Cujo’s got a great tutorial up on the Constitution, the Courts, and how American democracy works. Perhaps if it’s patiently and repeatedly read to Cons, something will sink in.
In that spirit, let’s start by repeating this part of the lesson:
The way that the framers of the Constitution tried to ensure that government would be bound by the Constitution was to set up a court system that could interpret it. Article III defines the Supreme Court, and specifies what powers and responsibilities it will have. Section 2 includes this sentence:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
Obviously, I’ve added that emphasis, which points out that courts, to at least some degree, were allowed to interpret what the law was. Alexander Hamilton, in The Federalist Number 78 wrote this about the role of the courts:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
In a perfect society, where the government always correctly interpreted and observed the law, court powers of this nature would be unnecessary. Of course, in a perfect society, courts would probably be unnecessary in every way we now use them.
Do you think it would help if we tattooed it on their chests, where they could see it every morning as they’re flexing their flab in front of the mirror pretending they’re Jack Bauer?