By Donald Brockett


Are the decisions of the United States Supreme Court the law of the land? Are they to be considered the same as laws enacted by our elected representatives in Congress? To answer these questions, we must look at the wording in Article VI, what is referred to as the “supremacy clause” of the Constitution.


Are there ramifications resulting from the absence of language in the United States Constitution relative to the power of the United States Supreme Court?


Just as important as what is said in a document, especially in the United States Constitution, the founding document and first law of our nation, is what is not said or what is omitted. The principle is of special importance because with this document the original individual states joined to govern themselves and established the first federal law.


Decisions of the United States Supreme Court are not the supreme law of the land.


Article VI clearly states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made under the Authority of the United States, shall be the supreme Law of the Land; ….” The language of this section could have included decisions of the Court, the third branch of the federal government the United States Supreme Court, but it did not.


One of the Latin expressions taught in law schools is “Expresio Unius Est Exclusio Alterius” which means “the expression of one thing is to exclude another.” The legal concept is that if a legislature, or here a legal foundation document, the United States Constitution, specifically mentions only certain items from a larger class of items, it meant to include only the items specified and to exclude those items that were omitted. There is no mention of the decisions of the United States Supreme Court as the supreme law of the land in this clause; therefore, Expresio Unius Est Exclusio Alterius – the expression of one thing is to exclude another.


Another reason the decisions are not the law of the land is that it is a precept of contract law that a contract can only be amended by the parties to that contract. Under Article V, the Constitution is to be changed only by an amendment proposed by the representatives of the people and ratified by the states. The United States Supreme Court was not a party to that contract, the Court was created by it, therefore it is inappropriate for the Court to amend the contract by the manner in which it interprets words and phrases of that contract or creates words and phrases to justify its decisions.


When arguments were presented to the people urging that they adopt the Constitution as drafted, the counter argument was made by anti-federalists that judges would have the ability to construe the language of the Constitution according to the spirit of the words expressed. Nowhere did our founders express the thinking that the principles of the Constitution should be extended by gleaning the “spirit of the words” contained therein. In fact, Alexander Hamilton wrote in The Federalist:


“In the first place, there is not a syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the constitution ….”


Is the form of government established by the Constitution a democracy or a republic? Clearly we have a republic as pointed out in the story reported that after the Constitutional Convention ended a woman approached Benjamin Franklin and asked him what kind of government the nation would have and he replied, “A Republic madam, if you can keep it”. Have we kept it by allowing one branch of the government, the Court, to become our supreme and absolute ruler?


In a republic, the citizens are governed by elected representatives not by an unelected oligarchy like the Court. Under the Constitution we are to be ruled by ourselves, by laws passed in Congress made up of our elected representatives. Article I, Section 1 says: “All legislative Powers herein granted shall be vested in a Congress of the United States….” The laws that rule us must be made by the legislative branch. Nowhere is the Court given the power to make law or interpret the Constitution so it applies to us as if it were law. Oftentimes, we hear people argue that we have a democracy, however, that is not true unless a vote is taken by initiative or referendum where all the people vote on an issue or issues rather than having them decided by elected representatives. Neither of those procedures is available with regard to the federal government.


We have a constitutional republic. Why? Because the elected representatives are bound by the terms and constraints of the Constitution. Article IV, Section 4 of the Constitution provides: “The United States shall guarantee to every State in this Union a Republican Form of Government, ….” In addition, if this were not true we would need to change the words of the Pledge of Allegiance to the flag that says: “I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands,….”


The drafters of the Constitution had in mind that to check and balance the power of the Court impeachment would be a remedy. In addition, the Court can only enforce its decisions through the executive branch of the government and if the president does not acquiesce in the decision it would not be carried out.


Basically the Court renders advisory opinions, enforced by the U.S. Marshall’s office, which is under the president’s branch of government as part of the checks and balances scheme that was adopted in the Constitution. If the president does not want the opinion enforced he or she can simply pay no attention to it or as President Andrew Jackson who refused to enforce a decision against the state of Georgia is widely quoted as saying, “John Marshall has made his decision; now let him enforce it,” (his actual words to Brigadier General John Coffee were: “The decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.”) If it were otherwise, the Court could render a completely outrageous decision and all citizens would have to follow it.


Many argue that the Court is the final arbiter of all legal questions concerning the interpretation of the Constitution and such determinations are binding on everyone. Some believe we must follow the guidance of the Court and even though Court is only one branch of the three branches of the federal government its decisions cannot be questioned.


Thomas Jefferson was concerned about the role of the Court and expressed it without hesitation in a letter to William Jarvis:


… you seem … to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps…their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective countroul. the constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots. it has more wisely made all the departments co-equal and co-sovereign within themselves…


…I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is, not to take it from them, but to inform their discretion by education. this is the true corrective of abuses of constitutional power. Pardon me, Sir, for this difference of opinion. my personal interest in such questions is entirely extinct; but not my wishes for the longest possible continuance of our government on it’s pure principles. if the three powers maintain their mutual independence on each other, it may last long: but not so if either can assume the authoritie’s of the other.


In fact, he expressed himself in more direct language in his letter to Thomas Ritchie, Dec. 25, 1820 when he stated:


… but it is not from this branch of government we have most to fear. taxes & short elections will keep them right. the Judiciary of the US. is the subtle corps of sappers & miners constantly working under ground to undermine the foundations of our confederated fabric. they are construing our constitution from a coordination of a general and special governments to a general & supreme one alone….


Why would the people in a constitutional republic where they are ruled by those they elect want to have matters finally decided by a group of unelected officials who are basically appointed for life? Would they not rather consider the opinions of the Court and then express to their elected officials in Congress the outcome they desire?


Does Congress have the power to disobey the decisions of the Court? If not, how would those elected representatives check and balance the power of the Court? How does the executive branch, the President, check and balance the power of the Court?


For too long we have been ruled by an oligarchy, the United States Supreme Court and it is time for citizens to understand the form of government by which we are supposed to be ruled as our founders designed it.


Decisions of the Court are only opinions, determined by the third branch of the government, concerning the validity of issues which then need to be addressed by the legislative branch, Congress. If the people, who ultimately have the power to govern themselves through their elected representatives, agree with the opinion and desire to have legislation agreeing with the opinion, they will cause that legislation to occur. The Court is not entitled to rule by decision, otherwise there would be no check and balance on the power of the Court and the result would be tyranny.


It is time to understand the proper role of the Court and not continue with a blind adherence to its decisions or we will continue to be ruled not in a republic by our elected representatives but by the tyranny of an oligarchy.


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Donald C. Brockett is a former Washington state attorney, who served 6 terms as Spokane County Prosecuting Attorney and is now retired after a total of 52 years between public and private practice.
During his time in the prosecutor’s office, he tried numerous cases in the District and Superior courts of Spokane County. For many years, he handled all appeals in the Washington State Supreme Court and later in that court and the newly created Court of Appeals for Division III. He has argued cases in the Ninth Circuit Court of Appeals, and the US Supreme Court.