Thom Hartmann: 9 Unelected Kings & Queens is our Biggest Challenge

Here's my take on Thursday's Supreme Court ruling...it never should have happened.

Everything about Thursday, from Fox and CNN screwing up the ruling early on to the hours of punditry that followed to the competing speeches from Mitt Romney and President Obama, none of it should have happened.

None of it should have happened because our democracy settled this issue more than two years ago when after a year of debate our elected Members of Congress passed Obamacare with a majority in both the House and the Senate, and that law was signed by our elected President of the United States.That's how our democracy works. We elect people to write and pass laws, and then we keep electing them or we elect someone else to do the same job. But what happened Thursday was not an exercise in democracy - it was an exercise in monarchy.

Despite our democracy settling this issue, here we all were two years later waiting to hear from the modern day Oracles at Delphi. Our news media, our elected politicians, and the tens of millions of Americans who finally had some reprieve thanks to Obamacare, were forced to wait at the steps of the Supreme Court building where nine unelected justices would, like kings and queens, give their ultimate say about the trivial concerns of the People.

What happened today reveals a deep flaw in our system of government - a flaw that was created more than 200 years ago.

In the early years of our nation the Supreme Court was a very, very boring place. It was, as the Constitution says, simply the final arbiter in legal disputes, which at the time tended to be things like a legal battle between two farmers who were arguing over whose dog ate whose chickens. The idea of the unelected Supreme Court having the power to strike down an entire law passed by an elected Congress and signed by an elected President was unthinkable. The idea that our early Senators and Representatives would have to wait outside the doors of the Supreme Court, like Michele Bachmann and Orrin Hatch did today, waiting for the Justices' ruling on laws they passed out of Congress, was unheard of. After all, nowhere in the Constitution does it say the court has the power to do this. In fact, Article 3, Section 2 says just the opposite. It says the court has to operate under regulations established by Congress.

But in 1803, in the case of Marbury v. Madison, everything changed. That was when the high court assumed the power to strike down laws, and they called it judicial review.Thomas Jefferson was the President at the time and he knew the consequences of this power grab by the Supreme Court. He knew that it effectively turned our democracy into a monarchy – that it stripped power from "we the people" and handed it off to nine kings in black robes.

As Jefferson wrote to John Adams wife in 1804, "The opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch."

And as Jefferson wrote to Virginia Supreme Court Justice and Patrick Henry's father-in-law, Spencer Roane, in 1819, "If the judiciary is the last resort in relation to the other departments of the government...then indeed is our Constitution a complete felo de so (suicide pact)...The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary..." Jefferson knew the job of interpreting the Constitution should be left up to "we the people" by electing representatives every two years who write and pass laws based on their interpretation of the Constitution. If "we the people" don't like how our elected representatives are interpreting the Constitution, then guess what happens? We vote them out of office.

As Jefferson wrote in 1823, still bitter about the Supreme Court's decision twenty years earlier, "This case of Marbury and Madison is continually cited by bench and bar, as if it were settled law...the Chief Justice says, 'there must be an ultimate arbiter somewhere.' True, there must; but…The ultimate arbiter is the people." Today's display on the steps of the Supreme Court was not the America envisioned by our Founders, and particularly not the America envisioned by the author of our Declaration of Independence, Thomas Jefferson. In writing that declaration, Jefferson struck the first major blow against monarchy only to see it creep back into America in the form of the Supreme Court during his own first term as President. And it's still with us today.

Yes, the court probably did the right thing in upholding Obamacare. But as long as they have the power of judicial review – the power to strike down laws passed by "we the people" - then it's just a matter of time before they abuse this power just like they abused it in 2010 when the Roberts court wiped out a century of campaign finance law in Citizens United. Healthcare for all is vital for our nation, but restoring power in the hands of "we the people" and not keeping it concentrated in the hands of nine unelected kings and queens is our biggest challenge.

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