By Terry Baker

“John Marshall has made his decision, now let him enforce it.”

There is some question as to whether or not Andrew Jackson ever really said the famous quote attributed to him after the Court ruled in 1832 that the state of Georgia had no authority over the Cherokee Indians, whose laws the state had declared null and void.

To complicate the issue, the Marshall Court had ruled the previous year that the Cherokees were not a sovereign nation. Marshall was at least consistent in his opinion that only the federal government had the power to deal wickedly with the native tribes. Jackson had sponsored the Indian Removal Act of 1830, and he turned a blind eye to Georgia’s efforts to evict them.

Jackson’s refusal to enforce Worster v. Georgia, the Supreme Court decision that would have the effect of stopping Georgia in its tracks, led ultimately, once Jackson was out of office, to the Trail of Tears in 1838-39. While still in office, Jackson was also struggling, at the very same time, with nullification and threats of secession by the state of South Carolina. He truly was caught between a rock and a hard place.

To bring all this home and update it for a modern reader, the scene next shifts to certain speeches given by Justice Breyer of the U.S. Supreme Court within the last several years. I watched him on CSPAN, and he is witty, urbane, glib, persuasive and thoroughly dangerous. In one speech he went into much greater detail than I have with respect to Jackson, Marshall and the Indians.

He concluded, no doubt with a huge sigh of relief, that Jackson had come to see the error of his ways when nullification and secession reared their ugly heads, threatening to devour the Union that Jackson held sacred. Breyer’s sigh of relief was in fact more shamelessly self-serving than that. A president who refuses to enforce decisions of the Court is the greatest threat to the power of the Court since the Constitution was drafted.

Breyer even admitted that our present system of judicial review was only a tradition. I’ll spare the modern reader the civics lesson by referring those interested in how this tradition originated to Marbury v. Madison, another Marshall innovation.

Breyer gave another interesting speech in the fall of 2001(the James Madison Lecture) at NYU, in which he outlined his theory of how the Constitution should be interpreted. He is more concerned with consequences than with mere legalistic tom-foolery, such as history, language, culture and precedent. If you missed the point, let me make it for him.

Language - The Constitution is written in English, and words have meaning. “Congress” means just that, and not your local school board. The right of the people to keep and bear arms refers to individuals, not to the states, at least if you are guilty of making the naive assumption that the English language can be a guide to interpreting the intent of the Framers.

That leads us to History, and the question of what was that original intent. Breyer doesn’t seemingly want to know.

Tradition is Breyer’s slight at our cultural heritage and all the heavy baggage that entails. Forget English Common Law and it’s Mosaic antecedents; Breyer might rather inquire into how Libya or Syria are trying their human rights cases. (Oh, I forgot, those countries don’t do the human rights thing. Well, Breyer should be able to find some sort of Third World model to use.)

Finally, there is precedent, which to lawyers means that all the case law they study in law school can conveniently be dispensed with.

I’d like to go Breyer one better and suggest a fifth thing to discard in our 21st Century “Rush to Judgment” (sorry, Mark, you can’t copyright a title). Let’s throw out logic as well. After all, logic is what all those messy rules of evidence are based on. Logic is a tool of the Oppressors, so let’s deconstruct the Constitution – in the same way we are deconstructing our culture and its traditions and values.

Now that I’ve sufficiently demonstrated how radical Breyer’s thinking is, let me propose something equally radical. We don’t have to amend the Constitution to do it. We don’t have to appoint “originalist” judges, either. Nor do we need to get behind the grassroots efforts some are engaging in, calling for the impeachment of federal judges. All we need is a lame duck president with only a couple of years left in office.

This president will also have to have a surplus of testicular equipment. What I am proposing is that the president simply veto decisions of the Court, the way Jackson did. That the Framers never envisaged a Supreme Court that has usurped the godlike powers it now has conferred upon itself over the last two centuries, should be obvious to anyone familiar with history. To redress the balance, let the games begin.

“This will precipitate a constitutional crisis!” you may object. I say, “bring it on!” That is exactly what it will take to take back the courts and rein in the runaway judges, who have decided that the Constitution is only what they say it is.

My hypothetical president need only say, when refusing to enforce a bad decision, “A 5-4 decision is not a mandate. When Congress passes a bad law I veto it, and they are then obliged to come back with a super-majority if they wish to override me. Why should it be any different with the Court?”

I’m throwing this out there as the opening salvo in what I hope will be a very lively debate.

Terry Baker is a Nashville-based writer, historian, amateur genealogist and avid defender of the Constitution and the Bill of Rights … the way they were intended to be interpreted: as they were written!