from the Congress Action newsletter

Judicial Supremacy and The Constitution

by: Kim Weissman
April 3, 2005

First, let us understand what the Terri Schiavo matter was not about: Despite ideological diatribes from David Corn at The Nation, this was not “an ugly big-government attempt to intervene in a family conflict” designed to appease “religious right crusaders”. Despite ranting from Robert Scheer, also at The Nation, this was not “egregious political opportunism and shameless trafficking in human misery”, and the citation of dubious polls won’t validate Scheer’s hope that the majority of Americans want to see a helpless woman starved to death by judicial order. And despite hysteria from the Los Angeles Times, this was not “a constitutional coup d’etat” designed to make “social conservatives…happy to see the federal government acquire Stalinist proportions when imposing their morality on the rest of the country.” (Notice how every time the left doesn’t get its way, it must be the result of a “coup d’etat”?)

For the benefit of the apparently historically illiterate at the Los Angeles Times, Stalin was responsible for the deaths of well over 42 million innocent people during his reign over the Soviet Union. The intervention of Congress and the President in the Schiavo matter was intended to save the life of an innocent. And which side of liberal-conservative ideological divide sees abortion as an inviolable procedure, one that has resulted in the deaths of over 30 million innocent unborn babies since it was first invented as a constitutional right (that would be triple the number massacred in Hitler’s death camps, and approaching Stalin’s depredations)?

Nor was this a particularly left-right issue. Jesse Jackson opined that “the feeding tube should be reinstated. This is a very tough emotional, ethical, political issue. But you know she is brain impaired, she is not brain-dead. And right now they‘re starving her to death. They‘re dehydrating her to death, and that raises profound ethical questions. That tube should be reinstated. She is not brain-dead. She‘s brain impaired. It‘s not right to starve her to death. That‘s not right ethically.” Ralph Nader said, “There is no need for her to die.”

The last time we looked, neither Jesse Jackson nor Ralph Nader are “social conservatives” or “religious right crusaders”. Two years ago, 21 disability-rights organizations issued a joint statement asking: “If the legal standard in cases involving termination of life support is reduced to the point where Ms. Schindler-Schiavo's ‘quality of life’ – as determined by others – justifies her death by starvation, then what protections exist for the thousands of us who cannot speak due to disabilities?” Slippery slope?

Nor was the congressional intervention an abuse of power, as it has been portrayed:

U.S. Constitution: Article III, Section 2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution”; “In all the other Cases…the supreme Court shall have appellate Jurisdiction…with such Exceptions, and under such Regulations as the Congress shall make.”

The Schiavo matter did not represent a republican-democrat divide, either – the legislation enacted on March 20 passed in the Senate by Voice Vote without amendment (meaning nobody objected, and also that the members of “the world’s greatest deliberative body” didn’t have the courage to publicize their principles in a recorded vote); and passed the House when 47% of democrats voted “Yea”. That law (S.686) did not mandate reconnection of the feeding tube, but simply directed an evidentiary hearing at which “the [federal] District Court shall [shall, not may] determine de novo [anew] any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination…”. Even The Nation’s Corn admitted that the federal court did not hold such a de novo review; Corn touted the federal court “ruling that there was no evidence that Florida state Judge George Greer…had not appropriately and ably followed Florida law.” Well, as long as the process was correct.

But justice must be about more than just process – to be respected, a system of justice not only has to do justice (is ordering the death of an innocent woman in a manner more barbaric than the law allows for convicted murderers now our standard of justice?), but has to be seen and believed by the people to be doing justice. And justice involves more than just following the rules properly. The Law untempered by moral values will inevitably lead to barbarity – the Soviet Union and Nazi Germany also had justice systems, and the people who ran the gulags and the death camps followed their process and obeyed their Law.

That our justice system has avoided similar mechanistic barbarity (until now) is due to the respect it has always paid to the fundamental morality upon which this nation was founded. It is not by accident that so many of our public buildings contain religious imagery, in tribute to the morality that must underlie compassionate systems of justice:

“We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge or gallantry would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution is designed only for a moral and religious people. It is wholly inadequate for any other.” – President John Adams (address to the military; October 11, 1798).

But we are in the process of cutting our culture, and with it our judicial system, free from the bounds of fundamental morality. Across the country, images of the Ten Commandments are chiseled off our courthouses; the Colorado Supreme Court voided a death penalty because jurors pondered the Bible during deliberations (can’t have any judgmentalism going on when rendering a judgment, can we?); “under God” is excised from our Pledge of Allegiance – we are henceforth to pledge allegiance to one nation “under the Supreme Court” (or perhaps one nation “under the ACLU”); the American Civil Liberties Union is on a crusade to expunge all religion – and with it the morality that flows from religion – from public life. As fundamental, objective morality is replaced with moral relativism, there is no absolute right or wrong. All we have left is process – as long as the rules are followed properly, we’re told we cannot dispute the result, no matter how barbaric or morally repugnant the outcome. And those rules are whatever a majority of nine judges on the Supreme Court say they are (it is named the “Supreme Court”, by the way, not the “Supreme Branch of Government”).

Many writers have explored some of the human issues involved in this tragedy – the savage passion of those who sought Terri Schiavo’s death; the rights of the disabled; the medical disputes about her condition; speculations into the motives of the husband and his lawyer; the ludicrous attempts (David Corn) to charge Bush and conservatives with hypocrisy, by contrasting their desire to spare Schiavo’s life with their support for the death penalty for convicted killers (by pretending there is an equivalence between the death by deliberate starvation of an innocent who has committed no crime, and the execution of a convicted murderer who, with premeditation, has taken another human life, Corn reveals his own intellectual bankruptcy); and the value of life itself.

Commentators have expounded on the benefit of a “living will” so we can “die with dignity”. But has anyone stopped to consider that there may be people who would rather live on life support than “die with dignity”, hoping to benefit from possible future medical breakthroughs; and that the absence of a living will may also be probative of the wishes of an individual so affected? After all, given the doctors’ Hippocratic Oath, wouldn’t it be natural for a person contemplating these issues to believe that the medical profession favors life over death? Isn’t it possible that a person who wants life support might think there is no need for a living will, since doctors, by their oath, would use all means at their disposal to keep her alive, unless a living will tells them otherwise? Isn’t life assumed to be the default position for the medical community?

As worthy as these issues are for extended public debate, this commentary will focus on the narrower constitutional issues. As entrée to that, Andrew Sullivan quoted, with contempt, a William Bennett commentary in National Review, in which Bennett wrote, “It is a mistake to believe that the courts have the ultimate say as to what a constitution means.” This, to Sullivan, represents the view: “Screw the court system. Screw the law.” With comments like that, Sullivan and his compatriots who believe in absolute judicial supremacy demonstrate their own ignorance, and their agenda.

If there is a left-right divide in this case, it lies here – those who insist on judicial supremacy are mostly on the left, because in the last few decades, the left has seen its agenda become reality (for the most part) by having it imposed on the nation by the courts.

But Bennett’s observation simply reiterates the general understanding of those who designed our Constitution, and their contemporaries. The words of James Madison and Alexander Hamilton (delegates to the Constitutional Convention of 1789 and two of the three authors of The Federalist, which is universally accepted as the definitive exposition of the intent of the founders of our government), and Thomas Jefferson, couldn’t be clearer. They established a system of three co-equal branches of government, in which the judiciary does not have the ultimate, final, and unassailable say as to what the Constitution means. That privilege is reserved to the people themselves:

“The ultimate arbiter is the people of the Union…” – Thomas Jefferson

“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 draws from the Constitution greater powers than another…”. – James Madison

“In a government whose vital principle is responsibility, it never will be allowed that the Legislative and Executive Departments should be completely subjected to the Judiciary, in which that characteristic feature is so faintly seen.” – James Madison

“A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. …the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both…”. – Alexander Hamilton

Unfortunately for our constitutional system, the judiciary has usurped the role as the final arbiter of all constitutional questions. That is not what the Founders intended, as Jefferson wrote:

“Nothing in the Constitution has given [judges] a right to decide for the Executive, more than to the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them”; “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy”; “I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison [the 1803 Supreme Court case establishing judicial supremacy] brought before the public, and denounced as not law…”; “At the establishment of our Constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous...”.

So what could have been done, within the law and the Constitution, in the matter of Terri Schiavo? On the state level, if the Governor of Florida believed that his state’s courts had not fulfilled their constitutional obligations, then he had not only the right, but the duty, to himself vindicate the Florida State Constitution that he swore to uphold:

Section 2.  Basic rights: “All natural persons…are equal before the law and have inalienable rights, among which are the right to enjoy and defend life… No person shall be deprived of any right because of…physical disability.”

Section 9.  Due process: “No person shall be deprived of life…without due process of law…”.

On the federal level, there was ample precedent for the President to defy the judiciary, especially if he believed they had failed their responsibilities. The most recent (but not the only) example of this was set by Bill Clinton when he sent heavily armed INS officers to seize Elian Gonzalez for return to Cuba, defying the federal court’s refusal to order exactly that. Leftists cheered that exercise of executive power in defiance of the court. Conservatives did not, but not because the executive defied the court, rather because of the ends for which that executive power was used – to condemn a child to the island prison of a communist dictator.

So what does all this mean? Of what importance is the death of one person in Florida, to us, to the nation, to our future? It is of colossal import. We, the People, were part of the contest in Florida. And most of us were found wanting.

What we witnessed in Florida was a test of Wills, in which raw power, not justice, was all that mattered. On one side was the judiciary, state and federal. Arrayed against the judiciary were the legislative and executive branches of government. And the people. The prize, which still hangs in the balance, is nothing less than self government itself. Recalling Jefferson’s comment that the “the judiciary” was conceived to be “the most helpless and harmless members of the government”, it would appear to be an unequal contest – unless the people surrender to the judiciary power to which it is not legitimately entitled.

In 1832, President Andrew Jackson put the power of the judiciary into proper perspective, when he reputedly responded to a Supreme Court ruling with which he disagreed, “[Chief Justice] John Marshall has made his decision, now let him enforce it.” Of course Marshall could not do so, unless the people and all the rest of the machinery of government voluntarily agreed to be bound by the Court’s decrees. And that, we did.

Judicial supremacy is the essential undercurrent of the Schiavo case (and the judicial confirmation battles now ongoing). In an interview several months ago, Michael Reagan observed that a President who believes in God recognizes there is a power in the universe greater than himself (and implicitly, greater than government). Consider the converse:

a government (specifically a judiciary) that sees itself as the supreme power. The Constitution recognizes the people as the source of all government power, superior to government. But those who assert a “living” Constitution believe that those who “interpret” the Constitution – the federal judiciary – are superior to both the Constitution and to the people. Logically, that is outright tyranny – how can one branch of the government have the sole authority to define the meaning of the very document that establishes and limits its own power? If that assertion is granted, by definition there are no limits to that power.

Think about the stunning arrogance of this – the only reason we accept the Supreme Court as superior to the other branches of government and superior to the people is because the Court itself claimed that to be so! Imagine if one day the congress or the president simply declared, ‘From now on, I’m the boss of the government.’ We would rightly reject such usurpation, yet we meekly accept it when the judiciary says the same thing.

Federal courts routinely adjudicate cases in which violations of constitutional and civil rights are alleged, and Congress passed and the President signed a bill pursuant to Article III to clarify that the federal court had jurisdiction in the Schiavo case, to adjudicate alleged violations of her rights. The legislative and executive branches mandated a review by the judicial branch. The federal Appeals Court ruled that because that law, “constitutes legislative dictation of how a federal court should exercise its judicial functions, the Act invades the province of the judiciary and violates the separation of powers principle.” The federal courts refused to comply with that act of Congress, and they were within their authority under the constitutional separation of powers to do so. With three co-equal branches of government, one or two cannot order the third to do something.

This – judicial independence – is something we hear quite a bit about. But the judiciary isn’t the only one of the three co-equal branches of government with independence. All three branches are independent of the dictates of the others. Even so, courts have no hesitation ordering taxes raised to pay for school spending (Missouri) or ordering a state legislature to write a law authorizing gay marriage (Massachusetts) – both purely legislative functions – yet we never hear editorialists screeching “constitutional coup d’etat” over that.

When there is disagreement between the branches of government, the judiciary claims itself as the ultimate arbiter, the referee whose decisions are final. But as Jefferson said, it is “a very dangerous doctrine indeed” for our judges to anoint themselves as superior to the people who have granted them their legitimate authority. And how they use their unlimited power shows a distrust of the citizens of the country, and poses a grave threat to the survival of our republic. Judicial diktats have been rendered on the basis of foreign laws not enacted by the people, and upon pronouncements of global institutions (thereby surrendering our national sovereignty); and upon treaties not ratified but which the justices think should have been ratified (thus rendering the Advice and Consent power of the people’s elected representatives in the Senate superfluous). When courts do rule on the basis of our own Constitution, they do so not as that document was ratified, but rather on the basis of what they think it should contain.

And it’s not as though judges acquire divine infallibility when they don their robes – we need merely cite the cases of Plessy v. Ferguson (upholding equal but separate accommodations) and Dred Scott v. Sandford (defending the property rights of slave owners) to see that even Supreme Court justices can be dreadfully wrong. But under the doctrine of judicial supremacy, when the Constitutional corrective process of checks and balances no longer exists, what remedy is there for such clear error? It required years of blacks being subjected to inferior schools before the Supreme Court admitted its mistake in Plessy, and overruled itself in Brown v. the Board of Education. And it took a civil war to reverse Dred Scott. That is the extremity to which the pernicious and dangerous doctrine of judicial supremacy has pushed this country.

This is more than just dry constitutional debate dredged up from long-forgotten parchments; there are profound social implications to the concept of judicial supremacy. What does it say about our national character that we have been so intimidated by the courts, that we did and said nothing when judges consigned a helpless innocent to death by dehydration and starvation; and that we didn’t stand up en masse in righteous indignation when we saw police arrest children bringing water and a mother prohibited from giving water to her dying child? To demonstrate their power, the kings in black robes decreed that Terri Schiavo must die, thus die she did. Because what was at stake here was not judicial independence, but judicial superiority, and not only over the other branches of government which had decreed otherwise, but over the people as well. The judges have shown us that they can order up death, and the condemned doesn’t even have to be guilty of anything. Our elected representatives just shrugged in helplessness. As did we.

What role have We, the People, been assigned by our all-powerful judges? In our great plan of self government called the Constitution, “the people are the only legitimate fountain of power” (James Madison). But in the new plan of monarchy being devised and imposed upon us by our courts, the people are rendered subservient, commanded to obey what we are told to do and think by our “betters”. In 1776 we declared independence from such tyranny. Do we now have the courage to stand up and say “No! We have not yet abandoned our liberty!” The Schiavo case was a test of wills between our three branches of government to see whether the nation is still able to exert any control at all over the judiciary; and whether We, the People, can regain control over our own government. We are still being tested

The Congress (or at least Tom DeLay and Rick Santorum) is starting to talk about taking steps to restore the constitutional checks and balances over the judiciary. Democrats are already in full-throated frenzy, claiming this to be an attack on judicial independence. The path to restore judicial accountability initially suggested by DeLay, however, was impeachment, which is the wrong approach, at least in the first instance. Article III states,

The Judges…shall hold their Offices during good Behavior…”. About this, Thomas Jefferson remarked, “Having found from experience that impeachment is an impracticable thing, a mere scarecrow, [the judiciary] consider themselves secure for life.”

But Jefferson didn’t dismiss impeachment entirely:

“[How] to check these unconstitutional invasions of... rights by the Federal judiciary? Not by impeachment in the first instance, but by a strong protestation of both houses of Congress that such and such doctrines advanced by the Supreme Court are contrary to the Constitution; and if afterwards they relapse into the same heresies, impeach and set the whole adrift. For what was the government divided into three branches, but that each should watch over the others and oppose their usurpations?”

A resort to impeachment in the first instance would be counterproductive, because it would indeed be a threat to judicial independence. Any trial in the Senate would almost inevitably find that the judges named did not violate the standard of good behavior. Then, the Congress having expended enormous will and political capital in that misguided effort, the judiciary would feel more secure than ever in their ability to simply ignore the Congress, the President, the Constitution, and the People.

We are engaged in a historic constitutional confrontation. The people’s control over the judiciary, designed into our original Constitution, has been absent from our system for over 200 years, since Marbury v. Madison. Recall Thomas Jefferson’s forceful denunciation of the Marbury case. In 1807 Jefferson, then President of the United States, wrote a letter to George Hay, United States Attorney and the chief prosecutor in the trial of Aaron Burr for treason. President Jefferson wrote:

“I observe that the case of Marbury v. Madison has been cited, and I think it material to stop at the threshold the citing that case as authority, and to have it denied to be law. … The Constitution intended that the three great branches of the government should be co-ordinate, and independent of each other. As to acts, therefore, which are to be done by either, it has given no controul to another branch. … Where different branches have to act in their respective lines, finally and without appeal, under any law, they may give to it different and opposite constructions. … From these different constructions of the same act by different branches, less mischief arises than from giving to any one of them a control over the others. … On this construction I have hitherto acted; on this I shall ever act, and maintain it with the powers of the government, against any control which may be attempted by the judges, in subversion of the independence of the executive and Senate within their peculiar department. … I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, and denounced as not law; and I think the present a fortunate one, because it occupies such a place in the public attention. I should be glad, therefore, if, in noticing that case, you could take occasion to express the determination of the executive, that the doctrines of that case were given extrajudicially and against law, and that their reverse will be the rule of action with the executive.”

The judge presiding at that trial was John Marshall, Chief Justice of the Supreme Court, who had himself rendered the opinion in Marbury v. Madison four years earlier, which Jefferson condemned. 

The question is whether the people will demand our rightful place in the constitutional order as the ultimate authority over all three branches of our government; or whether we will succumb to left-wing and media disinformation, which seeks to take advantage of our own ignorance of the true nature of our constitutional structure, and resign ourselves to being subservient to the judiciary. Can we restore the constitutional balance and reclaim control over our government? “The people, not the government, possess the absolute sovereignty.” – James Madison

For More Information:

Disability Rights Watch statement on Schiavo:

Florida State Constitution:

U.S. Constitution:

Legislative text:

Senate Resolution 92 (companion bill House Resolution 568):
“that judicial determinations regarding the meaning of the laws of the United States should not be based on judgments, laws, or pronouncements of foreign institutions”

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

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5 apr 2005