Implied Ratification of Judicial Amendments
(Please 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 (emphasized above from the Declaration of Independence), which simply means that the People are the ultimate sovereign in a just government. 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 deviant 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.
Another kind of ratification is express ratification, meaning one must affirmatively authorize the conduct by some overt action. The Constitution has such a ratification process written into it – the amendment process. Alterations to the Constitution are only to be made by a “ratification” by three-quarters of the States of any proposed amendment. If changes are made any other way, such as by a liberal Supreme Court “interpretation,” then such changes are technically unconstitutional. In such a case, the Supreme Court would be like the unauthorized Servant, who did not stay within the confines of his Master’s instructions, and therefore could not legally bind his Master (the People) to his conduct. If the People should disapprove, 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 grasp of extra-constitutional authority, either because 1) they ultimately decide that they like the decision of the Supreme Court, or 2) they would rather not engage in the work required to manage their servant, then, whether or not the Supreme Court actually operated within its mandated authority, the People become justly bound by its decisions because of their tacit acceptance of its behavior. Therefore, although the act of the Supreme Court is still strictly unconstitutional, it becomes a just exercise of power through the joint principles of “Popular Sovereignty” and “Silence as Consent.” In other words, the People will ultimately and justly have to bear the responsibility (and consequences) 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 authority only recently diminished by the Master. Therefore, nothing short of a universal declaration by the Master, and a constant watchfulness by the Master, will be able to set the record straight and alter old habits. In other words, the People, if suddenly they should decide to take back what they had once given away, will have to exert a large amount of energy, especially in the beginning, to create a new status quo, and then will have to learn to be ever watchful in order to prevent another costly regression.
NOTE: When I call upon the People to reject such decisions, I am not calling for violence, or even for nullification of the court’s decision, but at the very least for a formal declaration and a relentless and repetitive call for the Supreme Court to reconsider its behavior. (Think of the 13 colonies’ declarations and petitions to King George.) Also for the election of representatives that will fight the Supreme Court with legislation. And if the court continues to override the People on a regular basis, then the greater extremes of nullification and resistance to federal enforcement, as suggested by Madison and Hamilton in the Federalist papers, may become the only measure of enforcement left to the states by a tyrannous federal government.