Judicial Activism and States’ Rights

John Conricode — 12-11-2024

The Supreme Court does not have the ultimate power and responsibility to interpret the U.S. Constitution. Instead, the states have the ultimate power and responsibility to interpret the U.S. Constitution as null when the Supreme Court applies the Constitution to empower the federal government beyond its constitutionally limited, enumerated, and implied powers. The core enumerated powers are listed in Article I, Section 8, and the Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[1]

The power of the judicial branch to interpret the Constitution is rooted in the separation of powers with its checks and balances. However, that judicial power itself today is insufficiently checked. Well-educated in history, Thomas Jefferson understood the human heart’s passionate zeal for luxury, power, and glory. Thus, in 1819, he wrote to Spencer Roane with regard to governmental powers in general and the Supreme Court in particular:

“It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also…”[2]

The domain in which the Supreme Court today acts as an independent and absolute power, essentially unencumbered by any check or balance, is precisely where the federal government is not Constitutionally empowered to act, that is, in the domain of states’ rights.

In response to the federal Alien and Sedition Acts of 1798, in Kentucky and Virginia state legislature Resolutions of the same year, Jefferson and Madison both defended state nullification of the federal wielding of unconstitutional power.[3]

Decades later, in response to the federal Fugitive Slave Act of 1850, which most cruelly required the return of escaped slaves, the Wisconsin state legislature in 1854 voted to declare this Act unconstitutional and nullified.[4]

Northern abolitionists not only denounced the Fugitive Slave Act and defended states’ rights, but they also were eager for Northern secession from the nation.[5] As demonstrated by American history itself, the Supreme Court does not have, and the President and the Congress do not have, the final word in the interpretation of the Constitution, but rather, the sovereign states do.

Marriage is a states’ rights issue, and Obergefell v. Hodges is a recent example of manifestly evil Supreme Court judicial activism and trampling of states’ rights. Judicial activism bespeaks the judiciary actively checking the activities of Congress, state legislatures, and administrative agencies in order to propel forward its own, national, vision of earthly utopia. The courts, and if necessary, the Supreme Court, fabricate what they would like a constitutional provision or statutory phrase to mean, and in doing so, they become lawgivers.

The Supreme Court, in Obergefell v. Hodges, in 2015, ruled that under the Equal Protection Clause of the Fourteenth Amendment, homosexual couples have the federal right to “marry.” The Supreme Court overruled its own precedent, which it, the highest court in the land, had set in Bowers v. Hardwicke in 1986, and which case established that sodomy is “immoral and perverse conduct,” that it is not protected by the U.S. Constitution, and that states cannot be deprived of the right to punish it.[6]

Obergefell v. Hodges is an example of routine violations of the Tenth Amendment and states’ rights. A significant early example of the Supreme Court’s judicial activism and extra-constitutional violation of states’ rights is McCulloch v. Maryland of 1819. The situation of McCulloch v. Maryland was such that the Baltimore branch of the Congressionally chartered National Second Bank of the United States was taxed by the government of Maryland. This Second Bank of the United States was a federal commercial bank that made loans for interest and for-profit to merchant borrowers. It was not a central bank in the modern sense, and it did not set monetary policy.[7] [8]

The Baltimore branch of the Second Bank (McCulloch) refused to pay taxes to the government of Maryland, and the national government ultimately took the case to the United States Supreme Court. The outcome of McCulloch vs Maryland was a growth in the national government. It established the principle of “implied powers” and affirmed the doctrine of national supremacy.[9]

Specifically, the Supreme Court, under Chief Justice John Marshall, ruled:

1. The national government has “implied powers” to aid its more explicitly designated powers, such as the enumerated powers of coining money, establishing post offices, and declaring war. “Implied powers” are pursuant to the “Necessary and Proper Clause” of Article I, Section 8, Clause 18, of the U.S. Constitution, and empower here the establishment of a national bank.

Article I, Section 8, Clause 18, of the Constitution, reads:

“[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof.”[10]

2. No state could tax the national government because to do so is to oppose or to conflict with the national government, which is unconstitutional because of the doctrine of national supremacy; that is, the Constitution is the supreme law of the land. The supremacy clause,

Article VI reads:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”[11]

However, with regard to McCulloch v. Maryland, the national government has no explicit or implied power to establish a national bank. The word “bank” is nowhere mentioned in the Constitution. There is no implied power because a national bank is not “necessary” to the “execution” of federal government enumerated powers. It may or may not be desirable, but it is certainly not necessary. This was the thrust of the argument presented by Secretary of State Thomas Jefferson to President George Washington during his first term, when in 1791, Congress established the First Bank of the United States. Jefferson argued: “To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”[12] [13]

That is, “As the twig is bent, so is the tree inclined.” And indeed, that tree is grotesquely misshapen now, such that we are on the precipice of fascism, where fascism is something like total State control over all aspects of life, such that everything serves the State. We saw it with COVID-19, and we are seeing it unfold further with climate change. The question of national supremacy here then becomes moot. Banks operating in Maryland are rightly subject to Maryland’s laws, and the states should have the power to tax the federal government when it is acting extra-constitutionally, as in McCulloch v. Maryland.

Ostensibly, those “implied powers” permit the national government to meet challenges unanticipated by the Framers of the Constitution, but there is always more than one way to meet a challenge. There is no warrant to invent federal powers. Furthermore, in its pretensions, by its very nature, the supremacy clause is deeply sinister. That any words from the mouth of man, or the pen in his hand, can possibly be “the supreme Law of the Land” is blasphemous and preposterous. These words of the Framers found in the Constitution would abrogate the Declaration of Independence itself, which is foundational to the Constitution and is, therefore, impossible.

The Declaration of Independence acknowledges “the Laws of Nature and of Nature’s God,” that is, natural law, which inheres reality, and whose domain is far above the Constitution. Natural law informs us that what is good for a thing is in accordance with its nature and results in its flourishing. Clearly then, no Supreme Court, in interpreting the Constitution, can legitimately impose national recognition or approval of same-sex “marriage” as the “supreme law of the land,” as with Obergefell v. Hodges, in contradiction to the actual “supreme law of the land”—the Natural Law. The nature of human sexuality is procreation, and marriage and family are the fundamental cells of society.

[1] https://constitutioncenter.org/the-constitution/amendments/amendment-x

[2] https://press-pubs.uchicago.edu/founders/documents/a1_8_18s16.html

[3] https://billofrightsinstitute.org/primary-sources/virginia-and-kentucky-resolutions

[4] https://tenthamendmentcenter.com/2010/02/10/the-untold-history-of-nullification/

[5] https://www.shotglassofhistory.com/abolitionists-argued-states-rights-secession

[6] https://remnantnewspaper.com/web/index.php/articles/item/1884-acla-press-release-onobergefell-v-hodges-catholic-lawyers-question-legality-of-supreme-court-decision

[7] https://economic-historian.com/2020/12/second-bank-of-the-united-states/

[8] https://en.wikipedia.org/wiki/Second_Bank_of_the_United_States

[9] Schmidt, Steffen W., et al. American Government and Politics Today. Cengage, 2022.

[10] https://constitutioncenter.org/the-constitution/articles/article-i#article-section-8

[11] https://constitutioncenter.org/the-constitution/articles/article-vi

[12] https://avalon.law.yale.edu/18th_century/bank-tj.asp

[13] https://www.annenbergclassroom.org/resource/the-pursuit-of-justice/pursuit-justice-chapter-2-national-bank-federalism/