Opinion

One Nation, Under Judges

Asheville – Part I of III

(originally published April 14, 2005) 

The Founders of our nation and those who wrote the Constitution were emphatic about the need for a distinct separation of powers among the various branches of government. Voluminous notes and writings exist dedicated to this very proposition. Federalism–the compact in which each member agrees to subordinate its governmental power to that of the other in certain specified common affairs–lies at the heart of our governmental system and our Constitution.

Yet, what is happening in the United States today is that the Supreme Court and its judicial tentacles have sucked the meaning out of the Constitution and are rewriting a new one in accordance with their own views. They have a hammer lock, a virtual monopoly, on making law by empowering themselves to be the final arbiter of all meanings of the Constitution–even those that empower the other coequal branches of government. And the citizens of the United States stand idle and watch.

The Court today is more than willing simply to ignore Congress and the President, as evident in the recent Terri Schiavo case. Congress issued a subpoena for Terri Schiavo to appear before them, the legal requirement being that she, by law, should be protected until she could do so. The state judge in Florida totally ignored and even mocked the subpoena. Subsequently, Congress and the President signed a law requiring the federal court system to make a “de novo” review of the case–“new, from the beginning”–due to an increasing amount of evidence that was surfacing and had never been considered. The federal courts, for all practical purposes, paid Congress and the President no heed and acted in ways flagrantly indifferent and inimical to the law. 

Not long ago, Congress and the President signed a bill into law declaring that partial birth abortion was illegal. Once again one lone federal judge said no.

Each time the judiciary thwarts the intentions of the legislative and executive functions by blatant and unconstitutional interpretations, evaporation of the co-equality of the federal branches drains the essence of the Constitution. Our lower court judges are constantly making national rulings on matters they have no right to decide, and the Supreme Court fails even to hold them in check.

Thomas Jefferson himself worried about this. In 1820, he wrote to William C. Jarvis:

“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…The constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party its members would become despots…At the establishment of our constitution, the judiciary bodies were supposed to be the most helpless and harmless members of the government. 

In a letter to Adamantios Coray in 1823,  he said: “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…become law by precedent, sapping by little and little the foundations of the constitution, and working its change by construction…In truth, man is not made to be trusted for life if secured against all liability to account.”

Jefferson’s worries were well founded. Over the past two centuries, the elected branches have largely acquiesced to the tyranny of the judiciary. It is the harsh reality of today that the Supreme Court simply looks upon Congress and the President as advisory bodies. Unfortunately the majority of the media and the people do so as well. All look to the judiciary to give them the law. The law and its corresponding rights are now thought to be handed down by the Court.

It was never intended to be this way.

The Declaration of Independence begins with a description of political contract: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitles them […]. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, and that among them are Life, Liberty, and the pursuit of Happiness.”

These are rights that no manmade laws can take away. The people simply lend to their government certain laws for the government to use in carrying out their proper functions. Neither judges nor the government have the right to usurp them and cannot claim ownership of them as they are on loan to the government by the people. The basic principles of our law–truth, justice, and the value of life and individual responsibility–come directly as gifts of the Creator. In addition, the US Constitution starts out by saying “We the People…” not “We the judges…”

Our laws flow as follows: From God to the people, from the people to the Constitution, from the Constitution to our elected government officials, and from our elected government officials to our judicial system to ensure that our laws are in harmony with the Constitution. 

The judges did not write the Constitution, and therefore, they have no right to rewrite it. Amending the Constitution was never a right given by the founders to the judiciary. That right was given to the people. If the framers of our Constitution had wanted to empower the Supreme Court with a legislative veto, they would have done so.

While Mozart had the right to rewrite his orchestral compositions, the critics of Mozart had no such right. The critic had the right to determine if the orchestra was performing them in harmony with what the composer wrote but not to revise the composition or to add new music to what was written.

This would be anathema to what was written and indeed has become so.

Notice that the judicial oath of office, imposed by the legislature, states: “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.” “Agreeably to” means “in harmony with.”

What gave rise to this usurpation of the Constitution by the Court? 

The case that is primarily cited is Marbury v. Madison.

In the Presidential election of 1800, Thomas Jefferson defeated John Adams, becoming the third United States President. Although the election was decided on February 17, 1801, Jefferson did not take office until March 4, 1801. Until that time, Adams and the Federalist-controlled Congress were still in power. Congress passed a new Judiciary Act, creating a number of new courts to be controlled by Federalists.

On March 2, Adams appointed forty-two Federalist judges to these courts while sitting as a lame duck less than a week before the end of his term. The following day, on March 3, the judges were approved by the Senate. One of these “Midnight Judges” was William Marbury, appointed to a position as Justice of the Peace in the District of Columbia. At noon, Adams left office and Jefferson was inaugurated as President.

Marbury’s commission, as well as that of others who were part of the lawsuit, was signed by Adams and John Marshall, his Secretary of State. As a complication of matters, Marshall had been appointed as Chief Justice of the Supreme Court on February 4, but had continued to act as Secretary of State until Jefferson was inaugurated. On March 3, Marshall became Chief Justice and swore in Jefferson.

Jefferson treated as void the forty-two commissions approved on Inauguration Day, including Marbury’s, because they had not been officially delivered by day’s end. He appointed James Madison as the new Secretary, and ordered him not to deliver the Marbury commission.

At this point in the Country’s history, the Supreme Court had very limited powers. Chief Justice Marshall knew that if the Court decided for Marbury, Jefferson would almost certainly ignore the decision—a result that would further erode the court’s authority. Such a result arguably occurred about thirty years later when Marshall ruled in Worcester v. Georgia that states did not have the right to impose regulations on Native American land, and President Andrew Jackson refused to compel the state of Georgia to abide by the decision. He is famously supposed to have said, “John Marshall has made his decision. Now let him enforce it.”

What Marshall finally decided was that, first, Marbury had a right to the appointment and that, secondly, the laws of the country offered him a remedy. The requested remedy was an order (known as a writ of mandamus) directed against James Madison, the new Secretary of State, to transmit the commission to Marbury. It was here that Marshall made his mark. 

The Constitution, the Supreme Court held, confined its original jurisdiction—the ability to hear cases in the first instance—to “all cases affecting ambassadors, other public ministers and consuls, and those in which a state be a party. In all other cases the Supreme Court shall have appellate jurisdiction.” (Not original jurisdiction, as had occurred in this case.)

Marshall reasoned that “if this Court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign.”

Marshall’s opinion simultaneously asserted the Court’s power to hold acts of Congress unconstitutional and yet avoided a direct confrontation with the President. By giving up the power of original jurisdiction in cases not specifically enumerated in the Constitution, it seized the power of judicial review.

Politically, Jefferson was forced into a corner: either agree with the ruling and use it as a justification to continue denying the Midnight Judges their commissions or disagree with the very ruling that legitimized his action.

The Court, by enforcing a constitutional restriction on judicial power, essentially did nothing. Marshall claimed the Court’s right of judicial review simply by having the gumption to claim it. That is all there was to it.

Editor’s note: look for part 2 in next week’s paper.