Time to End Judicial Tyranny

The judicial despotism the Founders warned against is happening today. It is time for an informed electorate to spur Congress to defend and restore our constitutional republic.

by John Eidsmoe

John Eidsmoe, a retired Air Force lieutenant colonel, is a professor of constitutional law at the Thomas Goode Jones School of Law, Faulkner University, Montgomery, Alabama .

‘‘Should the constitutional republic our forefathers designed be replaced with a government by the majority vote of a nine-person committee of lawyers who shall be appointed rather than elected and shall hold office for life?”

If a pollster were to ask this question, probably 99 percent of the public would answer with an emphatic “No!”

And yet, without an abundance of exaggeration, that is a fair description of the power now wielded by the U.S. Supreme Court — a court that claims the power to strike down and invalidate almost any action by almost any other branch or level of government.

It didn’t begin that way. The Framers established a constitutional republic in which the powers delegated to the federal government were, in James Madison’s words, “few and defined,” while those reserved to the states were many. And the powers delegated to the federal government were carefully separated into legislative, executive and judicial branches.

In The Federalist , No. 78, Alexander Hamilton wrote that of the three branches of government, the judiciary “will always be the least dangerous to the political rights of the constitution, because it will be least in a capacity to annoy or injure them.” The legislative branch exercises “will,” that is, it determines the policy of the nation; the executive branch exercises “force,” that is, it implements and enforces the will of the legislature. But the judiciary exercises only “judgment,” interpreting the will of the legislature and the actions of the executive. Hamilton wrote that the judiciary is “beyond comparison the weakest of the three departments of government; that it can never attack with success either of the other two....”

The Constitution nowhere expressly states that the federal courts have the power to strike down laws as unconstitutional. But in the famous 1803 case of Marbury vs. Madison , Chief Justice John Marshall claimed that power for the Supreme Court. Since Article III, Section 2 of the Constitution gives the court power over cases arising under the Constitution and laws of the United States, the Constitution therefore gives the court the authority to interpret the Constitution and statutes, argued Marshall. And if the court determines that a statute is inconsistent with the Constitution, then the court must rule that the Constitution stands and the statute falls. As Marshall declared:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

President Thomas Jefferson emphatically disagreed with Marshall’s decision. Jefferson had not been a delegate to the Constitutional Convention; during the Convention and the ratification process, he was in France. He had mixed feelings about the Constitution. He admired some features of it, but he was deeply concerned about the power of the judiciary. In 1804 he wrote to Abigail Adams: “[T]he 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.”


Steady Usurpation

Jefferson and his supporters called themselves the Democratic Republicans, the ancestor of the Democratic Party. They generally favored individual liberty, states’ rights, and a narrow view of the powers delegated to the federal government. Alexander Hamilton and his supporters called themselves the Federalists, and they believed the constitutional powers delegated to the federal government should be interpreted more broadly. When Jefferson was elected president in 1800, the defeated Federalist president, John Adams, in the closing days of his administration appointed Federalist John Marshall chief justice of the Supreme Court. President Jefferson and Chief Justice Marshall were distant cousins, but they clashed bitterly on issues of constitutional interpretation, and this clash intensified Jefferson’s distrust of the federal judiciary.

In 1821 Jefferson warned that “the germ of dissolution of our federal government is in the constitution of the federal judiciary, an irresponsible body … working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped from the states, and the government of all be consolidated into one.”

And in 1823 he seemed to suggest that Hamilton’s view of the judiciary as the “least dangerous” branch had proven to be incorrect: “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; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution, and working its change by construction, before anyone has perceived that the invisible and helpless worm has been busily employed in consuming its substance.”

Jefferson was not alone in his fear of judicial usurpation. When President Andrew Jackson vetoed the rechartering of the national bank, he argued that the national bank was unconstitutional even though the Supreme Court had held it constitutional in McCulloch vs. Maryland in 1819. Jackson declared in his veto message: “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.”

In a similar vein President Lincoln wrote: “[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in ordinary litigation between parties to personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

And President Theodore Roosevelt expressed a similar view: “It is the people, and not the judges, who are entitled to say what their constitution means, for the constitution is theirs, it belongs to them and not to their servants in office — any other theory is incompatible with the foundation principles of our government.”


The Devious Dialectic

Several factors have led to the expansion of judicial power. One is the changing view of truth. The Framers believed that truth is fixed, absolute and ordained by God Himself. The Christian majority believed this, and the Deist minority just as strongly believed in a universe that ran according to the absolute laws of the clockmaker God.

But in the 1800s this view began to change. Hegel taught that truth is not fixed but rather changes according to a dialectical process of thesis, antithesis and synthesis. Darwinism led to the belief that truth evolves and changes. And the postmodern view is that truth is subjective — that is, truth is whatever you perceive it to be.

Along with postmodernism came the movement known as language deconstruction, which holds that words have no intrinsic meaning, and what really matters is not the author’s intent or the dictionary definition, but rather the meaning drawn by the reader or viewer. A deconstructionist theater producer obviously feels much greater freedom to put her own message into Shakespeare’s plays than a producer who believes she must be faithful to Shakespeare’s intent. Likewise, a judge who holds this view of truth, law and language feels much more free to read his own views into the Constitution, than the judge who believes in jurisprudence of original intent.

Understood thus, Charles Evans Hughes’ statement that “We are under a Constitution, but the Constitution is what the judges say it is” takes on a new and ominous meaning. And as Chancellor James Kent said, if judges are not bound by the plain meaning of the Constitution, they are free to roam at large in the trackless fields of their own imaginations.

Another contributing factor is the incorporation doctrine. Originally, as the Supreme Court recognized in Barron vs. Baltimore (1833), the Bill of Rights applied only to the federal government; people looked to state constitutions and state courts for protection if state officials abused their rights. But this began to change.

Ratified in 1868, the 14th Amendment provides in part that no state shall “deprive any person of life, liberty or property without due process of law.” For about half a century thereafter, the courts interpreted the Due Process Clause to mean that no one may be deprived of life (executed), liberty (jailed) or property (fined) without due process of law (a fair trial). But in the early 1900s the view developed that the Due Process Clause means that states may not deprive people of free speech, press, religious liberty, or other basic rights. In other words, according to this view, the Bill of Rights, or at least some of the rights in the Bill of Rights, are incorporated into the Due Process Clause and are therefore applied to state and local governments.

Protecting people’s constitutional rights against state and local abuses seems laudable. But the practical effect of the incorporation doctrine is to give the federal courts a virtual monopoly on the business of rights protection. This greatly expands the authority of federal courts, and raises a perplexing question: In the long run, are rights really more secure in the hands of unelected federal judges, than with those who are more directly responsible to the people?

Put these concepts together — the incorporation doctrine and the postmodern concept of truth and law — and we have a recipe for judicial absolutism.

In Roe vs. Wade (1973), the Supreme Court struck down the abortion laws of Texas and most other states on the ground that they violated the purported constitutional right to abort a child. But where is that right found in the Constitution? As Justice Blackmun claimed, quoting from previous decisions: “[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.”

Included in those zones of privacy, Blackmun insisted, is the right to make decisions about oneself, including whether to have children, and the right to make that decision retroactively after conception by means of abortion. More recently in the 2003 Lawrence vs. Texas decision, the Supreme Court found that this penumbral right of privacy also includes the right to engage in homosexual sodomy.

But consider the consequences of this type of decision making. Jurisprudence based upon “penumbras” and “emanations” removes the constitutional interpretation from any kind of objective scholarship and leaves us with a Constitution that can mean anything any judge wants it to mean.


Reining In the Courts

What can be done to combat judicial tyranny? Many remedies have been suggested: constitutional amendments, limited terms for judges, defunding the courts, impeachment. But the Constitution itself provides a remedy that is worthy of consideration.

Article III, Section 2 of the Constitution, provides that the Supreme Court shall have original jurisdiction over a narrow range of cases, mostly involving foreign ambassadors. It then provides: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” The Framers wisely gave Congress a check on the court: Congress can limit the court’s appellate jurisdiction.

Predictably, the courts have not exactly been enamored with this provision. But they have generally, if reluctantly, upheld the power of Congress to limit the court’s appellate jurisdiction, in such cases as Ex Parte McCardle (1869), Ex Parte Yerger (1869), Robertson vs. Seattle Audubon Society (1992), and Felker vs. Turpin (1996).

In two cases, the Supreme Court has struck down statutes that limit its appellate jurisdiction: United States vs. Klein (1872) because Congress was trying to affect the outcome of a pending case; and Plaut vs. Spendthrift Farm, Inc. (1995), because Congress was trying to overturn a court decision.

And what about limiting the jurisdiction of lower federal district courts and circuit courts of appeals? Many are unaware that the only court expressly created by the Constitution is the U.S. Supreme Court; all other federal courts were created by Congress under Article I, Section 1 and can be abolished by Congress. It seems self-evident that since Congress can create or abolish federal courts inferior to the Supreme Court, Congress can define, expand or limit their jurisdiction. Supreme Court cases so holding include Sheldon vs. Sill (1850), Lockerty vs. Phillips (1943), and Yakus vs. United States (1944).

Several bills are pending in Congress that would limit the appellate jurisdiction of the federal courts over cases involving the public display of the Ten Commandments. But the basic concept of limiting the federal courts’ jurisdiction could be applied to many other cases as well. The concept could be used, for instance, to allow states to outlaw abortion or local school boards to reinstitute school prayer without the federal courts being able to rule against them.

The judicial despotism Jefferson and others warned against can indeed happen here, and what might have seemed fanciful prophecy in 1800 is rapidly becoming established fact. It is time to take action to defend and restore our constitutional republic.

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