A Flaw in the Constitution

Article 1 allows Congress to create laws.  These laws often set policy.  This policy may change over time and Congress has the ability to adapt and change the law and the policies that are created.  That’s fine.  But when the Congress cannot decide on policy for various reasons, the issue often ends up in the Supreme Court.  The Dred Scott case is an example.  Roe, Citizens, and Heller are also examples.  Rulings by SCOTUS effectively set policy.  The flaw is that Congress can no longer adjust that policy after SCOTUS has made the ruling.  Just by deciding the case, the policy decision has moved from the jurisdiction of Article 1 to the jurisdiction of Article 3.   The people are now stuck with the policy in perpetuity. 

Although, on paper, it is possible to seat a new court that will rule differently, or to pass an Amendment to the Constitution that would overrule the court, those options are not real in a world of partisan politics.  In effect the policy set by SCOTUS is cemented in place.  Even if the ruling has unintended consequences, we are stuck with the law and perpetual controversy for an indefinite future period.  The voters have a good reason to feel powerless because they cannot vote on the issue or elect representatives that can vote on the issue.  

This gives SCOTUS an enormous ability to set policy on controversial issues.  And those controversial issues increase political division.  The more than the court ‘legislates from the bench’ the higher the level of partisan division.  Indeed the Dred Scot case did not start the Civil War, but it did help to push the country over the edge.  If Congress had decided the issues surrounding Roe, Citizens, and Heller there would be less controversy.

Dodging controversial issues is easy for Congress but tough on America.  SCOTUS took many years to decide the Dred Scott case.  Perhaps the judges were very scared of the negative consequences of legislating a controversial issue from the bench and scared of the precedent it would set.    Is Congress setting us on the path of great upheaval by refusing to do their job? 

Dale Leitzke

spade@new.rr.com