Louis the XIV is claimed to have said: “L’Etat, c’est moi” (“I am the state”).[i] The loyalty of his subjects was owed to him personally. King Henry the VIII’s unfortunate fifth wife, Catherine Howard, was beheaded—not for adultery, which she was guilty of, but for treason.[ii] These kings, and so many caesars, czars, emperors and potentates were “sovereigns”— “possessing supreme or ultimate power.” This is still reflected today in the oath that British military officers take: “I, (name), do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth, her heirs and successors, according to law. So help me God.”[iii] Reportedly Chinese officers take an oath of allegiance to the Communist Party, not to the country. Given that army’s practice of massacring Chinese citizens who express opposition to the party, it is an appropriate oath.[iv]
The United States of America is different. Our military officers “do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; . . . so help me God.”[v] In the United States the Constitution is sovereign. It is the only and ultimate source of federal authority. It is the ultimate object of national loyalty. Laws found to be in opposition to the Constitution are struck down as null and void. The Constitution overrules Congress. Even blatantly guilty criminals are freed if the methods involved in their arrest or trial are deemed to be unconstitutional. The Constitution overrules the Executive. Such awesome power, equal to that claimed by the supreme rulers of past empires and kingdoms, is dangerous.
The Constitution, however, is not a person with weaknesses and irrational whims. It is a piece of paper containing a list of powers granted and denied to the government. The piece of paper, however, cannot speak or interpret what is written on it. That must be left to others. The United States Supreme Court arrogated that power to itself in Marbury v. Madison.[vi] The Supreme Court, acting as spokesman and interpreter of the Constitution, thus endowed itself with many of the elements of sovereignty.
It is much like having an all-powerful, but reclusive, sovereign living in his royal palace. Trusting only a tiny group of nine men and women to be admitted into his presence and to relay his instructions to waiting ministers and generals, that tiny group would soon be substituted, in all practical ways, for the sovereign. What they reported the sovereign said would be the will of the sovereign and would govern all affairs of the kingdom, overruling any opposition. The devotion and loyalty the people had for the king would, perhaps unwittingly, be transferred to the pronouncements of the tiny group. We have seen the same effect in our history. When the immensely popular President Franklin D. Roosevelt sought to undercut the authority of the Supreme Court by appointing additional justices, he was forced by public opinion to back down. His attack on the make-up of the Court was viewed as an attack on the Constitution.[vii]
Because the Constitution is only a document, there must be someone to interpret it. Having the Supreme Court do so has been accepted and approved by generations of Americans. One reason may be that, given the immense power involved in that task, it is best to leave it to a small, politically isolated, group of nine. They are not elected. They are appointed by the President with the consent of the Senate. Their salaries cannot be diminished. They can only be removed by impeachment which requires a majority vote in the House of Representatives to impeach (indict) and a two-thirds majority vote in the Senate to actually remove. In the entire history of the country, only one justice has been impeached and he was not removed because many Republican senators crossed party lines to vote with their Federalist colleagues against his removal.[viii]
What is the role of Supreme Court Justices? They are, in effect, spokesman for the sovereign. There is no review of, no appeal from, their decisions. Their only restraint is self-restraint. Their primary role is to determine whether or not federal legislative, executive or judicial actions fall within the strict boundaries granted under the Constitution. They have no more right to create new constitutional rights—that is the role of the amendment process—than spokesmen for the sovereign would have to make up imaginary orders from the king. By what criteria should we judge the Supreme Court? By how well it keeps government within the bounds set by the sovereign Constitution.