by David Barton
[I]f the public are bound to yield obedience to laws to which they cannot give their approbation [support], they are slaves to those who make such laws and enforce them.43
In fact, the Founders recognized that if national policies are enforced which lack popular support, the people will come to despise, and eventually resist, their government. As Luther Martin explained at the Constitutional Convention:
It is necessary that the supreme Judiciary should have the confidence of the people. This will soon be lost if they are employed in the task of remonstrating against [opposing and striking down] popular measures of the Legislature.44
Notwithstanding occasional attempts to expand its authority, the Judiciary, by-and-large, understood its role; and early courts expressed their keen understanding both of the elevated role of the Legislature and of the people’s supreme power over that branch. For example, notice this excerpt from Commonwealth v. Kneeland (1838):
The Court, therefore, from its respect for the Legislature, the immediate representation of that sovereign power [the people] whose will created and can at pleasure change the Constitution itself, will ever strive to sustain and not annul its [the Legislature’s] expressed determination…. [A]nd whenever the people become dissatisfied with its operation, they have only to will its abrogation or modification and let their voice be heard through the legitimate channel, and it will be done. But until they wish it, let no branch of the government, and least of all the Judiciary, undertake to interfere with it.45 (emphasis added)
Constitutional scholar William Rawle affirmed this belief of the Judiciary, noting that early federal judges exercised “caution arising from a systematic anxiety not to exceed their jurisdiction.”46
That scope of jurisdiction granted to the Judiciary by the Constitution precluded it from exerting either force or will. As Hamilton succinctly explained in Federalist #78:
The Judiciary … has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will.47 (emphasis added)
Obviously, the current Judiciary disdains this original plan and today exerts both force and will; it clearly has become the dominant policy-making branch in the federal government. Long ago, Thomas Jefferson predicted how this judicial increase of power might occur:
It has long, however, been my opinion, and I have never shrunk from its expression … that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; … 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.48
Today’s Judiciary, as Jefferson foresaw, accrued its additional powers by slowly advancing its field of jurisdiction. While earlier generations diligently guarded against the expansion of judicial powers, subsequent generations became careless. Consequently, if the Court “tested the waters,” advanced a new self-assigned power and failed to meet serious resistance, it simply consolidated its new gain. The result has been that, over a period of decades, the Court has succeeded in completely redefining its own constitutional role and has usurped Executive, Legislative, and State powers, centralizing them in its own hands. Jefferson had forewarned that such a centralization of power would result in the loss of local controls:
[T]aking from the States the moral rule of their citizens, and subordinating it to the general authority [federal government] …. would … break up the foundations of the Union…. I believe the States can best govern our home concerns and the general [federal] government our foreign ones. I wish, therefore … never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may more secretly be bought and sold as at market.49
Indeed, today one would hardly recognize Jefferson’s description whereby “the States would govern our domestic concerns and the federal government our foreign ones.” Jefferson further warned that such a centralization of powers would effectively negate the checks and balances established in the Bill of Rights between the State and federal governments:
[W]hen all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another.50
Jefferson’s fears have now become reality through the unchecked power of the Judiciary.
The means used by the Judiciary to increase its scope of power is to judge laws according to the “spirit,” or what it calls the “penumbra,”51 or shadow, of the Constitution. This has enabled the Judiciary to impute any meaning it wishes to the Constitution, resulting in the creation of brand new constitutional “rights” which reflect not the will of the people but rather the personal values and prejudices of the judges.
Ironically, many of the new rights the Judiciary has discovered under this penumbra are neither explicitly mentioned nor even generally alluded to anywhere in the Constitution. In fact, these penumbral rights often repudiate the original intentions of the Constitution. For example:
The Constitution protects free speech, but the courts created a new right – a “freedom of expression.” They thus subverted a protection for words into a protection for actions and behaviors, judicially enshrining acts formerly forbidden, and still abhorred, by the citizenry (flag-burning, nude dancing, desecration of religious symbols, etc.).
Under the “right of privacy” (a right found nowhere in the Constitution), overtly immoral acts against decency and good order that long were illegal are now judicially raised above the reach of the law (pornography, sodomy, etc.).
The judicial grant of immunity for public officials prevents them from being sued by citizens for deliberately wrongful or malicious acts while in office. In fact, judges often cannot be sued for any of their actions, even if they intentionally violate the Constitution.
The judicial establishment of a “right to choose” enabled it to overturn State statutes which had existed from the time of the Constitution. That “right” has become a legal club used to inhibit citizen and State attempts to protect innocent, unborn human life.
The judicial doctrine of “selective incorporation” completely reversed the purpose of the Bill of Rights, thus allowing the federal Judiciary to micromanage the smallest affairs of citizens and States.
When the Judiciary creates such new rights as these described above (and others), it promptly enshrines them in its case law. Courts then subsequently judge legislation not against the Constitution but rather against other court decisions, thus elevating judicial rulings to the level of the Constitution itself. In fact, the Courts have so thoroughly rewritten the intent of the Constitution that legal scholars now describe the contemporary Supreme Court as a “continuing Constitutional Convention.”52
Even though judicial review is now misused and abused by the courts, nevertheless, it was, in its original form, established by the Founding Fathers. However, the Founders acknowledged that any of the three branches could exercise this review of the laws for constitutionality. For example, James Wilson (Supreme Court Justice and signer of the Constitution) declared that the President can “refuse to carry into effect an act that violates the Constitution.”53 An excellent example of this surrounds the passage of the four Alien and Sedition laws in 1798.
The catalyst for these four laws had been the XYZ scandal where French officials were demanding bribes from American diplomats before allowing them an audience with the French Foreign Minister. The largely Federalist Congress responded by crafting laws predominantly directed against foreigners; however, they also saw in those laws an opportunity to stifle their Jeffersonian critics.
The first law increased the residence requirements for would-be citizens from five to fourteen years. The second allowed the deportation of suspicious aliens. The third authorized the imprisonment of any alien suspected of
aiding a nation hostile to the United States. The fourth, and most controversial, established a fine and/or imprisonment for any person, alien or otherwise, who criticized the government in writing or speech. It was this fourth law which provided the Federalists a mechanism to silence not only foreign critics but also the many domestic Anti-Federalist critics of President John Adams.
Under this law, twenty-five individuals were arrested, and ten convicted. The law was not declared unconstitutional by the courts, but when Jefferson became President, he believed the law was unconstitutional. Therefore, he promptly freed all of those imprisoned under it, without regard to the specifics of their particular offense. As he explained:
I discharged every person under punishment or prosecution under the sedition law because I considered, and now consider, that law to be a nullity, as absolute and as palpable [obvious] as if Congress had ordered us to fall down and worship a golden image; and that it was as much my duty to arrest its execution in every stage as it would have been to have rescued from the fiery furnace those who should have been cast into it for refusing to worship the image. It was accordingly done in every instance without asking what the offender had done or against whom they had offended, but rather the pains they were suffering were inflicted under the pretended sedition law.54
Jefferson was criticized by some for nullifying this law, yet notice his response to one critic:
You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment because the power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, were bound to remit the execution of it because that power has been confided to them by the Constitution.55
However, just as both the Judicial and the Executive had a right to expound the constitutionality of laws, so, too, did the Legislature. For example, at the Constitutional Convention, delegate Luther Martin had declared:
A knowledge of mankind and of legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature.56
Then, during congressional debates in 1789, James Madison forcefully rebutted a suggestion that the Legislature was not to expound the constitutionality of laws:
But the great objection drawn from the source to which the last arguments would lead us is that the Legislature itself has no right to expound the Constitution; that wherever its meaning is doubtful, you must leave it to take its course until the Judiciary is called upon the declare its meaning. I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the Judiciary. But I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments.57
The following day, as the debate continued, Madison reasserted:
Nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the Legislative as by the Judicial authority.58
A decade later, Founder John Randolph reaffirmed the same belief during a congressional debate, explaining:
The decision of a constitutional question must rest somewhere. Shall it be confided to men immediately responsible to the people [the Congress] or to those who are irresponsible [the judges]? … With all the deference to their talents, is not Congress as capable of forming a correct opinion as they are? Are not its members acting under a responsibility to public opinion which can and will check their aberrations from duty?59
Very simply, the original intent was that any of the three branches could interpret the Constitution. As Thomas Jefferson confirmed:
[E]ach of the three departments has equally the right to decide for itself what is its duty under the Constitution without any regard to what the others may have decided for themselves under a similar question.60
Because any branch was capable of determining constitutionality, the Founders rejected the notion that the Judiciary was the final voice. In fact, in a letter to Judge Spencer Roane, Jefferson explicitly addressed the absurdity of such an assertion:
[O]ur Constitution…. intending to establish three departments, co-ordinate and independent that they might check and balance one another, it has given – according to this opinion – to one of them alone the right to prescribe rules for the government of the others; and to that one, too, which is unelected by and independent of the nation…. The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary which they may twist and shape into any form they please.61
To Abigail Adams he explained:
[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.62
And then, to William Jarvis, Jefferson declared:
You seem … 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. Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. [A]nd their power 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.63
Jefferson did not oppose the courts expounding the Constitution,64 but he stressed that the Judiciary was not the “final arbiter.” It was merely one of three branches in a system where each was capable of reading the Constitution and determining constitutionality.
Generations later, President Lincoln, in his “Inaugural Address,” affirmed that this was still the belief when he declared:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court…. At the same time, the candid citizen must confess that if 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 … the people will have ceased to be their own rulers, having … resigned their government into the hands of that eminent tribunal.65
Lincoln’s statement had been prompted by the Dred Scott decision66 in which the Supreme Court had declared that Congress could not prohibit slavery – that slaves were only property and not persons eligible to receive any rights of a citizen. Fortunately, the other two branches ignored the Court’s ruling. On June 9, 1862, Congress did prohibit the extension of slavery into the free territories;67 and the following year, President Lincoln did issue the “Emancipation Proclamation” – both were acts that were a direct affront to the Court’s decision. Because Congress and President Lincoln were guided by their own understanding of the Constitution rather than by the Judiciary’s opinion, both declared freedom for slaves.
As this example illustrates, if the other branches considered the Judiciary’s opinion clearly wrong, they simply ignored it. Constitutional scholar William Rawle explained this prerogative of the branches to students in 1825:
The Judicial power is general or limited according to the scope and objects of the government. In a word, it must be fully and exactly commensurate with that of the Legislature. It cannot by any terms of language be made to exceed the Legislative power, for such excess would be inconsistent with its nature…. But it is said that there is generally a propensity in public functionaries to extend their power beyond its proper limits, and this may at some future time be the case with the courts of the United States…. In such an extreme and therefore improbable case, as there would be
no color of jurisdiction, the whole [judicial] proceedings would be void.68
Justice Story, too, acknowledged the right of the Executive and Legislative branches to make final and ultimate decisions within their spheres:
[I]n many cases, the decisions of the Executive and Legislative departments, thus made, become final and conclusive, being from their very nature and character incapable of revision. Thus, in measures exclusively of a political, Legislative, or Executive character, it is plain that as the supreme authority as to these questions belongs to the Legislative and Executive departments, they cannot be reexamined elsewhere.69
Just as the Founders strongly believed that any of the three branches could interpret the Constitution, they also strongly opposed mixing the functions of each branch or blurring the distinct separations between them. Yet, today, the public’s understanding of the function of each branch is distorted by the Judiciary’s intrusion into the functions of the other branches; however, such obfuscation was never intended and was not always present. For example, in 1841, University of Virginia law professor Henry St. George Tucker† explained the clear function of each branch to his students:
[T]he power that makes them [the laws] exercises de facto the supreme power and constitutes the Legislature. But when laws have been made there must be somewhere vested the power of carrying them into execution. This power is clearly distinct from the Legislative, and is called the Executive. It consists in nothing more than in giving effect to what a superior power has commanded. As, if the law denounces death against the murderer, the duty of enforcing that law by the condign [deserved] punishment of the offender devolves upon the Executive or on some of those numerous officers who together constitute that branch of political power. But though the punishment of the guilty devolves upon the Executive, the ascertaining of his guilt belongs to an entirely different branch of the sovereign authority, and this branch is the Judiciary. For the power of judging constitutes no part either of Legislative or Executive authority. It is a separate and distinct attribute and in wise governments entrusted to different hands. Thus the Legislature makes the law, the Executive institutes its prosecutors against the infractors, the Judiciary decides on their guilt and pronounces judgment, and the Executive then again steps in and carries that judgment into execution. Such is a true and simple analysis of the powers of government.70
