Mike Huckabee held a town hall in Waukee, Iowa, last week, where he gave an eloquent explanation of why the Supreme Court’s same-sex marriage decision is not legitimate and should not be accepted as such. This is not what the Founders intended, and more candidates need to be speaking this way — the Supreme Court is not the Supreme Being:
AUDIENCE MEMBER: …We all know that gay marriage is the law of the land…
MIKE HUCKABEE: Well, let me correct you. Same-sex marriage is not the law of the land. And let me tell you why. Because the Supreme Court cannot make law. And so I know we say it is, but — let’s be very clear. Let’s go back to the fundamentals of the Constitution. Three branches of government equal to each other. Each has checks and balances with each other. No one branch can just do something and say, to heck with the other two branches. It doesn’t work like that.
For 70 years, and it’s been about that long, since the ’40s, we have pretended that the Supreme Court was the supreme branch. It really wasn’t this way up until 70 years ago and from the ’40s forward. Here’s what’s happened — politicians in both the legislative and executive branches allowed the courts to make tough decisions that they didn’t have the political courage to make. So they’d say the court made this decision, and they’d say, ‘Well, there’s nothing we can do. That’s the court ruling.’ And they would go ahead and act as if the court had made a law.
Now the reason that that’s wrong is that the court — read the Constitution — they have no power to write a law. They can’t do it. Only Congress can create a law, and it’s not law unless the president signs it. And if it’s challenged, the Supreme Court can review it and determine whether it’s constitutional, but whether it’s implemented as constitutional or not goes back to the executive, because he has the enforcement power. Congress has the power of the purse; the executive has the power of the sword. Frankly, Jefferson said that the power of the court, though equal, was the least equal of the three because it had no power to either stop the purse or to enforce with the power of the sword.
I don’t mean to dig too deep into the details or weeds here, but one final thing I want you to clearly understand about this — I just know that we’ve been hoodwinked into believing that we can do nothing. Jefferson said that if we were to accept the notion that the court ruling is the last word, then we have now acquiesced to what Jefferson called judicial tyranny. It’s where the judicial branch now becomes the authority that ends all further discussion. Think about that for a minute.
And if you don’t believe that it’s a view held by people with more legal authority than me, read the dissent of John Roberts in the same-sex marriage case. And here’s what he reminded us. By the way, Roberts has done some really ridiculous things, but on this he was brilliant. As chief justice he said something that’s historic and unprecedented for a chief justice, when he referred to his colleagues on the court who had written for the majority, he did not refer to them as the ‘esteemed colleagues’ or the ‘distinguished members of the Court’. That would be the normal nomenclature and vernacular that would be employed when a chief justice would address the other justices. Read the dissent; here’s what he called it. He never referred to them as justices or judges. He said ‘five unelected lawyers.’ And he further said that if this decision is accepted, then we have allowed 320 million people to be ruled by five unelected lawyers. Roberts got it exactly right. He understood that these five justices had reached out and not rendered a decision based on the Constitution or law, but on words like ‘spirituality’ and ‘intimacy’ which are nowhere in the Constitution, and had created a law out of thin air. That’s why he was so contemptuous of their decision.
I don’t mean to overwhelm this, but here’s what I think we’ve got to understand. In history, there have been times — Jefferson, Jackson, Lincoln, all ignored Supreme Court decisions that they clearly knew were unlawful. The most notorious was the Dred Scott decision in 1857 which said black people weren’t fully human. Let me just ask, does anybody here agree that that decision was the right decision? I mean, it was the Supreme Court’s decision. So if the Supreme Court decides something and it’s now the law of the land, shouldn’t we now be disrespecting black people? Why do we not? Well, because one, Abraham Lincoln refused to accept it. He refused to abide by it. And he instead signed the Emancipation Proclamation and later we passed the Fourteenth Amendment, which codified into law what Lincoln said was the obvious law.
So, I just want to be clear that sometimes, what we’ve got to do is to have a president who will say, ‘Court, we thank you very much for your decision. We appreciate it. We’ll review it. But if there’s no law to support it, until the people’s representatives pass such a law, and I sign it and agree to enforce it, there is no effect of that law as of right now.’ And that’s what should have happened in that case and what will happen if I get elected president. That’s how this should be handled.
And again, I understand, people will say, ‘Oh, my goodness.’ But let me tell you, I want to say, oh my goodness, why have we allowed judicial tyranny to exist in this country? Why have we not challenged this notion? Because it is clearly, blatantly, unconstitutional. As a governor, when the Supreme Court of my state made a ruling on school finance, and said that we were underfunded, we were, and they were right. But you know what, we didn’t send new checks to the school districts the next day. Why? Because we had to go to the legislature, we had to come up with a school funding formula, we had to create enabling legislation that enacted a specific funding formula, I had to sign it, and then I had to order the Department of Education in my state to send those checks. The court didn’t have the power to decide what the formula was, and they didn’t have the power to sign the checks and send them out to the school districts. We’ve got to understand this.
And I just want to scream sometimes from the rooftops — let’s get back to when we take an oath to support the Constitution, let’s actually do it! We might be surprised how well it works if we ever employ it.
Thomas Valentine is a researcher for APIA and a junior at the Franciscan University of Steubenville.