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Why Courts Can't Defend the Constitution 2010/01/25 (03)
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Jun 5, 2025
Jon Roland explains how overloaded courts cannot overturn all the unconstitutional legislation passed by Congress. With Lela Pittenger. Austin Constitution Meetup Jan. 25, 2010.
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so uh we have here this evening Leela
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piter who is uh one of our fellow
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activists I've asked her to join me here
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and uh to ask any questions she might
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have or make any comments and uh so we
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can have uh a little bit of uh back and
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forth here okay so my first question
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would be how do you respond to the
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people who would tell you or might say
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well I thought this is what the
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Judiciary was for it was their job to
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decide when legislation was
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unconstitutional isn't that why we have
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a supreme court how do you respond to
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that well that is what they're supposed
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to do
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unfortunately the Judiciary is very
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often part of the
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problem as it has
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emerged because while it was the the
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Judiciary was supposed to be an
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independent
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branch that could stand aide th efforts
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by the other two branches to violate the
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constitution the problem is they're not
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strong enough to do
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that now they're strong enough to do a
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lot of things we can object
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to a lot of the problems that was as
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said we've seen are actually originate
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among the among the
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judges but they are not in general
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willing to stand against Congress for
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very much
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once in a while they will as they
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recently did in the case of Citizens
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United versus the Federal Election
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Commission now that was a five to4
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decision uh a lot of us Libertarians
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think it was a great
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decision uh a lot of Democrats think it
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was a terrible
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decision but regardless of what side you
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come down on on it it was very unusual
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now the Supreme Court has not overturn a
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major piece of congressional legislation
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like that for many years they're very
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reluctant to do
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so uh they get a lot of pressure when
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they do
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so there's also the problem that
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Congress introduces about 20,000 bills a
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year they pass about you know about
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2,000 of them wind up becoming part of
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legislation uh there among those there
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are perhaps
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20,000 independent Provisions Each of
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which could be the basis for a cause of
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action a typical case to carry it all
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the way to the Supreme Court was will
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generally cost about a million
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dollars very few people can afford to do
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that
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if everybody who could afford if
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everybody had came up with the money to
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do it the courts couldn't handle the
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load it would far exceed their ability
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to hear all the
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cases the Supreme Court
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gets about 8,000 cases submitted to it
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every
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year of that number it's only able to
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hear about 80
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uh justice Roberts when he was under
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consideration for chief justice said
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that he was hoped to be able to increase
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the productivity of the
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Court they used to be able to hear as
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many as 150 cases a year that still
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isn't very
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many
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so the courts particularly the appeals
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courts are a bottle Act
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they simply cannot even if they were
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disposed to do so hear all of the cases
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that should be brought before them
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Congress knows
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that they have developed the attitude
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well we don't need to worry about
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whether it's constitutional we'll just
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pass it and and you know let let the
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courts deal with it knowing full well
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that the courts cannot possibly deal
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with all of the unconstitutional
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legislation there's just too much of
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it so that leads us with a problem of
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finding other remedies other ways of
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opposing unconstitutional
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legislation Now The Ballot Box is of
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course one of them but it's very
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difficult to get voters excited or
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interested over particular
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cases there again there are just too
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many of them most people don't don't
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understand them well enough to make it a
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political
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issue uh I have been one who has been
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trying ever since I ran for congress in
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1974 to make constitutional compliance a
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leading issue in a political
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campaign and until Ron
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Paul uh this past
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year uh it was almost unheard of for
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constitutional issues to be leading
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issues in Poli iCal campaigns for the
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presidency and almost never for
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congress
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uh it's unclear whether this is really
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the result of a lack of interest on the
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part of Voters or whether it is simply
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uh an effort on the part of both
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incumbents and Challengers to
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avoid uh issues that they think their
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voters won't understand
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but regardless of the
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reason we have lacked an effective
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mechanism to overcome this flood of
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unconstitutional
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legislation and of course let's not
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forget all the
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regulations and uh of course of the
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Court decisions
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themselves uh when the Supreme Court
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decided in kilo versus the city of
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Hartford which is in
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Connecticut that it would not overturn
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the effort of the city of Hartford to
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take
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property under its imminent domain
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proceeding for not for public use but
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for private
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development that raised The
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Firestorm but that's very
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unusual and it even led to an amendment
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here in
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Texas but it very poorly crafted
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Amendment yes it did get adopted but
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that one really needs to be
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Rewritten and the fact that it would be
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poor so poorly written is a problem in
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itself uh we need to have a way of uh
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addressing these constitutional issues
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more
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effectively and uh the
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Nullification uh efforts that I've
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described could be another tool
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important tool for doing that one in
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particular that would educate the voters
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in a way that nothing else seems to
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do okay so my next question is you
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talked about this panel not being just
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common men but actually people who have
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a strong constitutional background and
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study and understanding let me ask you
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recently with the State Board of
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Education and who reviews their
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materials a lot of people came to
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understand that the reviewers that list
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had maybe been stacked by certain
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special interest groups how do you make
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sure that this group of people who might
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be on this board would truly be of many
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backgrounds many interests and not
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somehow stacked with nominees from
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special interest groups who have a
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particular desire for the the movement
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of and swaying of this board
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is that a fair question yeah well one of
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the things we try to do there is to
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select them at random from a much larger
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pool now of course the pool could be
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stagged but if the the idea is that a
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pool of constitutional Scholars would be
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those who have written something of a
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scholarly nature either a book uh a law
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review article a scholarly
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Journal article something of that
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sort uh so they've demonstrated their
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pro professional ability to research and
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write in this
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field now of course question actually ra
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arises well most of the people in
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Academia are liberals yes so what's to
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prevent this commission from being
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stacked with liberals who will
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reinterpret the Constitution will accept
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unconstitutional Federal actions as okay
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just fine with them
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well uh I think here in Texas at
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least there are so
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many people with some constitutional
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credentials who are libertarian or
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conservative that we will probably get
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not get that kind kind of mixture
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