from the Congress Action newsletter

Who Judges The Judges?

by: Kim Weissman
January 30, 2000

Over the past few decades, our nation has become less of a representative republic, and has come to resemble an aristocracy ruled by an increasingly arrogant and uncontrollable Imperial Judiciary. Our congressional representatives and the president can be denied re-election by the people they serve, but federal judges serve for life, and are therefore totally unaccountable. The laws that govern our society, which under our Constitution should be enacted by the legislature, are often now imposed on society by federal judges intent on designing public policy to suit their own tastes and prejudices.

The newest Supreme Court ruling attacking the First Amendment is a case in point, upholding State limitations on campaign contributions so as to avoid the "perception" of corruption.

"For nearly half a century, this Court has extended First Amendment protection to a multitude of forms of 'speech', such as making false defamatory statements, filing lawsuits, dancing nude, exhibiting drive-in movies with nudity, burning flags, and wearing military uniforms. … In light of the many cases of this sort, today’s decision is a most curious anomaly. Whatever the proper status of such activities under the First Amendment, I am confident that they are less integral to the functioning of our Republic than campaign contributions. Yet the majority today, rather than going out of its way to protect political speech, goes out of its way to avoid protecting it." (Justices Thomas and Scalia, dissenting).

Then there is the assault on the Second Amendment, not through the Constitutional amendment process, but by groundless lawsuits filed by pandering politicians, permitted to go forward by activist judges, which have already forced one firearms manufacturer out of the retail business entirely. Do judges really not understand the meaning of "shall not be infringed", or do they simply know that they can ignore the Bill of Rights with impunity because we are too ignorant or too cowed to object?

Many perfectly Constitutional laws that have been enacted by legislative vote or a majority of the people in state referendum votes have been nullified by judicial fiat. The popular attitude is that if Congress refuses to take some action which some elitists want, the other two branches are free to usurp that legislative authority.

The Executive Branch does that through Executive Orders and decrees more suited to a monarchy than to a republic. The Judicial Branch does it through edicts which often have no basis in Constitutional law or intent, fact or logic, in a process more suited to a totalitarian aristocracy than to a representative republic. And the people cheer every new usurpation. To James Madison, the foremost authority on the Constitution, such usurpation "…makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper."

The Supreme Court and the federal judiciary was established as the final arbiter of the meaning of the Constitution, within the hierarchy of the federal government. BUT: Their authority is derived from that very Constitution which, just as every other branch of our federal government, grants them their power. And that grant of power ultimately arises from the People; because all power, in our form of government under our Constitution, originates with the People.

Here, the People rule. As long as the will of the People does not violate the Constitution, that will is supreme. The Justices of the Supreme Court, no less than all other federal officials, are employees of the People. From where do our employees obtain the right, the legitimate authority, to overrule — to dictate to — their employers?

In our republic, the People exercise their power through their elected representatives, the Congress. If the People do not have the power, operating through their elected representatives, to overrule the Supreme Court, then the Supreme Court has absolute power over the People. If that is true, where did that absolute power come from? Did it pre-exist the Constitution?

That cannot be, because the Supreme Court was created by the Constitution, and logically could not have possessed power before it even came into existence. Then that absolute power must have arisen either in the Constitution itself, or after ratification of the Constitution. How?

The People, originally possessing all of what would eventually become federal power, must have granted that absolute power to the Court. That can have only happened in one of three ways: (1) the People granted absolute power to the Supreme Court by the Constitution, or (2) by Constitutional Amendment, or (3) by act of Congress. If the People did not grant absolute power to the Supreme Court in one of those three ways, then we have a rogue federal judiciary improperly exercising power that it does not legitimately have. It has, quite simply, stolen the power that it exercises. So where is that grant of absolute power?

The Constitution simply says, "the Judicial power shall be exercised". It does not say that such power is absolute and cannot be challenged. The Constitution goes on to say that justices can be removed (Article III, Section 1), and that the appellate jurisdiction of the Court — virtually everything they hear except those narrow cases of original jurisdiction — can be defined, and limited, by the Congress (Article III, Section 2).

Where in the Constitution did the People grant unlimited power to the Supreme Court?

Nowhere. Nor is there any Amendment that does so. So if the Court does have absolute power, that power must have been granted by an act of Congress. And any power granted by the Congress can be removed by the Congress. If the People did not grant absolute power to the Court (either through the original Constitution, subsequent Amendment, or act of Congress), then the Court must have simply usurped power that was not granted to it, and therefore the Court’s exercise of absolute power is not legitimate.

Virtually everything the Supreme Court does involves an interpretation of the meaning of the Constitution. Their sole purpose is to apply the true meaning of the Constitution to concrete factual situations and to legislation enacted by the States or the Congress. The most authoritative sources for the genuine meaning of the Constitution are the people who wrote, debated, and ratified it; and among them, James Madison was the chief architect. Madison, Alexander Hamilton, and John Jay explained in detail the true meaning of the Constitution in a series of articles collectively called The Federalist Papers.

In the early years of the Supreme Court, Chief Justice John Marshall explained, "The opinion of The Federalist has always been considered as of great authority." Madison reiterated this point: "And on the distinctive principles of the Government…the best guides are to be found in: … the book known by the title of The Federalist, being an authority to which appeal is habitually made by all and rarely declined or denied by any, as evidence of the general opinion of those who framed and those who accepted the Constitution of the United States on questions as to its genuine meaning…".

Yet often the Supreme Court rules in a manner that is directly contrary to the intent of the Founders.

In 1936, in ruling on the "general welfare" clause, the Court said, "The power of Congress to authorize appropriations of public money for public purposes is not limited by the grants of legislative power found in the Constitution."

Madison told us otherwise: "With respect to the words 'general welfare', I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

Thomas Jefferson concurred with Madison: "Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated." The Court simply ignored the express meaning of the Constitution.

There are very few Constitutional scholars who would agree that the Supreme Court can be overruled by the Congress. Under Article III, Section 2 of the Constitution, the Supreme Court has the right to decide only those cases involving its original jurisdiction ("affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party"). In all other types of cases "…the Supreme Court shall have appellate Jurisdiction…with such Exceptions, and under such Regulations as the Congress shall make." So there is no doubt that the Congress can remove or restrict that appellate jurisdiction, and prevent the Court from deciding anything else beyond its original jurisdiction.

This is where we enter the realm of political power. Congress certainly has the power to control the Court by removing its jurisdiction to decide most issues, if it has the political courage to do so. But if, as the Court and legal scholars would have us believe, the Legislative branch has no control over the Supreme Court beyond confirming or rejecting judges, and the Executive branch has no control over the Court beyond nominating judges, then we must conclude that the Constitution established two branches of government that can check and balance each other, and a third branch — the judiciary — that can dictate to the other two, dictate to the People, dictate to the States, and yet which itself is subject to no control whatsoever.

Can it seriously be suggested that the Founders intended to create a group of potentates — federal judges — with lifetime tenure and totally beyond all control; that the Founders intended to create a judicial panel of authoritarian monarchs capable of exercising absolute and unlimited power; in effect, to create a class of kings whose decisions cannot ever be reversed? Such a startling idea runs exactly contrary to the entire basis upon which our new nation was founded. Yet that is precisely what those who now run our federal government expect us to believe and accept.

Even more fundamentally, the People did not surrender their capacity to think, to read the opinions of the Court, and, if appropriate, to conclude that the Court is wrong when their decisions contradict the expressed meaning of the Founders. And to correct that wrong through our elected representatives. Any other result would mean that the Constitution intended to establish an unelected, unaccountable, and uncontrollable tyranny over the nation. Did a free People intentionally grant to the federal judiciary the power to enslave them? We today apparently believe so, because we today believe that the dictates from the Supreme Court cannot ever be challenged.

"To what purpose are powers limited, and to what purpose is that limitation committed to writing [the Constitution], if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed...". – John Marshall, Chief Justice, United States Supreme Court (1803).

"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 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." – James Madison ("The Virginia Report" to the Virginia House of Delegates on the Virginia Resolutions, 1799).

As Madison feared, our Constitution has been "subverted". By the federal judiciary. They have assumed the role of kings, and the People, the only true source of federal power under our Constitution, obediently bow down before them. Madison would be appalled. But why should we care what the Constitution actually says, or what the Founders intended?

We find self-governance too hard, and we happily surrender our freedom so that the government may take care of us. We are becoming the only people in history to voluntarily throw away our liberty and embrace servitude.



Supreme Court campaign contributions decision:

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


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31 jan 2000