THE BLOG
10/31/2014 05:35 pm ET Updated Dec 31, 2014

Silence in the Court! Why the Supreme Court Often Says Nothing

Don't get mad at the recent Supreme Court failure to rule on cases you and many other Americans consider critical. Of 8,000 cases that go to the court each year, the justices only hear about 75 -- and never say why. But the justices are not shirking their responsibilities; they've simply reread the Constitution and found not a mention in it of anything to do with the cases in question.

What the justices are saying (or not saying) is that the case is none of their business -- and they are usually right.

What many Americans often forget is that the Constitution has less to do with their rights than the rights of government. It is not a code of conduct for citizens; it is a code of conduct for government -- a blueprint that outlines the powers that "we the people" conferred on our officials and what they can and cannot do.

Although the Constitution begins, "We the People," those three words never again appear in the historic document our Founding Fathers wrote in Philadelphia in 1787. What they said was that the people of the United States, "in order to form a more perfect union," were creating a new central, federal government with specific branches (executive, legislative and judicial) and powers (conduct of foreign affairs, raising military forces, declaring war, printing money, regulating commerce, etc.).

The Constitution doesn't say much about limiting or controlling the behavior of the American people. It doesn't mention sex; it doesn't mention God; it doesn't mention murder, assault, burglary or most crimes. Amendments to the Constitution do mention religion, speech and a number of other activities -- but only to tell the government to mind its own business and not to interfere. It prohibits the government from passing any laws restricting speech or the press or the practice of religion. It prohibits the government from establishing a religion but, again, not the people.

In other words, the Constitution governs the conduct of the nation's government, not the people. Indeed, in one of the first major cases in Supreme Court history, John Marshall, the Chief Justice at the time, declared a law passed by Congress to be unconstitutional and, therefore, void -- or, as they put it then, "no law."

After he took office in 1801, Marshall became the longest serving chief justice, issuing nearly 1,200 decisions in his nearly thirty-five years on the High Court and writing nearly half himself. Those decisions struck American government officials like thunderbolts from on high, with Marshall, sitting on the High Court bench like Moses on the Mount, ordaining what government shall and shall not do according to his interpretation of the Constitution. John Marshall's historic decisions stood -- and continue to stand -- as the core of the American people's legal bulwark against tyranny by the executive and legislative branches of government at all levels.

In one of the first of his many legal thunderbolts -- a case called Marbury v. Madison -- John Marshall declared President Jefferson and Secretary of State James Madison citizens like all other Americans and subject to the law. In that same decision, Marshall declared a law passed by Congress to be unconstitutional, applying the principle of "judicial review" for first time in American history.

Since then, almost every Congress and state legislature has passed laws that tried to deprive citizens of their rights. John Marshall's principle of judicial review has allowed the Supreme Court to annul such laws by declaring them "repugnant to the Constitution."

Judicial review, however, is a two-way principle that also lets the Court refuse to review a case -- and the decision not to rule is often as powerful as an actual ruling. Indeed, the Tenth Amendment -- the last of the ten amendments we call the Bill of Rights -- is quite clear: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states...or to the people.

The Constitution does not delegate powers to the United States to control most personal behavior of individuals. Those powers are reserved to the states and the people -- which is why the Supreme Court often refuses to rule in many cases involving state laws -- regardless of how unfair those laws may seem to some. If a law is not prohibited by the Constitution -- for example, a law permitting gambling -- a state and its citizens have a right to pass it, and those who object must either abide by the law or move to another state. The Supreme Court cannot, will not and should not interfere.

Harlow Giles Unger is the author of more than twenty books on America's Founding Fathers, the most recent being John Marshall: The Chief Justice Who Saved the Nation, published by Da Capo Press, a member of the Perseus Books Group.