jefferson and James Madison. Based on the assertion that States could deem any Federal Law (which, theoretically could include a Decision of a Federal Court being an extension of the Federal Gov’t) unconstitutional if outside the delegated authority prescribed by the Constitution. The idea was known as Nullification.
Conceptually, this theory is based on Jefferson’s assertion that the Federal Gov’t was a “compact” of and by the States and thus they (States) had supreme authority to sanction the disagreeable acts of the National Gov’t. Senior Courts have, on several occasions, quashed this theoretical approach leaving the Supreme Court, pursuant to Article 3 & Article 6, Clause 2 (the Supremacy Clause) of the Constitution, as the final arbiter of what is deemed as be Constitutional.
In what may seem a laborious process it may be that the best approach, for addressing the consequence of human frailty, fallibility and poor judgement, is to turn the process against itself in much the same way as the defect originally occurred. The ultimate resolution is left, ultimately, to the people themselves who may right the process thru the Amendment or the Legislative process. The supreme expression of the Peoples Will.
Two final points:
(1) Once again the idea of turning the Supreme Court into an elected (termed) office has surfaced however, this approach will merely invite the same politicized-opportunism that plagues the Congress much as it does the many elected offices. It is and remains an unworkable solution.
(2) The only and, by the way, most direct method for excising a defect in the Supreme Court is through the process of impeachment.
The fact that Congress has never done so may be due to a contagious form of complicity rather than an affirmation of the courts actions. In other words; although the Public may have contempt for the Courts actions Congress instead prefers maintaining the status quo of the Courts actions as a tool for providing distance between public influences and the preferential interests and ambitions of Congress and/or the President. Yes indeed, representative government. Their representative interest vs. yours.
Curtis C. Greco, Founder