Today’s judiciary has unquestionably become the most powerful of our three branches of government, creating policy on everything from the environment to religious expression. Interestingly, however, this type of policy-making was never intended under the Constitution. This is made clear in the “Federalist Papers”.
For example, “Federalist #51” declares that “the Legislative authority necessarily predominates” and “Federalist #78” explains not only that “the Judiciary is beyond comparison the weakest of the three departments of power” but also that “the general liberty of the people can never be endangered from that quarter.”
Such declarations were reflective of our Founders’ hearty distrust of a too-powerful judiciary. For example, Thomas Jefferson warned if unelected judges ever became the final authority on policy issues, the Constitution would then become a “thing of wax in the hands of the judiciary” which they would “twist and shape into any form they please.”
As he reminded one official, “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.”
Therefore, to ensure the judiciary never prevailed over the legislature— the Constitutional policy-making body-the Constitution furnished what Federalist #73 described as “constitutional arms” for the “effectual powers of self-defense.”
What are some of the “arms” the Constitution provides congress to defend itself?
First, the Constitution subjects many functions and operations of the judiciary to the congress. For example, all federal courts except the Supreme Court exist only by the will of Congress (see Art. III, Sec. 1, 1; Art. I, Sec. 8, 9); only the Supreme Court enjoys the protection of the Constitution. Congress may at any time abolish every federal court (except the Supreme Court) or it may create as many federal courts as it wishes.
Congress is also given the “exceptions clause” (Art. III, Sec. 2, 2) by which it may determine the issues to come before the courts.
Very simply, congress may pass laws to withhold an area of jurisdiction from the court. For example, following the Civil War and the court’s infamous Dred Scott decision, congress removed certain Reconstruction issues from the court’s jurisdiction so the court could not thwart the will of congress on those issues.
Congress has used this power on other occasions as well. Additionally, Congress may remove offensive or over-reaching judges through impeachment (Art. I, Sec. 2, 9; Art. I, Sec. 6, 6-7).
Significantly, while today’s defenders of judicial activism often assert that a judge can be impeached only for criminal acts, the Founders emphatically disagreed. For example, Chief-Justice John Marshall commented that “a judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment”; Justice James Wilson (a signer of the Constitution and an original justice on the Supreme Court) declared impeachment was for “political crimes and misdemeanors”; and Justice Joseph Story (appointed by President James Madison) explained that “The offenses to which the power of impeachment [apply]. . . . are aptly termed political offenses, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests.”
These standards existed because the Constitution states that judges can hold their offices only during “good behavior” (Art. III, Sec. 1, 1)-if their behavior was inappropriate, they were removed. And so it was that in 1803, a judge was impeached for contradicting Congress, for blasphemy, and for drunkenness; in 1804, a judge was impeached for rudeness to witnesses; in 1926, a judge was impeached for profanity; etc.
Interestingly, while the Constitution places many of the operations of the judiciary under the supervision of congress, a reciprocal power is not granted. This was part of the founders’ design to keep the people and the legislature superior in power to the judiciary.
In fact, James Madison declared that to make “the judiciary department paramount to the legislature was never intended and can never be proper”; Constitution Signer Rufus King similarly warned that “the judges . . . ought not to be legislators”; and Alexander Hamilton explained that the judiciary was forbidden to “substitute [its] own pleasure to the constitutional intentions of the legislature.”
The reason for this, as explained by President Washington, was that “the fundamental principle of our Constitution . . . enjoins [requires] that the will of the majority shall prevail.” In short, the legislature, not the judiciary, was to make policy, for as Samuel Adams explained: “[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.”
While the judiciary is a vital part of our government, and while it does have important functions specified by the Constitution, public policy-making is not one of those functions.
Some may argue this reading of the Constitution undermines the so-called “independence of the judiciary” and thus makes the judiciary a “political” branch.
Yet, who can honestly argue that the judiciary has not already become a political branch?
Whether on school prayer, homosexuals in the military, partial-birth abortions, physician-assisted suicides, obscenity and morality, or a cadre of other issues, the judiciary regularly sets forth its own political policies in opposition to the strongly expressed will of a vast majority of Americans.
Even though the Constitution does provide protections for the independence of the judiciary (i.e., that Congress cannot diminish a judge’s salary during his service, and that the removal of a judge requires a two-thirds vote by the senate), today’s often-invoked “independence of the judiciary” phrase is little more than hollow rhetoric used to excuse and protect activist judges.
As Thomas Jefferson wisely reminded us, “It should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent is absolute also. Independence can be trusted nowhere but with the people in mass.”
The founders would be stunned by both the position and the power of today’s judiciary.
The protections they so carefully crafted are now ignored.
In fact, a foreign observer in modern America today would likely conclude that the President, the federal congress, and state legislatures have taken oaths to uphold the court’s opinion of the Constitution.
The people, not the courts, must control their own destiny; reforms must be guided by the people rather than by the social engineering of an elite few.
We must reclaim our right to be a republic, returning the judiciary to its proper position, the least of three co-sovereign branches.
The examples provided by our founders of how to respond to overactive courts are worthy of emulation today.
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