The Founders never intended for the Court to be the final arbiter of what the Constitution means

James Madison thus wrote that giving the judiciary the last word on constitutional questions “was never intended, and can never be proper.”

“In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will soon feel themselves independent of heaven itself.”

Interesting article. Runs counter to the common myth.

Too bad


The federal courts exercise that power purely because Congress permits them to do so.

I could neuter the Federal Courts entirely with one well written piece of legislation.

At the District Court level, simply strike their Federal Question jurisdiction entirely, by repealing the section I have stricken.

Sec. 1330. Actions against foreign states


Sec. 1331. Federal question


Sec. 1332. Diversity of citizenship; amount in controversy; costs

Sec. 1333. Admiralty, maritime and prize cases


Sec. 1334. Bankruptcy cases and proceedings


Sec. 1335. Interpleader


(I have omitted a number of specific grants for brevity, most refer to very specific matters.)

At the Supreme Court level, strike their appellate jurisdiction from State Supreme Courts.

Sec. 1251. Original jurisdiction


Sec. 1252. Repealed. Pub. L. 100-352, §1, June 27, 1988, 102 Stat. 662


Sec. 1253. Direct appeals from decisions of three-judge courts


Sec. 1254. Courts of appeals; certiorari; certified questions


Secs. 1255, 1256. Repealed. Pub. L. 97-164, title I, §123, Apr. 2, 1982, 96 Stat. 36


Sec. 1257. State courts; certiorari


Sec. 1258. Supreme Court of Puerto Rico; certiorari


Sec. 1259. Court of Appeals for the Armed Forces; certiorari


Sec. 1260. Supreme Court of the Virgin Islands; certiorari


With two very easy repeals, you have just completely neutered the Federal Courts.

The Federal Courts only wield the power they do because Congress permits them to do so. Congress could end that in a heartbeat if they wished to do so.

Wouldn’t that mean that congress decides what the constitution means at that point?

At the federal level, the Congress and President would split that responsibility, though Congress certainly would be the lead partner in that respect.

Each State Supreme Court would be the final arbiter of what was Constitutional in their State.

Alabama might allow complete outlawing of abortion, while California might allow abortion on demand and without apology.

Great post.

They swear am oath. They should not be putting forth bills they know violate it in the hope it will “slide through.” Presidents either.

The whole system is broken.

Then what is its function?

What is the alternative system?

I agree. That’s why I’m worried we would be trading one set of problems for another set of even worse problems.

I’d say the Fourteenth Amendment changes that.

The State courts would have final interpretation of the 14th Amendment in most cases, other than civil rights and voting rights cases under the proposed changes.

I think the Due Process Clause negates that though.

Doesn’t matter what the founders thought in 1787

That’s not reality.

Reality is that SCOTUS is the final arbiter in 2019.


The Founders never intended a lot of things. They never intended for us to have a standing army either, let alone a standing army with multiple branches.

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Supremacy Clause. States Rights don’t Trump the Constitution especially when it comes to the criminal Justice system. Just because Texas believes they have the right to do Terry Stops doesn’t make it ok for Texas to violate the Fourth Amendment. That being said, we have law enforcement outright doing a lot of ■■■■ that isn’t Constitutional. Civil Forfeiture for example.

Lol. Basically states will be given free reign to violate all of the bill of rights.

That would never work in a million years.

A non starter.


You do realize I am just laying out a scenario that I have said in the past will not happen.

No they are not going to do it.

I was laying out a what if scenario.

In any event, all States have a Bill of Rights in their State Constitutions which would still be binding on State courts. Different States courts might come to different interpretations of those rights. Perhaps better, perhaps worse than the current federal interpretations.

First of all, let’s discard the inaccurate and worthless term, State’s Rights. The proper distinction is between enumerated and reserved powers. Neither the State’s nor the Federal Government has rights. Only natural person’s have rights.

And I am not endorsing anything you mentioned.

As in the previous post, just laying out a what if scenario, nothing more.

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Again, under the “scenario” I laid out, the State Supreme Courts would become the final interpreter of the due process clause, as the cases would not be able to be brought to the United States Supreme Court.

And again, so nobody misinterprets, I am merely laying out a scenario. :smile:

Not saying we should actually do that.

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