Monday, September 12, 2005

Has the NPR Supreme Court Reporter Even Read the US Constitution?

In a story on NPR Morning Edition, Sept 12, the reporter was listing her analysis of Chief Justice nominee Roberts’ positions gleaned from Reagan era documents. In a telling comment, the reporter mentioned Roberts' views on allowing Congress more "...rights to limit access to courts..." for environmental groups.

This is an incorrect statement. Congress has no rights, only powers. This is not nuance. The difference between rights and powers is a fundamental constitutional distinction. It's a shame that the reporter missed this.

Just as a reminder, rights are reserved to the people only. Any power to limit the exercise of those rights is granted by the people to government through the constitution. When there is a question whether Congress or the Executive have the authority to enact legislation or exercise a power, the question is judged by the Supreme Court. Supreme court cases between people and government decide the issues of rights versus power, not rights versus rights. A fairer statement would have been “...Judge Roberts views on Congress' power to limit access to the courts…”

I know that Hamilton himself refers to the “…rights of courts to pronounce legislative acts void,…” in the Federal Papers number 78, but a complete reading of the passage reinforces the distinction that the NPR reporter should have made.
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.


This passage clearly tells us what some reporters seem mystified by. I see or hear the mistake often, especially when liberal groups report on the “rights” of government

For example “…They split, however, in a recent decision upholding the federal government's right to ban sick people from smoking marijuana…” www.suntimes.com

or
“Human-Rights Groups Question Government's Right to Detain” www.commondreams.org

or
“…critics warned that it was an unprecedented expansion of the government's
right to spy on ordinary Americans…” www.onlisareinsradar.com

In any of the above passages, the correct word should have been “power,” not “right”. This description of a government with rights, rather than simply powers is disturbing. The rights of the people are immutable. The powers of government must be limited to those the people give it. Once you forget this, and it seems many have already, no rights are safe.

Government has no rights, only power.

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