Complimentary Story
On November 18, 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 to the point 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 12, 1958, the Supreme Court of the United States [SCOTUS] issued its own Unam Sanctam. In the Cooper v. Aaron case, they declared that their court opinions are the “law of the land,” that they are the final arbiter of all constitutional questions, and that all people and all other branches of government must submit to them.
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. The Court created a fiction wherein they gave themselves powers not granted them by the Constitution.
Some judicial supremacists try to guilt-manipulate those who rightly oppose the Court’s 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 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. 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.”
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. 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.
To read this article in its entirety – go online to:
DefyTyrants.com
Matthew Trewhella is the pastor of Mercy Seat Christian Church (MercySeat.net) and author of the book The Doctrine of the Lesser Magistrates
(DefyTyrants.com). He and his wife Clara have eleven children and reside in the Milwaukee, Wisconsin area.
