Article VI, section 2 of the U.S. Constitution contains the Supremacy Clause, which says:
“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land . . . .”
There is nothing in the clause about U.S. Supreme Court opinions.
Judicial supremacy is a belief that the U.S. Supreme Court no longer just decides how to interpret and apply the Constitution for the purpose of entering a judgment that resolves a controversy between parties to a lawsuit, but that the opinion itself, explaining the reasons for its judgment, is equal to the Constitution and becomes the supreme law for the whole nation.
Would you agree with FACT that the doctrine of judicial supremacy gives federal courts powers they do not have under the U.S. Constitution and makes the Supreme Court supreme over the Constitution itself?
While some efforts across the country have been successful in limiting abortion, hundreds of thousands of unborn babies still lose their lives to abortion every year in the United States.
FACT believes that life begins at conception, and we drafted a bill protecting life in the womb as soon as it can be detected. It was based on the argument that the 9th Amendment to the U.S. Constitution protects our absolute rights at common law, one of which is the right to life even “in the mother’s womb.” This legislation would have been drastically different from “heartbeat bills” because it does not argue for life within the limited confines of the Court’s 14th Amendment Roe v Wade decision. Roe is not precedent for a 9th Amendment-based law.
Every heartbeat bill ever enacted has been held unenforceable.
Do you agree with FACT and others, that taking Roe v. Wade head-on, as the Rule of Law Life Act does, would be a better approach than a Missouri "laddered" approach?
Before reviewing the following questions about the U.S. Supreme Court’s 2015 ruling in Obergefell v Hodges, it is important to understand these seven (7) introductory points. David will go over the major issues concerning the ruling such as common law, federalism, our Tennessee Constitution, and prior Supreme Court rulings.
Most people believe that the Obergefell ruling only had to do with two people of the same sex getting to marry. But many fail to recognize the significance of this ruling in terms of judicial supremacy, federalism, and the separation of powers. We hope that this review will help you better understand what the ruling did and did not do.
Article VII, Section 1 of the Tennessee Constitution says that a county clerk’s duties “shall be prescribed by the General Assembly.” No state or federal court has ever enjoined the enforcement of this provision; it was not at issue in Obergefell.
Pursuant to the Tennessee Constitution, the Legislature authorized county clerks to issue marriage licenses to "male and female contracting parties.” The legislature has never amended the law to eliminate the words “male and female.” Yet because of the Obergefell ruling, county clerks have been issuing marriage licenses to same-sex couples anyway.
Who legally authorized county clerks to issue marriage licenses to persons other than “a male and female?" Does the judicial power allow the United States Supreme Court in a lawsuit that did not even include a county clerk as a party to order a county clerk to issue a marriage license that he or she has never been authorized by the General Assembly to issue?
Answers to these questions depend on one’s views regarding the separation of powers, federalism, and the nature of the judicial power.
Do you agree with FACT that the federal judicial power cannot order state officials to do that which he or she has never been authorized by state law to do?
Those who believe in judicial supremacy suppose that the judicial power of the United States Supreme Court allows its opinions to impose its own interpretation of state statutes on a state. In other words, instead of simply holding a statute unconstitutional (which it certainly has the power to do), the opinion of the Supreme Court explaining its judgment can create a de facto amendment to a state statute without the necessity of any action by the state legislature or a state court.
Do you agree with FACT and others that federalism prohibits the Supreme Court from telling states how they must interpret their own statutes after and in light of one of its rulings?
The U.S. Supreme Court has never held that states are required by the U.S. Constitution to license marriages or that the only way to marry in our country is by means of a government-issued license. In fact, in another U.S. Supreme Court decision, Meister v. Moore, the Court said that a man and woman could marry without a license because the common law recognized that the right to marry existed before civil governments ever started licensing marriages. The Court said the right of a man and woman to marry was not “conferred” on a man and woman by the government.
Because the right of a man and woman to marry is God-given, pre-political, and not be based on a government-issued permission slip (license), FACT believes Tennessee can repeal is licensing statutes and allow a man and woman who privately choose to marry to file a record with the county clerk giving the public notice of the fact they have married. FACT and others believe this does not violate the holding in Obergefell because it does not involve any "licensing" activity by the government.
Do you agree with FACT and others that the legislature should not ignore this provision in Tennessee’s Constitution, should repeal the state’s marriage license law, and allow a man and woman to marry and record the fact of their marriage with the county clerk?
Last year, President Trump, by executive order, authorized governors to certify to the federal government by a certain date their interest in opting into the federal refugee resettlement program. Governor Lee decided to do so.
However, the General Assembly had previously rejected any involvement in the refugee resettlement program and sued the federal government because the federal program effectively obligated (commandeered) the state to appropriate state funds for government services to refugees.
The Tennessee Constitution delegates control over decisions and authority for setting the budge to the General Assembly. Does the President have the power to authorize a governor to act contrary to his or her state constitution, or state legislature? If a President seeks to provide that power, should a governor still comply with Tennessee’s Constitutional provisions regarding the separation of powers?