from the Congress Action newsletter

Almighty Judges

by: Kim Weissman
February 29, 2004

The crisis now facing our constitutional republic is not
what any given decision is, but who gets to make it?

San Francisco’s mayor decided that the equal protection provision of the California Constitution overrules state law defining marriage as between a man and a woman, deciding that the law is unconstitutional. So he has begun handing out marriage licenses to gay couples. State judges refuse to stop the process, but if a judge rules that the gay marriage licenses are illegal, what will the mayor do? In Massachusetts, judges have decided that their job includes legislating, and they have instructed the Legislative branch what legislation it must enact.

A group of individuals has decided that the First Amendment of the Bill of Rights overrules campaign finance laws that limit free speech, and they have begun to collect whatever money they can to run whatever campaign ads they want whenever they want. They believe that the Bipartisan Campaign Reform Act is an unconstitutional theft of the people’s freedom, no matter what the U.S. Supreme Court says, and thus the BCRA can and should be ignored.

A State legislature has decided that the Second Amendment of the Bill of Rights overrules state and federal gun control laws, and they have authorized gun shops in their state to sell their products to whomever shows up, without requiring any background checks and regardless of whether or not the buyer has a firearms license.

A State judge has ruled that the Fifth Amendment of the Bill of Rights overrules state eminent domain laws that allow the taking of private property without just compensation, and has ordered that deeds be issued for every parcel of property confiscated by the state, returning them to their rightful private owners. The judge has also ordered state officials to issue building permits for all construction sought by private property owners on their own land, without environmental impact studies and without concern for allegedly endangered species that might be on the properties.

A State governor has announced that he believed the Founders of our nation were serious when they ratified the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The governor then released a huge list of federal mandates and laws which he declared to be illegitimate and unlawful because they exceed the powers delegated to the congress. He believes these laws and mandates are nullities, and his state will henceforth ignore them.

OK – the last four examples are fictitious. No citizens have decided that the First Amendment overrules campaign finance laws; no legislature decided that the Second Amendment overrules gun control laws; no judge has ruled that the Fifth Amendment overrules eminent domain laws; and no governor has announced that the rights reserved to the States and the people are superior to the powers usurped by the federal government.

But if those latter four examples were real, if those activities actually were taking place, the same leftists who now cheer the San Francisco marriage license circus would be screeching hysterically against the unhampered exercise of free speech, the unregulated sales of firearms, the end to their property confiscation schemes, the disregard of allegedly endangered species, and the presumption of States and citizens who dared to think that the federal government could not do anything that federal politicians and judges feel like doing. And if any of those fictitious “cases” arrived on the bench of federal courts, those judges would probably rule in contradictory ways based on their reading of the constitutional provisions and the laws involved; and also on their personal predilections concerning the issues. And when those “cases” made their way to the Supreme Court, the decision of those justices would be treated as final, incontrovertible, and unchallengeable.

But are they? Are the decisions of federal judges The Final Answers to any issue? Would we accept an Executive who could dictate policy that is final, incontrovertible, and could not be challenged? That would make the president into a king, would it not? Would we accept a Legislature that could dictate policy that is final, incontrovertible, and could not be challenged? That would make the congress into an elite corps equivalent to medieval nobles, would it not? If we would not tolerate an omnipotent Executive or an omnipotent Legislature, why are we willing to tolerate an omnipotent Judiciary? Wasn’t our government created with three co-equal branches, and isn’t the ultimate political power in our federal system of government supposed to reside with the People and the States, not with the federal government?

For all the importance of the rule of law in a civilized society, it is just possible that the mayor of San Francisco has done this nation a valuable service, if his actions stimulate a reasoned debate in this country about the proper role of government in society; the proper role of federal judges in relation to the other branches of the federal government and in relation to the States; and especially the proper role of judges in relation to the ultimate source of political power and authority in our constitutional republic – the People. Are federal judges – unelected by the people, installed in their posts for life and thus unaccountable for their decisions – the omnipotent rulers of the People of the United States?

Put it another way: Can we believe, does it really make sense, that the Founders of this nation, those who drafted our Constitution, and the generation of people who ratified our Constitution, with the memory still fresh in their minds of a bitter seven year war for independence from unelected and unaccountable British government officials, deliberately empowered another group of unelected and unaccountable government officials – the newly-created American federal judiciary – to rule over the American people as masters and to dictate to the sovereign States as lords? The crisis now facing our constitutional republic is not what any given decision is, but who gets to make it?

In 1789 James Madison said,

“I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial; but I beg to know upon what principle it can be contended that any one department [branch] draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments.”

Ten years later, in his report to the Virginia House of Delegates on the Virginia Resolution, Madison said,

“However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties [the States] to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in the usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”

In 1803, in the case of Marbury v. Madison, the United States Supreme Court decided that it and it alone was the final, ultimate, and unchallengeable arbiter of the meaning of the Constitution. One year later, Thomas Jefferson wrote,

“…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.”

This was a theme Jefferson returned to again and again. In 1819 he wrote,

“Each of the three departments has equally the right to decide for itself what is its duty under the Constitution without regard to what the others may have decided for themselves under a similar question.”

In 1820,

“To consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. …their power [is] the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided…its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. … When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough.”

In 1821 Jefferson wrote, “It is a misnomer to call a government republican in which a branch of the supreme power [the judiciary] is independent of the nation.” In 1823 Jefferson wrote,

“But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs.”

In 1832, in vetoing legislation that he deemed unconstitutional, President Andrew Jackson said,

“Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve [emphasis added].”

On that last point, that same year Jackson, in response to a Supreme Court ruling with which he disagreed, reportedly said (there’s a dispute whether he actually said it), “[Chief Justice] John Marshall has made his decision, now let him enforce it.” Apparently, the force of the Court’s reasoning didn’t impress Jackson.

But Madison, Jefferson, Jackson, and political philosophers and analysts of the American political structure who came after, have been ignored. We are at the dangerous pass in which we, the People and the States, have allowed our federal government to define the extent of its own powers, unlimited by any restraints contained in the Constitution. We have allowed one branch of our government, the Judiciary, to define the meaning of the Constitution, thus to define the meaning of those limits which are contained in the Constitution. And since the federal judiciary is an arm of the federal government, isn’t it likely – and haven’t we witnessed precisely this – to side with the federal government, and against the People and the States, on questions of the extent of federal authority over both the People and the States?

As a nation, we’ve been here before, when the States (Madison’s and Jefferson’s “parties to the constitutional compact”) tried to reign in the power of the federal government: when James Madison wrote the Virginia Resolution in 1798 and Thomas Jefferson wrote the Kentucky Resolution in 1799, both to nullify the Alien and Sedition Acts of 1798; and when John C. Calhoun wrote the South Carolina Exposition and Protest in 1828 to nullify tariffs that impacted the South disproportionately. These three instances asserted the right of States to nullify any unconstitutional acts of the federal government. Calhoun’s States Rights arguments led to the Civil War, and since States Rights (wrongly) came to stand solely for slavery, when the South lost that seemed to put an end to States Rights. But the federal government continues to expand its power, and individual liberty continues to yield; and the question remains: Who gets to decide?


Virginia Resolution:

Kentucky Resolution:

James Madison’s Report to the Virginia House of Delegates on the Virginia Resolution:

The above article is the property of Kim Weissman, and is reprinted with his permission.
Contact him prior to reproducing.

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3 mar 2004