By Matthew Trewhella (March 11th, 2018)
On November 18th, 1302, Pope Boniface VIII issued his Unam Sanctam declaring, “We declare, state, and define, that it is absolutely necessary for the salvation of all human beings that they submit to the Roman Pontiff.”
Any human institution that accrues power to itself so that it arrogantly declares itself the final arbiter to which all men must submit – corrupts itself. Just 200 years later, the Reformation proved Boniface wrong.
On September 12th, 1958, the Supreme Court of the United States [SCOTUS] issued its own Unam Sanctam. In the Cooper v. Aaron case, they declared (1.) that their opinions carry the force of law, (2.) that they are the final arbiter of all constitutional questions, and (3.) that all people and all other branches of government must submit to them.
The Court wrote in Cooper, “…the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land…” This is what is known as writing law from the bench – something the judiciary was never granted authority to do in the Constitution. Rather, the Court over the last 200 years, has written themselves powers through their Court opinions.
The sentence goes on to say in Cooper, “…and Art. VI of the Constitution makes it of binding effect on the States…” Article VI is known as “the Supremacy Clause.” The Supreme Court has used it to say that their interpretation of the Constitution is what has supremacy – hence, their arrogant assertion that Cooper is the “law of the land.” But if one takes time to actually read Article VI, they see that the Supreme Court is nowhere mentioned. Federal courts are not mentioned. Rather, one clearly sees that what has the supremacy is the Constitution itself.
In the very next sentence in Cooper, the Court states, “Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Article VI, clause 3, to support this Constitution.’” Understand, by this the Court means their interpretation of the Constitution.
And here we see the fulfillment of the Court’s three-fold fiction. First, that their opinions are the “law of the land.” Second, that they are the final arbiter of what is or is not constitutional. And third, that all other branches of government must submit to them. All of which are a lie.
Notice that the Court invokes Article VI, clause 3, for the demand that all other branches of government submit to their interpretation of the Constitution, but if one takes time to actually read Article VI, clause 3, they will notice that the oath all government officials take, including state authorities, is to uphold the Constitution itself – not the Supreme Court’s interpretation of the Constitution. No government authorities, including state authorities, take an oath of subservience to the federal judiciary, nor do they take an oath to uphold unjust or immoral court opinions issued by SCOTUS.
The amazing thing is that none of this was the issue before the Court. The issue in the Cooper case was an unjust discrimination law in Arkansas against black people – not whether their opinions were the “law of the land;” not whether they are the final arbiter; not that every other branch must submit to them. This is what Thomas Jefferson, who spent the last 23 years of his life at war with the federal judiciary, called an “obiter dissertation” wherein SCOTUS uses a case to write powers for itself never granted to it by the U. S. Constitution in a case not having anything to do with the powers they granted themselves. The Court has been doing this for over 200 years now.
The Arrogance of SCOTUS
In the very next paragraph of Cooper, the Court invokes Chief Justice Charles Hughes by stating, “A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, ‘it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land.’”
This is a strawman argument as it assumes their assertion that there must be a final arbiter. They assert they are that arbiter, so they proffer the idea of how awful it would be to have governors as the final arbiters. Our Founders never wanted any final arbiter. They wanted all branches to check the others on matters of what is right, just, or moral; on matters of what is or is not constitutional.
Let us remember that this is the very same Chief Justice Charles Hughes who arrogantly stated, “We are under a Constitution, but the Constitution is what the judges say it is.” The Supreme Court thinks only they get to decide what is right, just, moral, or constitutional.
Listen to the arrogance of SCOTUS in Cooper:
“They [America’s founders] set apart a body of men, who were to be the depositories of law, who by their disciplined training and character and by withdrawal from the usual temptations of private interest may reasonably be expected to be `as free, impartial, and independent as the lot of humanity will admit.’” The Court is of course speaking of itself – such is their hubris.
The Constitution, however, nowhere declares the Court to possess that position. SCOTUS places themselves above all via their court opinions. They think they are the experts. That they are the learned men. That only they can understand what the Constitution is saying. And that the role of all other branches is to demonstrate submission to them. In reality, the Court has long lost the status of being “impartial.” SCOTUS has long been politicized by both parties.
Their pompous declaration of themselves stands in utter contrast to the thinking of Western Civilization. It also impugns and deflowers the true federalism established by America’s founders. One of the golden attributes of true federalism is that there are layers and branches of government – all possess lawful authority, and if any one branch begins to play the tyrant, all other branches are duty bound to resist that branch – even the Supreme Court.
Some judicial supremacists try to guilt-manipulate those who rightly oppose the Court’s three-fold fiction. They take Cooper v. Aaron and say – “So you think that all what the Court did on behalf of blacks and against prejudice should be undone?” (Of course the air that you are racist is floated in how the question is asked). But this is utter nonsense.
Just because a branch of government does right in one matter, but then does wrong in another matter – doesn’t mean that we should give them a pass when they do wrong or submit to the wrong they have done. We can applaud and understand the Court taking Arkansas to task in Cooper because of the immoral stance the state had embraced, but that does not mean we should tolerate their assertion that what they have written is law, that they are the final arbiter, and that all must always submit to them. That is utter nonsense.
Just because SCOTUS did right in Cooper, doesn’t mean we ignore the wrong they did in Roe when they decreed preborn babies can be murdered in the womb, or the wrong they did in Obergefell when they decreed two men or two women can marry.
In the matter of Cooper, SCOTUS made right a wrong – but in Roe and Obergefell they made a wrong a right.
This embrace of judicial supremacy has resulted in social transformation without representation. We elect legislators to write our laws only to have them – time and time again – trampled by SCOTUS. Our founders rid us of a monarchy – and we have replaced it with an oligarchy.
The Men of 1859
In the Cooper opinion, SCOTUS appeals to the Abelman v. Booth case of 1859 which originated in Wisconsin wherein SCOTUS upheld the federal Fugitive Slave Act. They quote Chief Justice Taney from the Booth opinion to assert that all other branches of government – including state governments – must submit to the Court’s interpretation of the Constitution.
And this proves the deeper point. What is important to the Supreme Court is not whether what they rule is right or wrong, just or unjust, moral or immoral – what is important to SCOTUS is that they be obeyed – whether they uphold a great evil like the Fugitive Slave Act or denounce an evil like Arkansas’ racial discrimination policy.
What the justices fail to mention in their Cooper opinion is that Wisconsin defied their interpretation of the Constitution in the Booth case. And this is the duty of states – not to bow down to unjust or immoral opinions issued by SCOTUS, but to interpose and defy the judiciary which has decided to play the tyrant.
This was a conflict of jurisdictions between state and federal governments – as America’s founders envisioned would happen when one branch promotes evil. This is what should happen in a true federalism. The legislators of 1859 understood their duty. They confronted the federal tyrant – and reminded him that his authority has limits.
The men of 1859 not only declared in their resolution that the unjust and immoral federal Fugitive Slave Act was “without authority, void, and of no force” in the state of Wisconsin, but they openly checked federal tyranny by stating:
“Resolved, that the government formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact [the compact being the Constitution] among parties having no common judge, each party has an equal right to judge for itself.”
And the duty of our state officials in our day is no different. Their duty is not to accommodate or bow down – but to interpose when the Supreme Court acts lawlessly. A true federalism understands the importance of checks and balances. As legal historian Alpheus Thomas Mason wrote not too long ago: “Implicit in the system of government the Framers designed is the basic premise that unchecked power in any hands whatsoever is intolerable.”
The Supreme Court is not above divine law. They are not above God. They are not the voice of God. They are not God. Their opinions and interpretations are not the supreme law of the land. God’s law declares “You shall not murder.” His created order has declared that a man joins a woman in marriage. They have contradicted His law and Word and therefore should not be obeyed in these matters. They are the tyrant.
Cooper is filled with statements by the Court that grant them powers not given them by the Constitution. As is the case with all human institutions that have declared ultimate authority and demanded unlimited submission – SCOTUS must be defied – nothing less will do. The Court must be reminded that their authority has limits.
Matthew Trewhella is the pastor of Mercy Seat Christian Church (http://MercySeat.net) and author of the book The Doctrine of the Lesser Magistrates (http://DefyTyrants.com). He and his wife Clara have eleven children and reside in the Milwaukee, Wisconsin area.