-Caveat Lector-
The Supreme Court of the United States:
Guardians of the Constitution or Watching Out
for Their Own?
by Daniel J. Pilla
By the very terms of the Constitution, all judicial
officers, as well as others in government service,
"shall be bound by Oath or Affirmation" to support
the Constitution. Article VI also sets forth what
is known as the 'Supremacy Clause'. It holds that
the Constitution, all laws pursuant to it, and all
treaties are the supreme law of the land and that
"the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws or any State
to the Contrary notwithstanding."
It is for this reason the United States is referred
to as a nation of laws, not of men. Our republican
form of government assures all citizens that basic
law, justice, liberty, and due process will be
observed as to each person, regardless of his
financial standing or political influence.
As the highest court in the land, the Supreme Court
is intended to be the guardian of liberty. In
Federalist No. 78, Alexander Hamilton referred
to the judicial branch as the
"citadel of the public justice and the public
security."
The Supreme Court, indeed the entire judicial branch
of government under Article III, was set up as an
element of government independent of the other two.
The founders knew that an independent judiciary
was critical to maintaining liberty.
The legislative powers are vested in Congress under
Article I. They are intended to pass laws necessary to
carry out the terms of the Constitution as set forth
in the preamble. The executive department under Article
II possesses the power to carry out the legitimate
functions of government and to control the armed
forces. Described in modern terms, the Supreme Court,
on the other hand, is intended to function as a goalie.
It is to 'kick out' any legislative or executive act
that infringes the plain language of the Constitution.
Regarding legislation, the court is to do nothing
more than compare the language of the statute with
that of the Constitution to see whether the former
comports with the latter. If so, the statute is
legitimate and enforceable. If not, the statute is
void under the terms of Article VI. It is to be
struck down.
Of the language describing the three branches of
government, Article III is by far the most succinct.
The founders dedicated ten sections in Article I to
explain the function of the legislative branch and
four lengthy sections in Article II to describe the
executive. Article III has just three short sections.
These, combined with the concise language of Article
VI, make it clear that the court has no power to make
laws or negate specific Constitutional provisions or
protections. The court is a goalie, not a forward.
Goalies do not score.
For decades since the 1930s, however, the Supreme
Court has taken an activist role. Too many of its
decisions fall outside the scope of judicial review;
they have the character of legislation. As a result,
our constitutional liberties have eroded substantially,
while at the same time the power and reach of the
federal government has been extended to all areas
of our private lives in absolute disregard of the
limitations set forth in the Constitution.
The Judges Go to Court
This is particularly true in tax cases. Whereas
the Constitution plainly confines the power of
government in several important areas, virtually
all the limits have been declared invalid as they
relate to the Internal Revenue Service. But when
the power of taxation imposes upon the rights of
federal judges, the courts are quick to protect
their own.
Consider the case of Judge Terry J. Hatter and
15 of his colleagues. Hatter and the others are
federal judges all appointed to the bench sometime
before January 1983. Like most federal employees
at the time, they were not subject to the Social
Security tax laws. Rather, they enjoyed their own
pension under the Civil Service Retirement System.
Beginning in 1982, however, Congress changed the
law. To address the growing concerns over the
solvency of Social Security, two major tax laws
were passed in 1982 and 1983. The first was the
Tax Equity and Fiscal Responsibility Act of 1982.
The second was the Social Security Amendments of
1983. The first made the hospital insurance
portion of Social Security applicable to federal
employees, including judges, effective January 1,
1983. The second made the old age and survivors
disability portion -- the bulk of Social Security
taxes -- applicable to federal employees, including
judges, effective January 1, 1984.
As a result of being brought within the pale of
the Social Security tax scheme by these two laws,
Hatter and his brethren sued the federal government
claiming a violation of their constitutional
rights. How can imposing income taxes on judges
possibly violate the Constitution? If we citizens
have to pay taxes, why not federal judges? The
answer lies within the language of Article III,
section 1, which holds that the compensation of
federal judges "shall not be diminished during
their Continuance in Office." Hatter argued that
the imposition of the tax after he took office
violated that clause.
Hamilton described the purpose of the compensation
clause as being essential to protecting the
separation of powers. He wrote in Federalist No.
79 that,
"in the general course of human nature, a
power over a man's subsistence amounts to
a power over his will."
Nothing could more aptly describe the power of the
purse. Our founders knew that if the judiciary was
to remain independent of Congress and the executive
department, their compensation would have to be
beyond their tampering.
The language of Article III has always been broadly
construed to prohibit any diminution in compensation
during a judge's tenure. Indeed, a similar suit was
brought by federal judges in the years immediately
following the adoption of the income tax in 1913.
The case of Evans v. Gore found its way to the Supreme
Court, where it was held that the prohibition contained
no exception for "diminution by taxation." Judges
appointed to the bench after the tax took effect were
subject to it. However, those who held office before
the tax was enacted were held exempt.
In the case of Hatter v. United States, the U.S.
Court of Appeals reached the same conclusion. The
Supreme Court unceremoniously affirmed the ruling.
Some Are More Equal Than Others
When the question of the constitutionality of a federal
tax relates to a federal judge, the courts seem to have
no difficulty ascertaining the plain language of the
Constitution and applying it to the statute. When it
is found that the Constitution prohibits the legislative
act prescribed by the statute, the courts have no
difficulty slapping down the infringement.
But let us contrast that with a case involving a
private citizen and his equally compelling
constitutional argument. That case is United States
v. Lee (1982). The case involved precisely the same
Social Security laws. The fundamental difference is
that Lee was not a federal judge but a self-employed
farmer and carpenter. He was a member of the Old
Order Amish and employed several persons in his
business. Lee's complaint grew not from the
compensation clause but from the freeexercise
clause of the First Amendment.
Because the Amish are religiously opposed to the
kinds of benefits offered by Social Security, Lee
did not participate in the system. He neither paid
into it nor expected to draw from it.
Prior to the Social Security amendments of 1982 and
1983, the law expressly provided that Lee and those
of his religious community were not required to
withhold Social Security taxes from their employees
or pay the matching funds. The new law, however,
extended the tax obligation to wages paid by
employers to employees, even if the employees were
not liable for the tax themselves. As a result, Lee
found himself faced with the duty to pay matching
funds for a tax that he was plainly opposed to on
religious grounds and that he was exempt from
paying under prior law.
Lee opted to stick to his religious principles and
did not pay the taxes. He was assessed several
thousand dollars by the IRS, and after paying a
portion of the tax, he sued for a refund. After
initial success, Lee found himself before the
Supreme Court.
The First Amendment, of course, expressly states
that Congress "shall make no law" respecting an
establishment of religion or "prohibiting the free
exercise thereof." In its opinion, the Supreme
Court found that because of the Amish faith,
"compulsory participation in the social security
system interferes with [Lee's] free exercise
rights"
under the First Amendment. This is the conclusion
a liberty-minded person would have hoped the court
would reach. Unfortunately, its reasoning did not
end there. Chief Justice Warren Burger went on to
explain that the courts must strike a 'balance'
between the rights of the citizen and an 'overriding'
governmental interest. He reasoned that when the
government could show such an 'overriding interest',
it could infringe the plain and clear constitutional
rights of the citizen.
The Court held that Lee must be forced to participate
in the Social Security program despite its finding
that this expressly violated his First Amendment
rights. It rationalized the infringement by citing
the government's 'overriding interest' in collecting
taxes and stating that
"mandatory participation is indispensable to
the fiscal vitality of the social security
program."
Citing the questionable financial soundness of the
system, Chief Justice Burger observed that
"widespread individual voluntary coverage
under social security.., would undermine
the soundness of the social security program."
In no uncertain terms, the Supreme Court said that
because the government needs the money it is permissible
to violate the constitutional rights of a citizen. Thus,
the only 'overriding governmental interest' involved in
the Lee case is financial.
In concluding, Chief Justice Burger reasoned that
religious beliefs
"can be accommodated, but there is a point
at which accommodation would radically
restrict the operating latitude of the
legislature."
The Supreme Court was saying that Congress must have
free rein -- absolute freedom -- to pass laws. Religious
and presumably other constitutional rights cannot be
permitted to exist if they threaten the government's
ability to do so.
Note how far this logic is removed from the model set
forth by Hamilton in Federalist No. 78. In affirming
the court's power of judicial review, Hamilton said,
"If there should happen to be an irreconcilable
variance between the two [the Constitution and
a legislative act], that which has the superior
obligation and validity ought, of course, to be
preferred; or, in other words, the Constitution
ought to be preferred to the statute."
>From beginning to end, the Bill of Rights places express
restrictions on government's ability to pass laws. Without
such restrictions, this government is no better than any
dictatorship that has ever existed. Those restrictions
directly and simply forbid the invasion of individual
rights by a government eager to pass laws that infringe
our liberty. Yet the Supreme Court in Lee held that the
limitations are placed on the individual, not on government.
Individual rights can be 'accommodated', but only if they do
not stand in the way of some legislative goal. With such a
test, there is literally nothing the federal government
cannot do in the name of some 'overriding interest'.
Are Rights to Be Balanced?
Where in the First Amendment does it say that your religious
liberty is dependent upon a 'balancing' test? Where does
it say that Congress should 'accommodate' those rights,
but only if they do not interfere with its own right to
legislate? Just as the Supreme Court noted in Evans
regarding Article III and the compensation clause,
there are 'no excepting words' in the First Amendment.
The right is absolute and is expressly intended to limit
Congress in its zeal to pass restrictive laws. What other
purpose is possibly served by the plain language
"Congress shall make no law"?
When it comes to the rights of the average citizen, the
courts have abandoned a strict reading of the plain
language in favor of judicial creativity designed specifically
to achieve the predetermined goal of getting into your pocket.
Hamilton insisted on strict adherence to the letter of the
document.
"If we set out with.., a scrupulous regard to
the Constitution," he said, "the government
will acquire a spirit and tone productive of
permanent blessings to the community. If, on
the contrary, the public counsels are guided
by humor, passion, and prejudice; or from
resentment to individuals, or a dread of
partial inconveniences, the Constitution is
slighted, or explained away, upon every frivolous
pretext, the future spirit of government will
be feeble, distracted and arbitrary."
Hamilton's message is simple. Continuity of the moral
fabric of society is dependent upon legal absolutes,
especially where citizens' rights are concerned. If
the government is free to 'explain away' the
protections of the Constitution, in the end there will
be no Constitution. If the rights of the citizens are
made the 'sport' of every change of governmental opinion,
in the end citizens will have no rights.
How is it that a federal judge's constitutional rights
are more sacred than those of the average citizen?
Judges are charged with the sacred duty of protecting
the rights of all citizens from encroachment by government.
Yet, as we have seen, they embrace that duty when it comes
to their own liberty and tear it to shreds when it would
cloak the liberty of the average man.
What has happened to our courts? They have caused our
priceless constitutional system of law and limited
government to deteriorate. What system of taxation or
social program is so important that we should sacrifice
our precious liberty to save it?
***
The preceding article is from The Freeman, Ideas on Liberty
September 1997 ... for more information see www.fee.org
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