Political Tactic #6—Changing the Rules
Now I am certain that all of us were taught in school that the role of the courts and the Supreme Court in particular is to interpret the Constitution. That is factually INCORRECT. A quick check of Article 3 of the Constitution—the part that creates the Federal courts—will quickly point out that there is no such power given to the courts to interpret the Constitution at all. There is a reason for this.
See, Political Tactic #6 is used to convince people that courts have the power to interpret the Constitution and thus create law, but the Constitution (Article 1) specifically gives that power ONLY to Congress. Now some folks will argue that the Constitution is out of date and needs to change on occasion—this does happen, but the Founders created the amendment process to make those changes and not the courts. So, if the Constitution requires a change it can only be done by a formal amendment to the Constitution and there are two ways to do so:
- Method 1—2/3 of BOTH Houses of Congress pass an amendment and then that amendment is ratifies by 3/4 of the state legislatures, or
- Method 2—2/3 of the state legislatures request a Constitutional Convention to amend the Constitution
Of course, this has not stopped politicians from trying to get around these rules. But to illustrate why courts cannot interpret or change the Constitution, consider Prohibition—the banning of alcohol in the United States. If all that it took to ban alcohol was a court interpretation, why did the prohibition supporters have to go through all that trouble to pass a formal amendment to ban alcohol if they could just go to a court? Instead, they had to pass the 18th Amendment. And, why then did they have to pass a formal amendment to repeal the 18th Amendment? The reason is that courts cannot change, add, or reinterpret the Constitution—only an amendment can do that.
Here is why: according to Political Tactic #6, if you do not like the rules just get a court to reinterpret them for you. Let us say you are driving down the road at 55mph in a 55mph zone. The lights flash behind you and the trooper pulls you over.
DRIVER: “ What’s the problem officer?”
OFFICER: “ You were speeding.”
DRIVER: “ No I wasn’t. The speed limit sign says 55mph and I was going 55mph.”
OFFICER: “ Yeh, but I’m reinterpreting that 55mph sign to mean 25mph and make this stretch of road a school zone.”
See, if courts can just make up the law and reinterpret as they go, you do not then have Rule-of-Law, you have Rule-of-Man.
The trick of Political Tactic #6 is to get a court to change the rules to suit your needs as you go along. Thus, a judge, politician, or bureaucrat can apply the same law differently for their friends and supporters than they do for those who are not supporters.
The most common arguments you will hear using Tactic #6 include:
– It’s for the greater good…
– The Constitution is too old…
– The founders could never have predicted…
– The Supreme Court said…
Here is the problem with Political Tactic #6 and why the Founders never gave the courts power to interpret the Constitution. Consider the person who was pulled over for going 55mph in what the officer reinterpreted to be a 25mph school zone:
The driver continues to object to the officer’s reinterpretation of the speed limit sign.
OFFICER: “ Step out of the car and put your hands on the hood of the vehicle.”
DRIVER: “ What, I have right!”
OFFICER: “ True, but that Constitution is SOOOOO old and we don’t do that any more…
At the police station the driver is brought into processing.
DRIVER: “I want to call my lawyer.”
BOOKING OFFICER: “Lawyer?!? That 5th Amendment is sooo old. We don’t do that anymore. Besides, it’s for the greater good that we take dangerous drivers like you off the streets.”
After a few months in jail since the Constitution is too old to have those quick and speedy trails, the driver’s court date finally comes.
DRIVER: “ Your Honor, I was not speeding. The officer changed the sign…”
JUDGE: “ Sure, but the Founders could never have predicted speeds that our cars and planes can go—especially when the Founders were used to horseback. Besides, the Supreme Court recently said that…”
Of course this is a hypothetical situation, but it is actually the reason why courts were NEVER given the power to interpret the Constitution and change its meaning. This situation, but the way, is what happens over and over again in many places around the world—in most countries law does not matter—all that matters is how close of a friend you are to those in power or how much you can pay the person charging you with an alleged crime.
What happens with Tactic #6 is that people will take advantage of most Americans not know that the courts cannot interpret the Constitution or make their own laws that do not have enough votes in Congress to pass that they will continually use the courts to change laws (unconstitutionally) until they get the outcome they want.
Please respond to the following Discussion Pol110 Week 7
The powers of Congress:
- Based on the scenario and the knowledge gained from this section, address the following:
- Describe key elements of the role that Congress plays within the U.S. federal system, with particular focus on Congress’ ability to reflect the will of the people. Support your argument with at least two concrete examples.
- What are some of the issues that Congress is permitted by the Constitution to be involved in? (See Article 1, Section 8 of the Constitution...)
- What are some of the thing Congress is NOT allowed to do?
- What is the role of Congress in relation to the role of the President, keeping in mind that they are two SEPERATE and COEQUAL branches of government?
- What has been the results of the 17th Amendment on the Congress, states, and the country as a whole?