We have come to accept the Supreme Courtโs โOpinionsโ as if they are law on the books to be followed.ย But, it is important for us to remember, the Supreme Court decisions are NOT law, they are NOT supreme over the States, and all Supreme Court Opinions are completely limited by the Constitution.
Point 1
โThe powers not delegated to the federal governmentโฆare reserved to the States respectively, or to the people.โ ~ Tenth Amendment
The Tenth Amendment of the Constitution makes it clear; if a power is not specifically delegated to the federal government as a power then it is reserved to the States. Powers that have not been specifically delegated to the federal government are not powers the federal government can lawfully exercise.
Point 2
โโฆthe Laws of the United States which shall be made in Pursuance thereof; โฆshall be the supreme Law of the Land.โ ~ Article 6 sec 2, U.S. Constitution
Only laws created by the federal government that are made pursuant to constitutionally enumerated powers are the โsupreme Law of the Land.โ When a power has not been specifically delegated by the Constitution to the federal government, any law created by Congress, any executive order created by the executive branch, exercising that power has no force of binding power over the States; i.e. it is not the supreme Law of the Land.
Alexander Hamilton clarifies this point in Federalist #78:
โNo law, therefore, contrary to the Constitution can be valid.โ
This drafterโs explanation of Article 6 section 2 proves that any law made by Congress that is inconsistent with the Constitution, in this case outside delegated power, is an invalid law, not binding upon the States.
Point 3
โAll legislative Powers herein granted shall be vested in a Congress of the United States,โ ~ย U.S. Constitution
Supreme Court Opinions CANNOT be law of the land. ย The writing of law is a power exclusively held by Congress. Court Opinions cannot be law without violating the express limits of the separation of powers established by the Constitution. A violation of this separation of powers is a per se violation of the Constitution which renders the court opinion invalid (see #2).
Violations of separation of power were of the utmost concern to the drafters of the Constitution. James Madison explains, quoting Montesquieu, Spirit of Laws (1748), in Federalist #47:
“there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or “if the power of judging be not separated from the legislative and executive powers,”
Montesquieu, Spirit of Laws, warns of the consequences of allowing the judiciary to violate separation of powers to be violated:
โAgain, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.โ
Point 4
โThe judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;โ ~ Article 3 sec 2 clause 1, U.S. Constitution
The power of the Supreme Court is limited to matters โarising under this Constitution, the Laws of the United States, and Treatiesโ made โunder their Authority.โ If a power is not specifically delegated it is not a matter over which the Supreme Court has jurisdiction. Therefore Supreme Court Opinions regarding State land, Environment, Education, Firearms, etc… are not binding upon the States. To claim otherwise violates both the Tenth Amendment and Article 6 section 2 of the Constitution.
Point 5
The Supreme Court is not the arbiter of its own power or jurisdiction
For the Supreme Court to be the arbiter of its own power asserts that the federal governmentโs only limitation is its own judgement and will. Such a premise would negate the very existence of the Constitution that created the federal government. The judiciary is just as limited in its power by the Constitution as the other two branches of government.
James Madison explains the limitation of the power of the Judiciary in his Virginia Assembly Report of 1800:
โIf the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution [States]โฆ dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitutionโฆconsequently,ย that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another–by the judiciary as well as by the executive, or the legislature.โ
Thomas Jefferson, 1812:
โThe great object of my fear is the federal judiciary. That body, likeย
gravity, ever acting, with noiseless foot, and unalarming advance,ย
gaining ground step by step, and holding what it gains, is ingulfingย
insidiously the special governments into the jaws of that which feeds themโฆgovernment will become as venal and oppressive as the government from which we Separated.โ
In summary, courts don’t issue rulings, Kings issue rulings. Courts issue Opinions and when those Opinions are not consistent with the Constitution those opinions are no more binding upon you than your next door neighbor’s opinions.
KrisAnne Hall is an attorney and former prosecutor, fired after teaching the Constitution to TEA Party groups โ she would not sacrifice liberty for a paycheck. She is a disabled veteran of the US Army, a Russian linguist, a mother, a pastorโs wife and a patriot. She now travels the country and teaches the Constitution and the history that gave us our founding documents. KrisAnne Hall does not just teach the Constitution, she lays the foundations that show how reliable and relevant our founding documents are today. She presents the โgenealogyโ of the Constitutionโ the 700 year history and five foundational documents that are the very Roots of American Liberty.
