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Why The Supreme Court Cannot Be The Ultimate Judge Of The Federal-State Division

As many of you may be aware, long before President Obama’s health-care power grab made headlines, the fight for states’ rights was being waged over a far less sweeping issue:  guns.  On January 13, 2009, the Montana legislature passed the Montana Firearms Freedom Act (“MFFA”).  Signed into law by Montana Governor Brian Schweitzer on April 15, 2009, the MFFA expressly exempts from Federal regulation any firearm, firearm accessory, or ammunition manufactured entirely within Montana and remaining within Montana.  The rationale?  Because the 10th Amendment reserves to the states all power not delegated to the Federal government, and because Article I, Section 8 of the Constitution permits Congress to regulate only commerce among the several States, the Federal government simply has no power to regulate such firearms or their accoutrements.  Following Montana’s lead, Idaho, Wyoming, South Dakota, Utah, Arizona and Tennessee have all passed similar statutes.  19 states have introduced such statutes in their legislatures.  New Hampshire, the bastion of “Live Free or Die,” even has a section in its version stating that Federal agents who attempt to enforce Federal firearms regulations in New Hampshire pertaining to New Hampshire-manufactured firearms are guilty of a criminal felony and liable to imprisonment and fines.  This is an excellent development.  These states – which have made clear that the key issue here is states’ rights rather than gun control – have fired one heck of a warning shot across the Federal bow.

But then the MFFA’s supporters in Montana made a key error.  Eager to validate the MFFA, on October 1, 2009, the Montana Shooting Sports Association filed a lawsuit in the United States District Court for the District of Montana asking the Court to uphold the MFFA.  Clearly, the intention is to get the case before the Supreme Court and allow it to deliver the decisive blow for states’ rights.  In doing this, Montana supporters of the MFFA have fallen right into a trap and have ensured that even if they win the battle, they may have lost the bigger war.

At first glance, it seems like the Montana Shooting Sports Association is doing things the right way.  After all, haven’t we all been taught that when an important issue of constitutional interpretation arises, the Federal judiciary should handle it?  The problem arises when you consider the key admission that the Montana Shooting Sports Association has made by filing this lawsuit – that the Federal judiciary, and the Supreme Court in particular, have the right and the ultimate authority over the division of constitutional power between the Federal and state governments.  This is wrong, and ideas like this must be discarded if state power is to have any meaning at all.

What is the Supreme Court?  Most people will tell you that its an independent (partially true), non-political (certainly not true) group of men and women in black robes who sit perched on their ivory tower, above the political fray, to interpret the Constitution and dispense justice.  But many people do not think of the obvious – it is an agency of the Federal government and the capstone of the Federal judicial branch.  It’s as much a part of the Federal government as Congress or the President.  If this is true, and it absolutely is, then in recognizing the Supreme Court’s sole authority to Constitutionally interpret the balance of powers between the states and the Federal government, we are giving the Federal government the sole power to be the judge in its own case.  If ever there was a larger conflict of interest, I certainly have not seen it.

We in Pennsylvania love our football, so lets open our imaginations a little bit.  The Steelers and the Eagles meet in Super Bowl 44.  Before the game, the NFL decides that the officials for the game will all be members of the Steelers’ front office.  Of course, the Steelers’ front office men assure us, “we can be fair and impartial.”  How does that sit with you Eagles’ fans?  Anyone want to bet that the Eagles come away with a win?  The silence is deafening.

Here’s another one:  The United States and Russia enter into an arms control treaty.  By treaty, they decide that the body with sole authority to interpret the meaning of the agreement and whether both sides are in compliance is a select committee of the Russian Duma.  I’m sure we can all see whose national security will be enhanced, and whose will be weakened, by this set up.

Everyone can see the inherent unfairness in both of these scenarios.  In a conflict between A and B, we, as a society, do not permit A to be the sole judge of who wins.  Nor do we allow B to do so.  The reason is simple.  If A can decide the merits of his own conflict with B, B loses, every time.  Conversely, if B can decide the merits of her own conflict with A, B wins.  Its simple human nature.  No person can be trusted to be the judge in their own case.

Why, then, do we allow the Supreme Court, an agent of the Federal government, to take for itself the sole authority to decide the merits of constitutional conflicts between the Federal government and the states?  Are Supreme Court justices so above the fray that they can be trusted to do what’s right, no matter what that means?  Are they so different than the Steelers’ front office or the select committee of the Duma?  No.  A hundred, thousand times no.  Need proof?  Exhibit A – Bush v. Gore, a decision where the Court gave the presidency to a candidate and expressly stated that its opinion had no application beyond that case.  In other words, the Court admitted that the decision was a blatant power grab and motivated entirely  by politics.  How in the world can anyone believe that the Court is apolitical enough to fairly adjudicate disputes between the Federal government – of which it is a major part – and the states?

Robert Yates, a New Yorker who wrote several of the Anti-Federalist papers under the pseudonym “Brutus,” hit the nail right on the head with this issue:

Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people.  Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted.  One adjudication will form a precedent to the next, and this to a following one.  These cases will immediately affect individuals only, so that a series of determinations will probably take place before even the people will be informed of them.  In the meantime all the art and address of those who wish for the change will be employed to make converts to their opinion.  The people will be told that their state officers, and state legislatures, are a burden and expense without affording any solid advantage; that all the laws passed by them might be equally well made by the general legislature.  If to those who will be interested in the change, be added those who will be under their influence, and such who will submit to almost any change of government which they can be persuaded to believe will ease them of taxes, it is easy to see the party who will favor the abolition of the state governments would be far from being inconsiderable.  In this situation, the general legislature might pass one law after another, extending the general and abridging the state jurisdictions, and to sanction their proceedings would have a course of decisions of the judicial to whom the constitution has committed the power of explaining the constitution.

Anti-Federalist 82.  This was a key objection to the Constitution from the start – the Federal government could encroach on the states, using a Federal judiciary to sanction and guard their every move.  When Montana filed its lawsuit asking the Federal courts to rule on the MFFA, it fell right into the trap about which Brutus warned.  Montana should have avoided the Federal courts and recognized that it, like all states, has the authority to independently interpret the Constitution regardless of what the Supreme Court says.  (This authority will be discussed in future articles).  In other words, Montana should have “stuck to its guns,” passed the MFFA, and simply enforced it as its legitimate view of the Constitutional balance.

Andy Quesnelle spent most of his early childhood in Cincinnati, Ohio and moved to Pittsburgh, Pennsylvania in 1992. He has lived in Pittsburgh ever since, except for the 7-year period during which he was in college and law school. He graduated from the University of Michigan in 2003 with a B.A. in History and Political Science. His primary areas of concentration were Colonial American History, 20th Century U.S. History, and American politics and government. He received his J.D. from Villanova University School of Law in 2006.

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7 Responses to “SUPREME INJUSTICE”

  1. [...] Court is the ultimate arbiter?  Our own author, Andy Quesnelle, has also addressed this question here.  This topic has also received extensive coverage [...]

  2. [...] Court is the ultimate arbiter?  Our own author, Andy Quesnelle, has also addressed this question here.  This topic has also received extensive coverage [...]

  3. [...] today is that the supreme court has the last word in deciding whether a law is constitutional. In Supreme Injustice, Andy Quesnelle addressed this misconception. He wrote about the conflict of interest that occurs [...]

  4. [...] today is that the supreme court has the last word in deciding whether a law is constitutional.  In Supreme Injustice, Andy Quesnelle addressed this misconception. He wrote about the conflict of interest that occurs [...]

  5. [...] today is that the supreme court has the last word in deciding whether a law is constitutional.  In Supreme Injustice, Andy Quesnelle addressed this misconception. He wrote about the conflict of interest that occurs [...]

  6. MarkSpizer says:

    great post as usual!

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