Judicial Supremacists and the Despotic Branch

The Federalist Papers constitute the definitive explication of our national Constitution. In Federalist No. 32 Alexander Hamilton writes, "[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State." On the subject of federalism, he wrote in No. 81 "...the plan of the [Constitutional] convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States."

In Federalist No. 45, the author of our Constitution, James Madison, notes: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State."

Madison's outline notwithstanding, the scope of activities of the legislative and judicial branches today hardly resemble the limits of our Constitution — yet nothing in its amendments allows that scope.

Concerned for the potential tyranny of the judiciary, Thomas Jefferson warned: "The 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. ... 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. ... 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."

Jefferson continued: "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."

Some 200 years later, they are as dangerous as ever. Notes Justice Antonin Scalia, "As long as judges tinker with the Constitution to 'do what the people want,' instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically."

The time is long overdue for Congress to make amends for failing to check the unbalanced and growing powers being arrogated by these judicial tyrants -- and altering the Senate rules is a good start. But our current circumstances are worse than nearly all analysts are admitting. Not only should conservative judicial nominees be seated, but those judges who are in violation of their oaths of office should be unseated by impeachment. Alas, as Jefferson noted long ago, "We have...[required] a vote of two-thirds in one of the Houses for removing a judge; a vote so impossible where any defense is made before men of ordinary prejudices and passions, that our judges are effectually independent of the nation. ... For experience has already shown that the impeachment it has provided is not even a scare-crow."

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The preceding was adapted from The Federalist Patriot (March 4, 2005).