‘How the Court Became Supreme’: Author and Professor Paul Moreno Discusses the ‘Undue Centralization of the American Constitutional System’

‘How the Court Became Supreme’: Author and Professor Paul Moreno Discusses the ‘Undue Centralization of the American Constitutional System’

Live from Music Row, Monday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. – host Leahy welcomed Hillsdale professor of history and author of the new book How the Court Became Supreme to the newsmaker line to discuss his book, including important instances that have contributed to the undue centralization of the American constitutional system.

Leahy: We welcome to our newsmaker line right now, Professor Paul Moreno. He’s a professor of history at Hillsdale and the dean of social sciences. He has a new book, How the Court Became Supreme: The Origins of American Juristocracy. Professor Moreno, thanks so much for joining us today.

Moreno: Thank you for having me.

Leahy: What’s your complaint against the judiciary? By the way, I’m going to join you in the complaint, but what’s your complaint?

Moreno: (Chuckles) Mostly that it’s not playing its proper role in the constitutional system. Instead of being supreme over the judicial branch as the Founders intended it, it’s become supreme over the states, over the Congress, and over the executive.

So they more or less turn themselves into the sovereign. And in 1958, they made a claim that the Constitution says that the Constitution laws are made in pursuance thereof, and treaties are the supreme law of the land. And in 1958 the Court said our decisions are also the supreme law of the land. So that’s a reality.

Leahy: You know, I’m kind of a buff of the Constitution. We’ve got a little competition for high school kids, the National Constitution Bee, which we’ve done for six years.

And we give away scholarships to the top students in the country who study a little book that we wrote called The Guide to the Constitution and Bill of Rights for Secondary School Students. I was not familiar with that 1958 decision. Tell us a little bit about that.

Moreno: It was in the aftermath of Brown versus Board of Education. The Court said that segregation in public schools was unconstitutional. And that’s really what gave the Court the kind of sort of moral legitimacy that it’s had ever since then, that they did the right thing about race relations in America.

And that particular case, Cooper against Aaron, came out of the attempt to desegregate the Little Rock, Arkansas high school, a very famous incident where Eisenhower had to send in the National Guard. And it was a very sort of dramatic moment in the history of the civil rights movement.

And so people didn’t notice what the Court said about itself in that decision because it was sort of overshadowed by the drama, sort of the righteous drama of the desegregation movement.

Leahy: But I guess it’s a precedent now that the Court has followed for what, 50, 60-odd years now, right?

Moreno: Yes. That’s one of the problems is, until the last term of the Supreme Court, where obviously liberals are very upset now that you have a clear conservative majority on the Court, that the American people more or less came to accept that the Constitution is what the Court says it is.

Leahy: Are there ways to push back against this judicial primacy that we’re seeing these days?

Moreno: Absolutely. The first thing that liberals started talking about was old-fashioned court-packing and expanding the size of the Court. That’s been done before. FDR proposed to do that in the 1930s, and it really destroyed his presidency.

But there are a lot of other ways in which you can control the Court. If you read Article Three, Section Two of the Constitution, congress can change the Court’s jurisdiction, especially the kinds of cases that the Supreme Court can hear on an appeal.

So there are – and then, of course, the removal of judges by impeachment. That’s only been tried once back in 1805, and it failed. So there are a lot of rules …

Leahy: But the removal for impeachment must be for a cause. Must be for a cause. It can’t be we don’t like your decision.

Moreno: Because it happens so infrequently and it’s a good thing that happens so infrequently. Yes, most people do accept the view that impeachment has to be for crimes, something that you’d be indictable for outside of sort of just a political setting.

But there have always been people who argued that, no, it could be for policy reasons. There were some Jeffersonian Republicans who called for exactly that …

Leahy: Do you see that in the Constitution? I don’t see that in the Constitution.

Moreno: But the language says treason, bribery, or other high crimes and misdemeanors.

Leahy: But a decision itself isn’t a high crime or misdemeanor, even if you disagree with it. Right?

Moreno: Yes. If you interpret crimes and misdemeanors as being like treason, bribery, or theft, or ordinary crimes. Gerald Ford when he was in the House of Representatives, and he was leading an effort to impeach Justice William O. Douglas, who hadn’t done anything, probably not anything in ordinary criminal terms, but Ford said impeachable offense is whatever the majority of the House Representatives says it is.

I think you’ve seen that in the presidential context with Trump’s impeachments as well. So you’re right, it’s a minority view, but there’s always been that alternative. But Article Three says that the judges will hold their offices during good behavior.

So there’s an argument that good behavior means something short of impeachable, that impeachment is yet for criminal cases, but good behavior could mean, again, not behaving in an appropriately judicial way, usurping legislative function.

Leahy: Crom Carmichael is in the studio and he has a question for you.

Carmichael: I’m going to agree with the professor here, because before a judge takes office, they take an oath of office to uphold the Constitution. If they abuse the Constitution, then that could be considered an impeachable offense, and the people who are considering it are the ones who determine whether it is or not.

Leahy: And so that’s back to your argument, the Gerald Ford argument, Professor Moreno?

Moreno: Yes, and as a practical matter, again, because impeachment happens so infrequently, every time it comes up we’re almost starting from scratch, and this question of what is an impeachable offense arises anew.

To Bill Clinton, technically, the charges were sort of perjury, but most people knew that it was really about his disgraceful behavior, sort of unbecoming of the office of the president.

Leahy: Is there a role for state attorney general here?

Moreno: That’s a very interesting question, because the Court’s power has also come about with changes in the American legal system and American legal education that are really important.

And the fact that many states have elected attorneys general who are separate from the governors, that’s really, I think, a very dysfunctional system. I think that the federal system where the attorney general is under the control of a unitary executive is much preferable.

So here you have rogue attorney generals who are going off sort of pursuing their own political agendas rather than enforcing the law.

Leahy: But aren’t those attorneys general representing the states in the federalist system?

Moreno: Yes, but usually very often the ways that the states have been complicit in undermining the federal system is another part of the story. The Supreme Court back in the 19th century, most of what the Court did, especially under John Marshall, was sort of defend the federal system and maintain the balance between the federal government and the states.

But the states have largely been subordinated to the federal government, mostly by offering money with strings attached through the federal – the so-called federal – spending power. So states themselves have contributed to the undue centralization of the American constitutional system.

Listen to today’s show highlights, including this interview:

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Tune in weekdays from 5:00 – 8:00 a.m. to The Tennessee Star Reporwith Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.
Photo “Paul Moreno” by Hillsdale College. Background “United States Supreme Court” by Senate Democrats. CC BY 2.0.

Tennessee State Rep. Chris Todd Talks About the Probability of His Bill Passing Calling for Term Limits in the U.S. Congress

Tennessee State Rep. Chris Todd Talks About the Probability of His Bill Passing Calling for Term Limits in the U.S. Congress


Live from Music Row Thursday morning on The Tennessee Star Report with Michael Patrick Leahy – broadcast on Nashville’s Talk Radio 98.3 and 1510 WLAC weekdays from 5:00 a.m. to 8:00 a.m. –  host Leahy welcomed Tennessee State Representative (R), Chris Todd of Jackson, to the studio to talk about a bill he is currently sponsoring that would instill term limits to the U.S. Congress via the Constitution’s Article Five Convention.

Leahy: We’re talking in studio with our good friend, State Representative Chris Todd. Chris, we’re talking about where we’ve taken a bill to the point where you’re on the floor of the House, and the bill that you use sponsored is about to be voted on. Obviously, an important day for you. What happens when you had one bill just recently.

Todd: This Monday night, a number one on the docket. And a couple of weeks ago, I actually rolled this bill for two weeks. I was the first on the docket.

Leahy: When you say rolled this bill, tell us what you mean.

Todd: I requested to re-calendar it a couple of weeks later.

Leahy: There you go.

Todd: So I felt like I might not have the votes on the floor. And so I wanted to work at some more. And I had several folks helping me because this was the one that called for term limits on Congress. It had actually requested Congress to set a time in a place for an Article Five Convention of the states to discuss amendments to the U.S. Constitution involving term limits only.

Leahy: Specifically limited to term limits.

Todd: Yes.

Leahy: Now, of course, everybody, a lot of people support term limits, but not everybody is a big fan of the Article Five Convention, correct. It’s in the Constitution. It’s never been used, but it’s right there in the Constitution.

Todd: Yes. James Madison wrote it in knowing that there would be a day when Congress would not respond to the people and the state should have a mechanism for amending the Constitution. So that’s all this did. It was a resolution so it wasn’t passing a law or anything.

Leahy: So you’re number one up.

Todd: Monday night.

Leahy: So everybody’s sitting in their seat?

Todd: Well partially. There’s a lot of milling around it.

Leahy: They’re on the floor either milling around?

Todd: Yes, like the ones that like myself that have a bill up we’re still going around and getting support. We’re talking to folks about. Hey, are you still good with me? Do you know of anything I need to do or whatever? You’re still working the bills as much as you can.

Leahy: There are 99 members of the House of Representatives. You need 50 votes to get it passed in the House.

Todd: Yes. So I spent 30 minutes in the well. That’s at the podium.

Leahy: When you say in the well, describe the Chamber because there’s, like every 99 seats out in the Chamber. But where is the well and what are you supposed to do there?

Todd: So it’s a big room. You have a gallery on each side, which is a balcony area where visitors and staff can sit and watch and observe. The Speaker is at the head of the room up on a podium. And the well, the podium where the members would speak is down on the floor in front of that. So you’re called upon, there’s a motion made a second to hear your bill, and then you’re able to describe it. And you have the certain legal language you have to say to start with to get it in the proper form. And then you can talk about your bill and actually tell what it does, and then you renew your motion and you wait for questions.

Leahy: Ah ha!

Todd: Sometimes there are questions and sometimes there are not.

Leahy: So tell us about this. So you go and you talk about your bill, what happened?

Todd: So when the Speaker then says, are there any discussions on the bill and he will call on individual members to stand and speak and they address the chair. Mr. Speaker, I’d like to know about this particular bill. I’ve got a comment or a question about the bill. And then when they’re finished, he will call on me again as the sponsor of the bill to respond to that.

You don’t have to respond. You can just say I renew my motion or you can have an explanation of why that comment is accurate or inaccurate. And then it goes to someone else. As long as people stand up and want to speak or comment or question your bill that goes on up to a certain point.

Leahy: I hear you had a couple of lively questions.

Todd: I had several lively questions and several just lively comments.

Leahy: And even from friends.

Todd: Oh, it was absolutely there were friends.

Leahy: That disagree with you on this bill.

Todd: Staunch conservatives that are a couple of those and Democrats as well that spoke against it that gave their opinion about it. And then I would try to refute their comments and show how, in the historical record, they were inaccurate. I pulled up quotes of my founders and all kinds of things that I had at my disposal there.

Leahy: So they don’t say like you are an absolute idiot for proposing this bill. They say, my good friend, there is an error on this.

Todd: Exactly.

Leahy: And then when you respond, you don’t say you are absolutely a crazy person, right?

Todd: No.

Leahy: You say my good friend.

Todd: Yes.

Leahy: Even though you may be, I don’t know what you’re thinking, but if it were me, I would say my good friend. But I might be thinking something different.

Todd: It’s difficult. You have to have a lot of control because sometimes things get a little heated, but we still have to practice decorum. We still have to practice respect. And that is critical to things on the House floor. And so I spent 30 minutes doing that back and forth, back and forth. And then one member who was actually on the other side of the aisle stood up and called for the previous questions.

Leahy: That means they’re going to vote on it.

Todd: That is a motion that can be voted on to stop debate and vote on it.

Leahy: Stop debate.

Todd: If there’s no objection to previous question, then we go to vote on it.

Leahy: So what happened?

Todd: No one opposed it because everybody was tired of listening to this.

Leahy: Okay. So then what happens?

Todd: They call for a vote.

Leahy: Who calls for a vote?

Todd: The Speaker calls for the vote.

Leahy: Cameron Sexton. So he calls for the vote. What happens then?

Todd: Then the board starts lighting up. There’s a board on each side of the room of the chamber.

Leahy: So do you go back to your seat and press a button?

Todd: I walk back to my seat. Now, usually, our clerk will place your vote for you. If you’re presenting a bill, he knows you’re for the bill so that before you even get back to your seat. Because none of the seats are quite a ways off if you are sitting in the back of the room.

Leahy: Are there, red buttons or green buttons? What buttons do you Press?

Todd: So the green button would be an aye. A red button would be a no. A blue button is present, not voting. It’s like a roll call vote. And it says I’m here but I’m not voting on this. It’s kind of a no with a hug is what some people would call it.

Leahy: So how long does this roll call take place?

Todd: Literally seconds.

Leahy: Second?

Todd: Maybe 10 or 15 seconds.

Leahy: Okay, so there you are and you’re thinking, is this thing gonna pass? Did you kind of know what the final vote would be?

Todd: I knew what our prediction was.

Leahy: What was your prediction?

Todd: We had commitments in the mid 50?

Leahy: And what was the final vote?

Todd: And we had five members that were supportive. We felt like we’re supported that were out that were absent. So it ended up 53 to 34.

Leahy: So it passed?

Todd: Yes, it passed.

Leahy: Now what happens?

Todd: Then the Senate has to pass the same thing.

Leahy: Did you messenger it to the Senate?

Todd: Well, that particular one I think it will go to them as a message and then they can accept that and go through their process. They’ve already had something running on that. But I’m not sure exactly how far it’s gone.

Leahy: So the odds that this becomes a law?

Todd: It’s a resolution that would be sent to Congress.

Leahy: All they have to do is they have to sign it.

Todd: Yes.

Leahy: What are the odds that Senate?

Todd: I think it’s decent. It depends on what the committee gets to.

Listen to the full second hour here:

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Tune in weekdays from 5:00 – 8:00 a.m. to The Tennessee Star Report with Michael Patrick Leahy on Talk Radio 98.3 FM WLAC 1510. Listen online at iHeart Radio.