The writ of the Supreme Court is not Holy Scripture. Supreme Court Justices cannot claim infallibility when speaking ex cathedra from the bench. These much-esteemed pontiffs of the Judicial branch do not hold the sole power to bind and loose the duly-passed and duly-enacted laws of the nation. Why, then, does political convention mandate such obsequious homage to the rulings of the Supreme Court?

The Federal Judiciary and its Supreme head is not the rock upon which the United States' governing edifice is erected: its authority, from the larger constitutional perspective, is not Supreme but complementary. It is merely the Advocate of the American government; its role of adjudication necessary and vital, but still subsidiary to the more active powers of legislation and enactment, the respective purviews of the Legislative and Executive.

Yet, it comes as no surprise that those devout adherents to the Church of Judicial Supremacy would revile as heretics the iconoclastic legislature of South Dakota. These Lollards of the Great Plains have daringly appealed to a Higher Law than the sentences of six unelected, surly jurists—the Constitution. The Supreme Court cannot, with incontrovertible justification, monopolize the interpretation of constitutionality and its subsequent bestowal upon certain statutes. In a well-constituted America, the Supreme Court would be the arbiter of actual controversies between the state and federal or between individuals, and not assume, as it has in recent years, the ability to generate and resolve perceived constitutional crises by virtue of its own volition. With its statewide ban on abortion, the South Dakota legislature has raised the standard of originalist constitutional purity against the legal decadence that has attained ascendancy in the courts over the last half of the century. The stakes are high, the mission clear, the cause just. Let the schism begin.

Without recapitulating a third-grade civics lesson, it is important to remember that the federal government is composed of three distinct branches—Legislative, Executive, and Judicial—with three distinct authorities—to legislate, execute, and interpret the laws. Each individual sector wields certain powers—vetoes, impeachment, judicial review—that constitute the legendary 'checks and balances,' the hackneyed political model impressed upon most citizens at an early age. In order to adjudicate disputes, there first must be laws in place from which such cases must arise. Consequently, the Supreme Court's seemingly boundless power actually follows from the authority of its two sister branches, who, by definition, must be more powerful. Without the assertion of the Legislative and Executive authority, there can be no Judicial authority: the structure of our federal government inevitably positions the Supreme Court in a subordinate role.

Even conceding its more auxiliary, if still potent, authority vis-a-vis the other branches of the federal government, the Supreme Court's opinion still holds sway over state law. The consequence of states' blatant flouting of Supreme Court decisions would certainly be anarchy within the Union. Say, if Massachusetts were to ban free speech, throw the editors of the Boston Globe in prison, and suspend habeas corpus, it is imperative that the Supreme Court intervene, declaring such flagrant violations of the Constitution null and void. States, just like the federal government, must be held in check, their powers meted out and subsequently circumscribed by our Constitution.

If, however, the executives or legislatures of Washington or various state capitals can potentially overstep their authorities and infringe on our inalienable rights, then we must look with similar caution and skepticism toward the power of the courts. Lacking the constituent powers of coercion and force, the Constitution is merely words on paper. The question is not if but how those powers ought to be instituted and in what governmental structures they ought to reside. If judicial review ensures that statutes are consonant with letter and spirit with the Constitution, how, then ought the Supreme Court be held within its own Constitutional bounds?

The venerable document itself appears to answer that quandary by providing for an amendment process that can override, after achieving the proscribed prerequisites, even the most agreeable judicial ruling. With the barricade of Roe still imperiously impeding the policy-making progress of pro-life conservatives, the only manifest loophole is a new amendment and the accompanying ratification onus, or the gradual realignment of the judiciary itself, a long-term strategy whose pitfalls—a la David Souter—are all too treacherous.

There is a third way, however: Roe is not a wall of brick, but a house of cards, teetering ever so precariously on a flimsy precipice anchored by the unconvincing logic of "penumbrae" and "emanations." Adjudication in general and constitutional interpretation in particular is not a fishing expedition for technical vagaries in the letter of law, but a holistic attempt at understanding the reasoning, intent, and implication of the law as the legislature originally wrote it. By submitting to the notion that law is organic, that its meaning adjusts to account for the Zeitgeist is to surrender to the vile tyranny of the invisible, to ineluctably bind yourself to laws that will change, without your notification or approval, upon the shift in fancy of any judge currently sitting or even those who have yet to be installed. Under a "living Constitution," the Supreme Court becomes not only the predominant organ of government, but the omnipotent: it is able, with the fell of the gavel to erase and recreate the law at whim, not obligated to recognize any limit to the sway of its interpretation.

Debate and discussion, guided by such noble organizations as the Federalist Society, seeking to expose judicial activism and organic constitutionalism for the fallacy that they are, certainly plays a central role in taming our feral judiciary. However, more direct action is not only possible but imperative. The abortion ban in South Dakota is a positive first step to take in what will be a very trying crusade. The only truly efficacious way to stand up to the tide of judicial imperialism is for other branches of the government to reassert their role of assessing constitutionality of statutes, a power that the Supreme Court only ought to wield when arbitrating dissenting views on the matter: that is why the President does not submit a bill after signing it for the approbation of John Roberts and his robed ilk.

As Congress will not take up that controversial standard and blaze the brave trail, then the movement must begin at the grassroots—in the Black Hills of South Dakota. The Constitution is not the exclusive territory of the courts: it is the skeleton of our government and the sinews of our laws, it is the bulwark of our precious, yet few inalienable rights of such inestimable value they are insulated from the encroachment of dictator or jurist alike.

Much has yet to be made of South Dakota's audacious statement, would-be critics apparently comfortable with its incompatibility with Roe and thus its patent invalidity. Yet, if the Supreme Court intervenes, strikes the law down, and continues in its Constitution-blind fatuousness, there still remains a constitutional safeguard to maintain the abortion ban, if President Bush is willing to stay neutral. The most potent weapon of the courts is its pen: the Supreme Court cannot marshal the National Guard or the DC police department to implement its majority opinion. No, rather, there is a check and a balance—the President must execute the ruling, just as he must execute legislation, for it to become effectual. And if their ruling is so manifestly unconstitutional, the President would be well advised to look the other way.

As President Andrew Jackson haughtily remarked, after the Supreme Court did not rule in his favor in Worcester v. Georgia, "John Marshall has made his decision; now let him enforce it!" Progress is being made in South Dakota; we ought not halt it because of some mealy-mouthed—and unconstitutional—legal pretensions foisted upon us some thirty years ago.