Summary of Some of Principal Types of Unconstitutional Actions by the Supreme Court
The Supreme Court bears major responsibility for most of the departures from the original Constitution. While other parts of the government and the people should not have participated in or tolerated what has happened, including what the Supreme Court has done, the Supreme Court is that part of the government most responsible for preventing others from violating the Constitution.
Instead of fulfilling that responsibility, the Supreme Court has both permitted and compelled unconstitutional actions that have radically changed our system of government. Specifically the Supreme Court has done the following:
1. In violation of the amendment provisions of Article V of the Constitution, the Supreme Court has repeatedly amended the Constitution on its own without any vote of the people or the states or any other part of the government.
2. With no constitutional authority whatsoever the Supreme Court has struck down constitutional actions by Congress when those actions were entirely within the scope of Congress' constitutional authority.
3. The Supreme Court has approved and upheld as "Constitutional" actions by Congress which were dearly in violation of the Constitution.
4. The Supreme Court has usurped the legislative authority and itself enacted laws that Congress chose not to enact. The Supreme Court has gone further and enacted and enforced laws that were unconstitutional and that therefore could not have been legally enacted by Congress.
5. The Supreme Court has usurped and arrogantly exercised nonexistent authority over the States compelling them to do or forbidding them from doing things that were entirely within the scope of authority of the states to themselves decide to do or not to do.
6. The Supreme Court uses a double standard. Sometimes it interprets with unjustifiable looseness and sometimes with unreasonable strictness, depending on which will serve its purpose at the time.
7. While in some areas of usurped authority the Supreme Court itself exercises legislative, executive and judicial powers, most of its unconstitutional decisions have the [p. 86] effect of concentrating legislative, executive and judicial powers in the executive branch of the federal government. In fact today most law is made in the executive branch where it is also enforced and where compliance with it is judged. These concentrations of legislative, executive and judicial powers imposed or tolerated by the Supreme Court should be considered in the light of these words of James Madison:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self- appointed, or elective, may justly be pronounced the very definition of tyranny. (The Federalist, No. 47)
8. In all these actions the Supreme Court has labeled what it did as constitutional or required by the Constitution thereby inducing many to mistakenly think it was acting in accordance with the Constitution of the Founding Fathers rather than in violation of that Constitution and in accordance with an unwritten Constitution of its own will.
For a more extensive discussion of improper actions by the Supreme Court, including a detailed illustrative review of Supreme Court actions undermining a vital area of constitutional law, see Chapter 8, entitled "How Flexible is the Constitution," in The Elders of Israel and the Constitution, by Jerome Horowitz. [p. 87]