This article by Jane Anne Morris (DemocracyThemePark.org) was originally published in the Spring 2010 edition of Justice Rising (Alliance for Democracy).

How is it unconstitutional for a state to require place-of-origin labels on meat? Regulate sale of its water? Establish worker protections stricter than federal standards? Where does the US Constitution say that states cannot require that toxic waste be sorted and labeled? Cannot include labor standards in state purchasing policy? Cannot make companies disclose what chemicals they use in products and facilities?

The Constitution is silent on these matters, but the Supreme Court has interpreted the Constitution all the way to next Tuesday in order to declare these measures unconstitutional. Supreme Court interpretation devised concepts like free speech rights for corporations, and that workhorse, money equals speech, to hobble election reform. Judicial interpretation enables corporations to use the Civil Rights Act to claim damages for being “discriminated” against. Supreme Court interpretation dished out rights, powers, and protections for corporations while repeatedly denying same to minorities, women, and workers.

Constitutional scholars routinely describe the Court as the most powerful court in the history of the world. In addition to its untrammeled interpretive latitude, that singular institution wields a bundle of powers. It decides cases, rules on the constitutionality of acts of the executive branch, determines the distribution of powers between state and federal government, and judges the constitutionality of any law passed at any level of government. It can “call up” any court’s ruling if it disagrees. Justices scan the nation’s laws, and using easily rigged “test” cases, void any law not to their liking.

This power does not come from the Constitution, which, apart from a few matters (like ambassadors and Indian tribes), specifies very little about the Supreme Court. The vast powers and maxed-out discretion exercised by the Court come from the US Congress. A series of Judiciary Acts (1790, 1875, 1925, and 1988) sketch (and stretch) the dimensions of its power.

So if you are concerned that corporations have most of the constitutional rights of human persons, or that numerous “green” state and local laws are thrown out as unconstitutional, then the true object of your discontent is neither the Constitution, nor the Supreme Court, but Congress. …

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