The Constitution: The Supreme Court
The Supreme Court seems to have the final say over every controversial issue from abortion to gun control to same-sex marriage. But is that what the Framers of the Constitution intended? Sherif Girgis, Associate Professor of Law at the University of Notre Dame, has the answer.
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Script:
Of the three branches of government—the legislative (the House of Representatives and the Senate), the Executive (the President), and the Judicial (the Supreme Court and the lower federal courts)—which is the most powerful?
Today, most people would probably say… the Judicial. It’s the Supreme Court that has the final say over every controversial issue. Prayer in school? Abortion? Same-sex marriage? “Let the Court decide” is the modern refrain.
But that’s a long way from how the Framers saw the role of the courts.
Let’s take a look at what the Constitution says.
Article III, Section 1 vests the nation’s “judicial power” in a Supreme Court and any lower courts that Congress may establish.
“The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall… receive for their services, a compensation, which shall not be diminished[…].”
By “good behaviour” the Framers meant lifetime tenure. As long as federal judges didn’t do anything worthy of impeachment, they had the job for life or until they chose to give it up.
The purpose of lifetime tenure and salary was to place federal judges above politics, to make them independent of the legislative and executive branches. In this way, they would act as another check on the power of those two branches.
Yet for all that, Alexander Hamilton thought the judiciary was “beyond comparison the weakest of the three” branches.
Boy, was he wrong—but not in his assessment of the judicial branch as spelled out in the Constitution.
As Hamilton explained, the Executive bears the sword, or the power to coerce. Congress sets the rules and controls the purse—the federal budget. But what “weapon” did the judiciary have? Hamilton couldn’t see any.
He couldn’t see any because he and the other Framers never imagined that the Court would be the ultimate arbiter of what was “Constitutional” and what wasn’t. They saw the court as having a much more limited function—as we shall see.
The Constitution doesn’t even state how many justices there should be. That was set by the first Congress of 1789. They set the number of Justices at six which, to our modern sensibility, is bizarre. What would happen in the case of a tie vote?
Again, this points to the Framers’ modest conception of the Court.
As spelled out in Section 2 of Article III, federal courts have just one job: to settle disputes about the rights of the parties before them—not to use cases as platforms to resolve policy debates. For the Framers, setting policy was the job of the peoples’ elected representatives.
What about the ability to declare laws unconstitutional: didn’t that belong to the courts? Yes, but that didn’t make courts the only authority on the Constitution.
As understood by the framers, the legislative and executive branches have their own duty—and power—to interpret the Constitution when doing their jobs. For example, presidents have vetoed bills they considered unconstitutional. That’s what Andrew Jackson did when he refused to recharter the national bank in 1832. He didn’t think the Constitution gave Congress the authority to establish such an institution.
True, the President and Congress have usually followed the Court’s readings of the Constitution as a way of avoiding unnecessary conflict. But, there have been exceptions.
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It never ceases to amaze me how those on the left don't recognize just how utterly dangerous it is to have national policy dictated by a small group of unelected judges who serve for life.
So he agrees that the Founders gave in Article III the Judicial branch the power to settle disputes under the law and the Constitution but the Founders would be dismayed that they do so. Not always saying the courts are right, for example amazingly the Supreme Court mandated that states must pay for private religious schools (in Maine) and other states, so taxpayers must fund other religions then they believe.
What does the Constitution say about REPARATIONS…yeah, NOTHING! Stop your whining.
As bad as most PragerU videos are this one is actually not bad. I really wish you would do more like this without the right leaning nonsense, lying, and misleading information.
One thing is though it really doesn't matter what our forefathers thought. The world has changed too much and the strength of the judicial system is only a sign of the dysfunction of the rest of our branches. Congress can't get much done because of so much disagreement and the filibusterer, so the executive tries to pass more and more executive orders to counter act this and the judicial branch leans so hard to it's own bias, which is the problem now.
Anyone who thinks the Supreme Court isn't playing into hard right leaning bias is a fool. They have not made any decisions lately that lean anything but right. Climate change denial and restricting the EPA's ability to maintain a safe environment for future generations, forced pray in school (yes the coach was actually coercing students into prayer), Moore v Harper (just so we can have election fraud now; why have a fair election when you can steal it?), shooting down any kind of helpful gun regulation to stop mass shootings, denying medical access to women (since they are 2nd class citizens in Christian patriarchy), etc. You guys are trying your best to burn this country to the ground.
Clarence Thomas is a modern day Roger Taney.
The supreme court has too much power nowadays. The supreme court can strike any law it deemed unconstitutional, can revert any set precedent, and literally shape by its decision the law of the land.
They framers would puke if they know their stupid lifetime rule applies to Amy Coney Barrett or Brett M. Kavanaugh
I'm not sure I can take seriously the statement about the framers' careful limitations and constrained definition of the judiciary. The executive and legislative branches have fallen from their much more precisely defined roles, while in my opinion, the judiciary fell far from an ambiguous and poorly defined role.
The framers lived in a time where personal and societal honor was important. Today's whore house world views are antithetical to the founders ideas of morality, responsibility, and community.
Appealing to and assuming shared values is diffict when the values don't match up well.
God will not be mocked. There are consequences to idolatry and depravity, no matter how well funded, popular, or whitewashed.
Even if unintended, SCOTUS has become the final arbiter.
Since it’s almost Thanksgiving, you may enjoy hearing about the first American Thanksgiving: Peter Fenzel Episode 13 The Story of Thanksgiving – part of the IN THEIR OWN WORDS series on YouTube .
Republicans love the supreme court. You spent decades creating this. Now Republicans have a permanent veto on any new legislation. Even if democrats got 90% of the vote and created universal healthcare then Republicans can just have the supreme court rule it unconstitutional.
At this point the supreme court is a government within a government. It is a judicial oligarchy waiting to be released from the conservative chains currently on the court so that it can morph into an all powerful marxist tool that maintains a sense of legitimacy in the eyes of the ignorant. It is silly for conservatives to be cheering this court on when they make a correct decision. Freedom cannot be won through a court, it can only potentially be maintained but freedom is guaranteed to be lost through such a court eventually, as no element of our lives is outside the courts power. This isn't what the framers envisioned the supreme court to be but that is what it has become.
Is the court refusing to cooperate with rich people all of a sudden? Poor babies.
Brazil is experiencing the tyrany of the judiciary and brazilian people have no one they can go to 😢
Not what I was expecting PragerU to say, but I hadn’t thought much about the issue or formed an opinion on it, so interesting to consider.
12:22am NZDT
18 November 2022
It’s time to stop playing into the hands of the enemy with this bickering and slapping each other in the face with “values”. Aren’t you bored yet YouTubers? The world has been on fire for a long time and PragerU is just another “team” playing a “game” of words…too bad. PragerU I challenge you to debate me on whatever terms you want and when I win I will help you create a successful platform that will CRUSH the enemy. Cheers
We have 9 dictators serving for life called the united states supreme court.
as it stands the judiciarys job should be to limit federal power and keep it within the confines of the constitution. Because that is effectively what the process of judicial review is.
The constitution requires congress to meet for at least 2 weeks every year. Otherwise, they might not even meet for years at a time, or at all. Now there's barely a time that they're not meeting. The founding fathers wanted few laws, and government that mostly doesn't interfere with the lives of the people. We have drifted so far away from that. It will be our undoing.
SCOTUS power is only as strong as the Executive Branch decides to enforce the law and courts decisions. Today, the DOJ and the FBI as well as other 3-letter agencies are failing to enforce the law and instead are investigating US citizens exercising their Constitutional Rights.
not gonna talk about The Supreme Court in context of judicial activism or "the living Constitution" who's rulings brought about laws no politician will dare to run on. like the rise of criminality since the 1960s those started with the supreme court
Check out the new gun laws in Oregon. Scary.
God help the USA…we've fallen so far below the standards of our founding documents. We will fail as a country if we don't get this corrected…and soon.
As I recently heard someone say (mockingly), "'Supreme Court rules,' Supreme Court rules."
The court’s needn’t be so powerful, if the legislative and executive branches didn’t fail in their duties to follow the constitution and all her amendments so frequently.
The courts, at this point, are the only thing stopping Biden and his Rouge’s Gallery from turning our Republic into a Dictatorship.
Poor America.