Thomas Jefferson on Judicial Tyranny
“The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.” (Letter to John Wayles Eppes, 1807)
“Our 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 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.” (Letter to Judge Spencer Roane, Sept. 6, 1819)
“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 . . . and 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, with corruptions of time and party, its members would become despots.” (Letter to William Jarvis, Sept. 28, 1820)
“The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet, and they are too well versed in English law to forget the maxim, ‘boni judicis est ampliare jurisdictionem’ [good judges have ample jurisdiction]. . . . A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.” (Letter to Thomas Ritchie, Dec. 25, 1820)
“The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) 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.” (Letter to Charles Hammond, August 18, 1821)
“The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them.” (Letter to Judge Spencer Roane, 1821)
“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 any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.” (Letter to A. Coray, October 31, 1823)
“One single object… [will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation.” (Letter to Edward Livingston, March 25, 1825)
Compare the following quote in Abraham Lincoln’s first inaugural address:
“…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, in ordinary litigation between parties, in 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.”
The Founders on the Dangers of Judicial Activism
Please read the excerpts below and purchase the materials provided from David Barton, that provide us with the information on our Founders that will give us the tools needed in this hour.
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ORIGINAL INTENT by David Barton ** Chapter 15: excerpts from pages 258 through to page 269
MAINTAINING CONSTITUTIONAL INTEGRITY: A Government of the People
... Very simply, the Constitutional framers supported judicial review; the Federalist Papers explained it; the ratification debates described it; and legal scholars confirmed it.
Yet, within judicial review, there were specific things which the Judiciary could not do. For example, laws were to be judged only against the specific, self-evident wording of the Constitution and nothing further. In other words, judicial review had a limited field of inquiry. Hamilton confirmed this in Federalist #81:
James Kent similarly explained that the Judiciary could compare a law only to "the true intent and meaning of the Constitution." According to Hamilton, the reason that the courts were not to construe the laws "according to the spirit of the Constitution" was that this would "enable the court to mold them [the laws] into whatever shape it may think proper" which was "as unprecedented as it was dangerous." Very simply, if the Judiciary were allowed to place its own meaning on laws, or to strike down laws which did not necessarily violate the Constitution but with which it disagreed, then the Judiciary would become more powerful than the Legislature - a possibility repugnant to the Founders.
As James Madison explained: [R]efusing or not refusing to execute a law, to stamp it with its final character... makes the Judiciary department paramount in fact to the Legislature, which was never intended and can never be proper.
The Founders understood that under a broad judicial review, the Judiciary might become policy-makers-something they explicitly forbade. As signer of the Constitution Rufus King warned, "the judges must interpret the laws; they ought not to be legislators." similarly declared that the Judiciary was forbidden to "substitute [its] own pleasure to the constitutional intentions of the Legislature."
Samuel Adams also offered strong opinions on this subject and explained why Legislative intentions, rather than Judicial intentions, must always prevail:
Footnote: lnterestingly, almost a decade before the American Revolution, Samuel Adams had been one of the first to point out the abuses of the British judiciary in America. He long condemned the fact that British judges did not receive their salaries from the Legislature and, therefore, were not accountable to the people. He also complained that the terms of British judges were not limited to the duration of good behavior, thus meaning they could continue to serve even if they usurped the rights of the citizens. Very simply, Adams saw the English judiciary as a branch completely unaccountable to the people. Significantly, both of these complaints by Adams against the British judiciary were specifically incorporated in the U.S. Constitution to prevent a similar abuse of American judicial powers.
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:
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):
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."
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.
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."
Today's Judiciary, as Jefferson foresaw, accrued its additional powers by advancing its field of jurisdiction. While earlier generations duly 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 years 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.
Indeed, today one would hardly recognize Jefferson's description whereby States would govern our domestic concerns and the federal government our foreign ones."Jefferson further warned that such a centralization powers would effectively negate the checks and balances established in 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.
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 according to the "spirit," or what it calls the "penumbra," 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 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."
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." An excellent example of this surrounds the passage of the four Alien and Sedition laws in 1798.
... 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.
Jefferson was criticized by some for nullifying this law, yet notice his response to one critic:
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:
Then, during congressional debates in 1789, James Madison forcefully rebutted a suggestion that the Legislature was not to expound the constitutionality of laws:
The following day, as the debate continued, Madison reasserted:
A decade later, Founder John Randolph reaffirmed the same belief during a congressional debate, explaining:
Very simply, the original intent was that any of the three branches could interpret the Constitution. As Thomas Jefferson confirmed:
Because any branch was capable of determining constitutionality, the Founders rejected the notion that the Judiciary was the final voice. In fact, a letter to Judge Spencer Roane, Jefferson explicitly addressed the absurdity of such an assertion:
To Abigail Adams he explained:
And then, to William Jarvis, Jefferson declared:
Jefferson did not oppose the courts expounding the Constitution, 61 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:
Lincoln's statement had been prompted by the Dred Scott decision 63 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; 64 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:
Justice Story, too, acknowledged the right of the Executive and Legislative branches to make final and ultimate decisions within their spheres:
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.
Historically, the separate role and function of each branch was clearly understood. The Founders first made evident their opposition to blurring the lines of distinction between the branches during the Constitutional Convention when a "Council of Revision" was proposed. That Council would have combined representatives from the Judicial and Executives branches to review the constitutionality of legislation coming out of Congress. According to the records of the Convention:
Mr. [James] Wilson moved as an amendment.. . "that the Supreme National Judiciary should be associated with the Executive in the revisionary power.". . . The Judiciary ought to have an opportunity of remonstrating against [reviewing and protesting] projected encroachments on the people as well as on themselves.. . . Laws may be unjust, may be unwise, may be dangerous, may be destructive. Let them [the judges] have a share in the revisionary power and they will have an opportunity of taking notice of those characters of a law and of counteracting by the weight of their opinions the improper views of the Legislature.
The reaction of the other delegates to this proposal was unambiguous:
Mr. [Elbridge] Gerry... [said] the motion was liable to strong objections. It was combining and mixing together the Legislative and other departments... . It was making statesmen of the judges and setting them up as the guardians of the rights of the people. He relied for his part on the Representatives of the people as the guardians of their rights and interests. It was making the expositors of the laws [the judges] the legislators which ought never to be done... . Mr. [Caleb] Strong thought with Mr. Gerry that the power of making ought to be kept distinct from that of expounding the laws... . Mr. [Luther] Martin considered the association of the judges with the Executive as a dangerous innovation as well as one which could not produce the particular advantage expected from it.
The result was that even though three of the most influential of the Convention's participants (James Madison, James Wilson, and George Mason) championed this concept, it was voted down on four occasions.
Judicial Tyranny, by - The Washington Times - Saturday, August 9, 2003
Consider some recent controversial court rulings:
In California, the U.S. 9th Circuit Court of Appeals found the Pledge of Allegiance unconstitutional because it refers to "One Nation, Under God," allegedly violating the First Amendment's "establishment clause."
In Florida, the state supreme court threw out a law requiring parents of minor girls to be notified before their daughters obtain an abortion, this despite overwhelming public support for such a common-sense provision.
Although voters in Nevada twice in the 1990s passed an amendment to the state constitution calling for a two-thirds supermajority of the legislature to pass any tax increase, the Silver State's supreme court ordered legislators to pass a $1 billion tax increase by a simple majority. This ruling effectively disenfranchised the voters of Nevada, stood the constitution on its head, and made a mockery of popular self-government.
In her opinion in the University of Michigan affirmative action case, U.S. Supreme Court Justice Sandra Day O'Connor admitted that the plain language of the 15th Amendment prohibits the government from making any discrimination among citizens on the basis of race. Nonetheless, Justice O'Connor asserted that a "compelling state interest" in diversity trumps the plain meaning of the Constitution.
In Lawrence vs. Texas, the Supreme Court kicked open the door, as Justice Antonin Scalia noted in his scorching dissent, to legalized same-sex marriage, polygamy and other unconventional relationships, thereby setting up a revolution in social norms despite the unwillingness of the American people to undertake such an upheaval. Any day now the Massachusetts Supreme Court is expected to legitimize same-sex marriage.
These and other outrageous cases — will we soon forget the U.S. Supreme Court rewriting the rules of golf for the PGA? — suggest our American system of separated powers, checks and balances, is seriously out of balance. Although many of the people's elected representatives are perfectly willing, even eager, to punt some of the most incendiary issues to courts, the Framers of the Constitution never intended for Americans to live under a judicial oligarchy in which berobed despots issue decrees like so many Mogul potentates.
The notion of judicial supremacy, that the court has the final say on the meaning of the law and Constitution, is nowhere to be found in the thoughts of the Framers or the text of the Founding document. It is a power the courts have arrogated to themselves over time with little resistance from the legislative or executive branches of government. Federalist 78 by Alexander Hamilton contains not so much as a hint that the courts constitute the supreme branch of government or that judicial rulings irrevocably settle issues in dispute. Such a notion of unaccountable, unanswerable, unfettered judicial power does violence to the whole notion of separated powers.
The Framers limited the power of the courts just as they did the powers of the other two branches of government. Not only can the people amend the Constitution, but the Congress also can limit the courts' jurisdiction under the Constitution's "exceptions clause" in Article III, Section 2, putting specific matters beyond the reach of grasping judges (Federalist 81, also by Hamilton).
Even so, the crisis of the courts is deeper than is widely recognized.
American judges increasingly are looking to harmonize U.S. law and the Constitution with European and international legal norms, thereby threatening both our national sovereignty and the sovereignty of the Constitution under which our liberties have been secured for two centuries.
Denying the federal courts jurisdiction under the Exceptions Clause may be the best option available to rein in a runaway judiciary. As Justice O' Connor's opinion in the affirmative action ruling illustrates (as does the Nevada court's lawless order in the tax case), many judges are willing simply to ignore constitutions and the expressed will of the voters.
Amending the Constitution would be a waste of effort in the face of an activist court majority determined to rule by judicial fiat and to run roughshod over the basic law to achieve desired social ends. Such despotic jurisprudence would not be restrained by any constitutional amendment, as Justice O'Connor's affirmative action ruling proves.
The executive branch, too, should begin exercising its constitutional responsibility to provide a check over a rogue judiciary. Again, as Federalist 78 notes, the judiciary possesses neither the power of the purse nor the sword. It depends upon the power of the executive to execute its orders. But the executive, no less than the judicial, has sworn an oath to defend the Constitution. Thomas Jefferson refused to enforce the Alien and Sedition Acts even though the Supreme Court held those egregious laws to be constitutional. And Abraham Lincoln refused to abide by Dred Scott, holding that the court's rulings were binding only upon the immediate parties to the case. As Lincoln noted, if the Supreme Court's decisions irrevocably resolve issues, the people will have ceased to be their own rulers and resigned their government into the hands of judges.
The fiction of judicial supremacy, often cloaked in the guise of a high-minded though self-serving assertion of "judicial independence," poses a direct threat to self-government. The proper balance between the branches of government, as envisioned by the Framers in the separation-of-powers doctrine, must be restored if our American experiment in popular self-government is to prosper.
Richard Lessner is executive director of the American Conservative Union.