Implied Ratification of Judicial Amendments
(Read first my post on “Rule of Law and Judicial Amendments.”)
“That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” –Declaration of Independence
At the foundation of our form of government is the principle of Popular Sovereignty as outlined above (in bold italics) from the Declaration of Independence. This principle transcends even the U.S. Constitution and is the very principle which gave it birth. As much as I hate to admit it, an interesting corollary to this premise is that an unconstitutional act of government can, in a certain set of circumstances, still be a just exercise of power, so long as the People give their consent to it.
Here is an example to illustrate my point:
If a Master sends his Servant on an errand with particular instructions only to buy bread, but then the servant buys jewelry on the Master’s credit instead, then the Master is not bound to pay for the jewelry, and the full legal risk lies on his Servant. Not only will the Servant have to pay for the jewelry, but he will also likely be disciplined by his Master. But if the Master decides he likes the jewelry, and decides to accept and wear the jewelry, thereby showing by his actions before the world that he accepts his Servant’s conduct as his own, then the Master becomes legally bound as though the purchase was fully authorized, because he has “implicitly ratified” his Servant’s conduct.
The Constitution has a “ratification” process as well. Alterations to the Constitution are only to be made by a “ratification” by three-quarters of the States of a proposed amendment. If changes are made any other way, such as by a liberal Supreme Court “interpretation,” then such changes are unconstitutional. In such a case, the Supreme Court would be like the unauthorized Servant, who did not follow his Master’s instructions, and therefore could not legally bind his Master (the People) to his conduct. In such a case, the act of the Supreme Court would be both an unconstitutional act and an unjust exercise of power.
However, if the People should subsequently turn the other way, ignoring the Supreme Court’s act which exceeded the authority granted, perhaps because 1) they ultimately decide that they like the decision of the Supreme Court, or 2) they decide rather to put their heads in the sand because they do not want the responsibility of managing their servant, then, whether or not the Supreme Court actually operated within its mandated authority, the People become bound by its decisions because of their tacit acceptance of its behavior. The act of the Supreme Court is still strictly unconstitutional, but it becomes a just exercise of power, under the Popular Sovereignty theory. In other words, the People will ultimately and justly have to bear the responsibility for the Supreme Court’s behavior, because they did not expressly reject it at the time of the violation.
This is not to say that the People cannot later repent of their ratification in a moment of better judgment, but the larger landscape will have already changed. To continue our analogy: With the Master and the Servant in the Market-place, the precedent will have already been set in the market-place that the Servant has a much broader authority than he really has. Thus, market vendors will be fully justified in believing that the Servant is still authorized by the Master to do things beyond the recently diminished authority. Therefore, nothing short of a universal declaration by the Master, and all the time and energy which that implies, will be able to set the record straight and alter old habits. In other words, speaking again of the modern day: The States will have to be continually fighting, asserting, watching, and defending, if all at once they should decide to take back what they had once given away, and to keep it from those who now stand to lose from the new status quo.