Abolish the Supreme Court, Not the Second Amendment

By: Tho Bishop
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The crusade for greater gun control received another PR victory today with an op-ed by retired Supreme Court Justice John Paul Stevens in the New York Times calling for the repeal of the 2nd Amendment. 

Of course Stevens’ hostility to gun rights is nothing new. As he notes in the piece, he was one of the four dissenters on the District of Columbia v. Heller and is one of the most prevenient legal voices to argue that the 2nd Amendment was meant to apply exclusively to militias and not citizens. When defending this view, he has referred to the work of popular contemporary historians such as Joseph Ellis, to try to bring “context” to the discussion. This is, in part, due to Stevens’ larger judicial philosophy that relies on “original intent” rather than “original public meaning” – which leads him to try to search through letters and correspondence of the Founding Fathers justify a position, rather than simply looking at what the text of the Constitution was understood to have said. (Naturally his disagreements with Justice Scalia on this matter did not prevent the two from agreeing on several very bad decisions.)

The obvious problem with this is that the Founding Fathers did not share a homogenous world view, and therefore you can find conflicting interpretations among the leading voices of the era. While Stevens grounds his narrow view of the Second Amendment on James Madison’s work on militias in the Virginia Constitution, the Constitution was certainly not ratified based on the limited perspective of Mr. Madison. Of course, the fact that this debate continues to this day is simply another example of the dangers of relying on the Constitutional interpretation for individual rights. 

The most unfortunate aspect about Stevens opinion is that it’s hardly a radical one in the modern legal climate. This is exactly why it’s a bad idea to allow a group of unelected, isolated scholars in black robes be the deciding authority on the proper size and scope of government.

The solution? Abolish the Supreme Court, or at least aim to dramatically reduce its influence. 

As Ryan McMaken wrote following the death of Justice Scalia:

We’re told by pundits and politicians from across the spectrum how indispensable, awe-inspiring, and absolutely essential the Supreme Court is. In truth, we should be looking for ways to undermine, cripple, and to generally force the Court into irrelevance.

With the expected eulogies for Scalia among his supporters, we’re being berated with the idea that Scalia was an “originalist” who stuck doggedly to the clear text of the Constitution as imagined by its authors. In truth, Scalia was no originalist, since, if he had been one, he would have rejected the whole notion of judicial review, which is itself a total innovation and fabrication dreamed up by Chief Justice John Marshall. Absolutely nowhere does Article III of the Constitution (the part that deals with the court, and is half a page long) give the court the power to decide on what can be legal or not in every state, town, village or business of the United States. Moreover, as Jeff Deist notes today, the Court’s powers we so blithely accept as fait accompli are mostly made up:

  • The concept of judicial review is a fabrication by the Court, with no basis in Article III. 
  • Constitutional jurisprudence is not constitutional law.
  • The Supreme Court is supreme only over lower federal courts: it is not supreme over other branches of government.
  • Congress plainly has constitutional authority to define and restrict the jurisdiction of federal courts.

But don’t look for many in Washington to admit this any time soon. The Supreme Court serves a very important function in centralizing federal power in DC and in the hands of a small number of senior federal personnel. And how convenient it is for members of the ruling classes to influence and access these guardians of the federal government’s intellectual respectability: the members of the court, presidents, and senators are all generally all members of the same socio-economic class, send their children to the same elite schools, and work and live together in the same small social circles. At the same time, this closed social and professional circle also helps to diminish the influence of those outside the Washington, DC bubble. 

If it wished to, Congress could overhaul the Court this afternoon. Nothing more than simple legislation would be necessary to radically change or completely abolish the lower federal courts.  Congress could decide what topics fall under the lower courts’ jurisdiction, and thereby limit the Supreme Court’s jurisdiction as well. Congress could also decide that the Supreme court is made up of one justice or 100 justices.

Indeed, since the Supreme Court is nothing more than a legislature, why not make it one? Why not make SCOTUS a body of 50 “judges,” with the understanding that the Senate will not ratify any appointment which does not hold to the rule that each state gets a judge on the Court? Politics and ideology prevent this, but no Constitutional provision does. 

While some Constitutionalists still cling to the romantic notion of the Supreme Court as a check on the Federal legislature, American history is very clear on this matter. The Supreme Court has mainly served as a tool for centralizing power in Washington, and it should be viewed with as much suspicion as any other branch of the Federal government. 

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