Mathew D. Staver, J.D. is the Dean of Liberty University School of Law, and Chairman of The Liberty Counsel.
The Following article Judicial Tyranny is from Dean Mathew Staver’s book, Faith & Freedom: A Complete Handbook for Defending Your Religious Rights.
Aristotle once said that inherent in a free society is the ability of the people to debate the question: “How ought we to order our life together?”1 Today we hear a lot of rhetoric that the Bill of Rights is designed to protect the liberties of the minority against the majority. However, our constitutional makeup does not give the minority veto rights over the majority. Certainly the majority cannot trample constitutional rights, but the major political and social questions of our day has by constitutional design been given to the majority through the legislative process. Continually taking away the right of the majority to shape their culture will ultimately result in rebellion. After all, the give and take of the political process provides that the majority voice have final say on major sociological issues. To take away the right of the people to debate the question leads to an oligarchy (government of the few) and results in tyranny.
Basis For Government
The signers of the Declaration of Independence clearly understood the purpose of government. They pinned the following poignant words:
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 Power of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
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, that among these are Life, Liberty, and the pursuit of Happiness.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
That whenever any Form of Government becomes destructive of these ends, is the Right of the People to alter or to abolish it, to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness. . . .But when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for the future security. . . .2
The founders clearly understood that government’s purpose is to preserve life, liberty and the pursuit of happiness. These liberties are God-given. Such liberties predate government and are inalienable,3 meaning that government cannot (at least should not) take away these liberties. The sole purpose of government is to make sure these liberties are protected. Whenever any form of government fails to protect, or in the worse case, affirmatively destroys, these liberties, then it is the right and duty of the people, to alter or abolish that system and to institute a new form of government.
Separation Of Powers
When contemplating a new form of government, the founders envisioned depositing governmental power into three separate branches. The founders clearly feared that if one branch of government accumulated too much power, it would overcome the other two branches of government, thus leading to tyranny. The human experience was itself sufficient reason for separating the powers of government. The founders knew quite well that power corrupts, and absolute power corrupts absolutely. George Washington in his farewell address observed the following:
A just estimate of that love of power, and proneness to abuse it which predominates in the human heart, is sufficient to satisfy us for the truth of this position. The necessity of reciprocal checks in the exercise of political power by dividing and distributing it into different depositories. . . has been [establish].4
Not only must government itself be checked and balanced, but government must also restrain human passion. When putting forth arguments to the people of New York as to why the colonies should adopt a constitution, Alexander Hamilton wrote: “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.”5
The founders envisioned three separate branches of government which included the Executive, the Legislative and the Judiciary. The weakest branch of government was supposed to be the Judiciary, but today it has become the strongest branch. Indeed, not until 1935 did the United States Supreme Court find a permanent home in Washington, D.C. Prior to its present location, it met in the basement of the Senate. Alexander Hamilton described the three branches of government as follows:
The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary 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 whatsoever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgements.6
As Alexander Hamilton noted, the executive carries the sword, the legislature holds the purse, and the judiciary merely exercises judgment. However, the judiciary is ultimately dependent upon the aid of the executive even for the efficacy of carrying out its judgments. In other words, the judiciary can issue an opinion, but that opinion has no power without the aid of the executive to enforce that opinion.
As originally envisioned, the judiciary was not only the weakest branch of government but was the least dangerous threat to political liberty. Again, Alexander Hamilton pointed out the following:
[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will least in capacity to annoy or injure them. . . . [T]he judiciary is, beyond comparison, the weakest of the three departments of power. . . . [T]he general liberty of the people can never be endangered from that quarter.7
Why did Alexander Hamilton believe the judiciary could never threaten the liberties of the people? The judiciary was set up to decide cases and controversies — to solve disputes between parties. The judiciary could not execute its judgments, it could simply render them. The executive has the duty, and the discretion, to carry out a judicial decree. As originally established, the judiciary was only reactive, deciding cases and controversies that were brought to its attention. These cases or controversies ultimately resolve the disputes between the parties, and would not necessarily apply to the populous in general. The judiciary could not levy taxes or create new law. The judiciary was charged with the task of applying existing law to resolve a case or controversy. Speaking of the Judiciary, Montesquieu stated that “of the three powers. . ., the Judiciary is next to nothing.”8
James Madison understood how liberty could be undermined if too much power were exercised by the judiciary.
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.9
Today it has become common place for the judiciary to strike down “popular measures of the legislature.” In 1996, the United States Supreme Court struck down Colorado’s Amendment 2 which provided an amendment to the state constitution that would prohibit giving special rights to homosexuals.10 In 1995 a federal court found unconstitutional a voter approved California initiative withholding welfare benefits from illegal aliens,11 and in 1996 another federal court found unconstitutional another California voter approved initiative.12 The latter voter initiative abolished affirmative action, and therefore in essence stated that instead of preference based on skin color, the state would now treat its citizens equally. Amazingly, a federal court found that a voter approved amendment requiring that all people be treated equally regardless of skin color violated Equal Protection under the United States Constitution. A later court reversed this decision.13 In a desegregation case, a federal court ordered that property taxes be increased to fund a desegregation program.14 Though the United States Supreme Court later ruled that the federal court overstepped its authority,15 the mere fact that a court even thought of the possibility of raising taxes is incomprehensible.
Some of the founders feared that the judicial branch contained the potential root of tyranny. Thomas Jefferson once wrote:
[T]he germ of disillusion of our federal government is in the [composition] 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 with a field of jurisdiction until all shall be usurped.16
Thomas Jefferson considered the three branches of government to be coordinate. In other words, he did not assume that the judiciary exercised the sole providence to interpret the Constitution or to determine what laws are constitutional. In this respect he observed the following:
[T]he opinion that 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.17
Indeed, “to consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . .The Constitution has erected no single tribunal.”18
Thomas Jefferson felt that to protect liberty, the people in mass must have opportunity to decide the important question of the day. He observed:
It should be considered an axiom of eternal truth in politics that whatever power in any government is independent is absolute . . . . Independence can be trusted no where but with the people in mass.19
James Madison, the architect of the Bill of Rights, feared that if one branch of government accumulated too much power, the result would be tyranny.
The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elected, may justly be pronounced the very same definition of tyranny.20
The Problem
Interestingly, the United States Supreme Court once declared that the “Federal Constitution does not give this Court the power to overturn the State’s choice under the guise of constitutional interpretation because the Justices of this Court believe that they can provide better rules.”21 However, that is exactly what the justices of the Supreme Court and judges of other courts do everyday. Therein lies the problem. In 1803 Supreme Court Justice John Marshall penned these now famous words: “It is, emphatically, the province and duty of the judicial department to say what the law is.”22 Sometime after the famous Marbury v. Madison decision, the Supreme Court again resurrected John Marshall’s words in the famous case of Cooper v. Aaron, where the Court stated that the Marbury
decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.23
There are several problems inherent in the judicial branch. First, the federal judiciary is appointed, not elected. Once appointed, they are essentially appointed for life unless subsequently impeached. The federal judiciary is an unelected body precisely because it is supposed to be independent of, and not necessarily swayed by, popular political opinion. Generally this would work fine if the judiciary would exercise self restraint, and interpret, rather than create law. However, if the judicial branch has the ultimate responsibility of interpreting the meaning of the Constitution, then the judiciary will always have a trump card on the other two branches of government. If the branch which interprets the law has final word over the branch that creates the law, then the branch that creates the law is essentially irrelevant because no matter what is created, the judiciary can interpret it differently. Since the judiciary has evolved to this power platform over time, it has gradually taken away the opportunity from the people to debate the social issues of our day. All the major social and political questions of our time are now decided by the judiciary, not by the people in mass. For example, a single state court judge ruled that prohibiting same sex marriage is unconstitutional under the State of Hawaii’s constitution.24 The judge accepted testimony that there was no difference between homosexual and heterosexual marriage, and consequently there was no reason under Hawaii’s equal protection clause of the state constitution to deny a marriage license to homosexuals.
As noted above, notwithstanding the fact that 53% of the Colorado voters adopted Amendment 2 which prohibited special treatment based upon sexual orientation, the United States Supreme Court found the state constitutional amendment to be contrary to the federal Constitution.25 Justice Antonin Scalia in dissent criticized the Court for assuming a political role.
Today’s opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not a judicial judgment, but of political will.26
Justice Scalia did not think it was any “business of the courts (as opposed to the political branches) to take sides in this culture war.”27 However, the Court did take sides.
A federal court found unconstitutional a Washington statute that made it a felony to knowingly aid another person to commit suicide.28 In dissent, one of the judges stated the following:
The Supreme Court has never recognized a substantive due process right without first finding that there is a tradition of protecting a particular interest. Here, there is absolutely no tradition of protecting assisted suicide. Almost all states forbid assisted suicide and some states even permit the use of nondeadly force to thwart suicide attempts. No state has ever accepted consent of the victim as a defense to a charge of homicide. These are the political judgments made by the democratic process; if they are no longer “politically correct,” let the legislatures act to change them, not life-tenured judges immune from the voters’ reach.29
We have already noted how two federal courts in California struck down voter approved initiatives and how another court in Missouri attempted to impose property taxes. In one case a California state court found no constitutional right for a widow to refuse to rent to unmarried couples despite her religious convictions to the contrary.30 After the widow lost her hearing before the Fair Employment and Housing Commission, she was required to put a poster on her rental property acknowledging her alleged “wrong.” Essentially the State of California attempted to humiliate this widow for her sincerely held religious convictions.
In another case, a federal court found no constitutional right for parents to receive prior notification when their children were subjected to explicit sexual conduct.31 The organization, Hot, Sexy and Safer, was invited to the school where students were directed to go to an auditorium. There the organization carried on extreme sexual vulgarities, most of which can not even be printed in this book. Some of the activities included placing lifesize condoms over a person’s entire body and then licking the condom. The presenters brought certain students to the platform and commented on their clothing, their various sexual organs, and ways to arouse another person. Concerned parents sued over this mental rape, stating that they should be notified prior to their children being subjected to such sexually explicit behavior. However, a federal court found the parents did not have such a right and instead ruled in favor of the school.
Possible Remedies for Curing Judicial Tyranny
Congressional Limitation Of Jurisdiction
Some have suggested that the legislature should limit the jurisdictional power of the federal courts. Article III, Section 2, Clause 2 of the United States Constitution states:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall have appellate Jurisdiction, both as to Law and Fact, with such exceptions, and under such Regulations as the Congress shall make.
Congress may impart as much or as little of judicial power as it deems appropriate, and the judiciary may not thereafter on its own motion refer to this article for additional jurisdiction.32 Congress has the power to invest inferior federal courts33 with all or any part of the federal judicial power and to withdraw at any time all or part of the jurisdiction which it has conferred upon them.34 Congress need not establish any inferior federal courts and it might take all jurisdiction from them if it so desired.35 The inferior federal courts are creatures of Congress and can exercise only such jurisdiction as Congress confers on them, and Congress in its unfettered discretion may withhold or take away their jurisdiction.36
However, the exercise by Congress of its control over jurisdiction is subject to compliance with at least the requirements of the Fifth Amendment, which is to say that while Congress has undoubted power to give, withhold and restrict jurisdiction of courts other than the Supreme Court, it must not so exercise that power as to deprive any person of life, liberty or property without due process of law or take private property without just compensation.37
Everyone would agree that Congress has the authority to create new courts. If Congress can actually create a new federal court, then it can abolish the court. If it can abolish the court, then it can limit the court’s jurisdiction. Some cases that have not been made federal questions, can be made federal questions through legislative enactment, and it is possible that other cases might be removed from federal jurisdiction. The big question to consider here is whether certain issues such as sexual orientation, abortion, and euthanasia could ultimately be removed from federal court jurisdiction. While it may be possible to limit jurisdiction of these subjects among inferior federal courts, Congress probably has less power to withdraw the Supreme Court’s jurisdiction. Since Congress cannot take away the Supreme Court’s power to decide constitutional questions, and since Congress has no authority over state courts, these constitutional questions would eventually reach the Supreme Court through the state court system. State courts are empowered to rule on federal constitutional questions, and the United States Supreme Court may review their decisions.38
Term Limits For Federal Judges
Another suggested remedy is to place term limits on judges much like term limits for the legislature. Article III, Section 1 of the United States Constitution states:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, as stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Some scholars, such as Professor Sanford Levinson of the Boston University Law School, have advocated term limits for federal judges. Professor Levinson suggests a term of 18 years for Supreme Court justices and 12 to 14 years for district and appeals court judges.
Supermajority To Overturn Statutes
Professor Richard Duncan of the University of Nebraska College of Law has suggested amending the Constitution to require 7 votes of the Justices to declare state or federal legislation unconstitutional. His reasoning is that the will of the people should prevail unless there is a strong consensus on the Court that the Constitution has been violated. If a supermajority was required, Colorado’s Amendment 2 would never have been ruled unconstitutional.
Impeachment
There are several constitutional provisions that directly or indirectly discuss impeachment. Included are the following:
The Senate shall have power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief-Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present. Judgement, in cases of impeachment, shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law.39
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The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.40
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The trial of crimes, except in cases of impeachment, shall be by jury.41
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[The president] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.42
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The Judges, both of the Supreme and Inferior Courts, shall hold their office’s during good behavior.43
To date, sixty-one judges have been investigated. Thirteen have been impeached. There have been three non-judicial impeachments.44 When discussing impeachment, the question must be answered as to what is the basis to impeach a judge. Justice Joseph Story observed the following:
[W]hat are to be deemed “high crimes and misdemeanors”?. . . [N]o one has yet been bold enough to assert that the power of impeachments is limited to offenses positively defined in the statute book of the Union as impeachable high crimes and misdemeanors.45
Justice Story penned the following regarding the ability of Congress to undertake impeachment activities:
Congress has unhesitatingly adopted the conclusion that no previous statute is necessary to authorize an impeachment for any official misconduct. . . . In the few cases of impeachment that hitherto have been tried, not one of the charges has rested upon any statutable misdemeanors.46
Examples of impeachment include the following:
● In 1797, William Blount was impeached for seeking to violate American neutrality. According to Justice Story, the offense charged was not defined by any statute of the United States but was for an attempt to seduce United States’ indian interpreters from their duty and to alienate the affections and confidence of the indians from the public officers residing among them.
● In 1803, Federal Judge John Pickering was impeached for issuing an order which contradicted an Act of Congress, for judicial high-handedness, drunkenness, and blasphemy.
● In 1804, Supreme Court Justice Pamela Chase was impeached for judicial high-handedness and for excluding evidence from a trial.
● In 1830, Federal Judge James H. Peck was also impeached for judicial high-handedness.
● In 1862, Federal Judge West H. Humphreys was impeached for supporting the secession movement.
● In 1868, President Andrew Johnson was impeached for removing and replacing the Secretary of War.
● In 1876, Secretary of War William W. Belknap was impeached for bribery.
● In 1904, Federal Judge Charles Swayne was impeached for financial improprieties and judicial high-handedness.
● In 1912, Federal Circuit Judge Robert W. Archibald was impeached for judicial high-handedness and misconduct.
● In 1926, Federal Judge George W. English was impeached for judicial high-handedness and for profanity.
● In 1933, Federal Judge Harold Lauderback was impeached for seeking to hide his assets during a personal divorce proceeding.
● In 1936, Federal Judge Halsted L. Ritter was impeached for corruption and income tax evasion.47
Today many people assume that impeachment is only for situations where a judge commits some heinous civil or criminal violation. However, then representative Gerald Ford, when considering impeachment proceedings against Justice William Douglas, correctly observed that impeachment is not limited to a previously defined civil or criminal penalty.
An impeachable offense is whatever the majority the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.48
Therefore, if Congress concluded that a judge overstepped judicial boundaries by attempting to become a superlegislator, that is an impeachable offense. Whatever Congress deems to be an impeachable offense is an impeachable offense regardless of whether the activity violates any civil or criminal statute.
Congressional Check On Supreme Court
In his recent book, Judge Robert Bork argues that the Supreme Court has become the agent of modern liberalism. Judge Bork observed the following:
It will be extremely difficult to defend traditional values against intellectual class onslaught. Not only do the intellectuals occupy the commanding heights of the culture and the means by which values and ideas are created and transmitted, they control the most authoritarian institution of American government, federal and state judiciaries, headed by the Supreme Court of the United States. The courts have increasingly usurped the power to make our cultural decisions for us, and it is not apparent that we have any means of redress.49
Judge Bork does not believe that limiting the jurisdiction of federal courts is a viable alternative. He reasons that even if all federal lower courts were abolished, the same kind of cases would still reach the United States Supreme Court on appeal from state courts.50 Judge Bork concludes therefore that there is only one alternative:
There appears to be only one means by which the federal courts, including the Supreme Court, can be brought back to constitutional legitimacy. That would be a constitutional amendment making any federal or state court decision subject to being over-ruled by a majority vote of each house of Congress. The mere suggestion of such a remedy is certain to bring down cries that this would endanger our freedoms. To the contrary, as already noted, it is the courts that are not merely endangering our freedoms but actually depriving us of them, particularly our most precious freedom, the freedom to govern ourselves democratically unless the Constitution actually says otherwise. The United Kingdom has developed freedoms without judicial review.51
Executive Refusal To Enforce Court Decisions
A final way to consider reigning in judicial power is for the executive branch not to enforce court decisions. This is also called the doctrine of nonacquiescence. It is precisely this issue that took place in Alabama where one state court ruled that state court Judge Roy Moore must remove the Ten Commandments from his courtroom wall. In defiance, Governor Fob James stated that he would call out the National Guard if anyone tried to remove the Ten Commandments. He is practicing the doctrine of nonacquiescence, and though it may seem radical today, it was not so radical to our founding fathers.52
Several of the founding fathers believed in three coordinate branches of government. That is, these three branches of government each had an independent duty to interpret and uphold the Constitution. One branch of government did not have the sole authority to interpret the Constitution either for itself or for the other branch. Each branch was sworn to the duty to uphold the Constitution, although each branch had certain functions. To allow one branch the sole authority to interpret the Constitution for another would allow that branch to have autonomy over the opposing branch. In this regard, James Madison noted the following:
[T]he people are the only legitimate fountain of power, and it is from them the constitutional charter, under which the several branches of government hold their power, is derived. . . . The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between the respective powers.53
According to Professor Paulsen,
The premise of coordinancy, as articulated by Madison, implies that no branch has final interpretive authority, but that each branch has interpretative authority within the sphere of its other constitutional powers; the resolution of disputed points depends on the pull-and-tug of the different branches, just as the Constitution’s separation of powers in other respects works to preserve a system of checks and balances. The coordinancy principle thus implies that the executive branch — that is the Presidency — has completely independent interpretive authority within the sphere of its powers.54
The coordinancy concept can be illustrated when President Thomas Jefferson pardoned individuals convicted under the federalist-backed Sedition Act of 1798. This law forbade seditious libel against the government. A number of people were convicted under this Act. Notwithstanding the fact that Federalists judicial decisions upheld the constitutionality of the Sedition Act, President Jefferson pardoned those convicted under the Act on the basis that it was unconstitutional. John Adams had been President at the time that the Act was adopted and enforced, and out of respect, he wrote a letter to Abigail Adams justifying his pardons as follows:
You seem to think that it devolved on the judges to decide on the validity of the sedition law. Nothing in the Constitution has given them a right to decide for the Executive, more than the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. . . .[T]he opinion which gives to judges the right to decide what laws are constitutional, and what not, not only for themselves and their own sphere of action, but for the legislature and executive also in their spheres, would make the judiciary a despotic branch.55
In 1832, President Andrew Jackson vetoed legislation that attempted to recharter the Bank of the United States. Despite the fact that the United States Supreme Court rejected similar constitutional challenges on the question of whether Congress had power to create a national bank,56 he nevertheless vetoed the bill on the basis of his own constitutional objections. In his veto message he penned the following:
The Congress, the Executive and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. . . . The opinion of the judges has no more authority over Congress then the opinion of Congress has over the judges, and on that point the President is independent of both.57
While running as a candidate for the United States Senate in 1858, Abraham Lincoln declared his opposition to the infamous Dred Scott decision.58 Lincoln boldly declared that he would not be bound by the Dred Scott decision if he were elected to the U.S. Senate:
We oppose the Dread Scott decision. . . as a political rule, which shall be binding on the voter. . . . We propose so resisting as to have it reversed if we can, and a new judicial rule established upon this subject.59
When Abraham Lincoln later became President, he was more forthright in his opposition to the Dred Scott decision during his First Inaugural address:
[T]he 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 people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.60
President Lincoln then took active steps to oppose Dred Scott. He directed that patents and visas be given to black citizens.61 This action by the President was in direct defiance of Dred Scott. The Supreme Court had previously ruled that blacks were not citizens under the Constitution, but President Lincoln treated blacks as though they were vested with full rights of citizenship. He therefore defied the Supreme Court’s opinion on this matter.
President Lincoln’s belief in the autonomy of the Executive did not stop with his opposition to Dred Scott. In the spring of 1861, in response to Lincoln’s election, a number of southern states seceded from the Union. These secessionist activities became rampant around the State of Maryland. Washington, D.C. was surrounded by Confederates. Responding to increased secessionist violence in Maryland, Lincoln suspended the writ of habeas corpus.62 Congress was apparently out of session at that time and therefore Lincoln took it upon himself to suspend the writ. Shortly thereafter a large number of suspected secessionists were arrested and imprisoned at Fort McHenry in Baltimore. One of those arrested was named John Merryman, a state legislator and lieutenant in a secessionist calvary. Merryman called upon Chief Judge Roger Taney, the author of the Dred Scott decision, to issue a writ of habeas corpus.63 On May 26, 1861, Justice Taney issued a writ directed to the commanding officer at Fort McHenry. However, General George Cadwalader refused to produce Merryman, instead relying upon Lincoln’s order. Taney then directed that an attachment be issued against General Cadwalader for contempt, but service of the writ was refused at the gate of Fort McHenry.
The following day, May 28, 1861, Judge Taney issued his ruling from the bench declaring that President Lincoln had no power to suspend the writ of habeas corpus as such power was implicitly vested in Congress by virtue of its location in Article I of the Constitution. He also ruled that John Merryman should be set free and that General Cadwalader was in contempt. He then noted that the U.S. Marshall had authority to summon the posse to aid him in seizing the General to bring him before the court, but because he reasoned that the posse would be met by a superior force authorized by President Lincoln, he felt that there was no point in proceeding. Judge Taney then concluded: “I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome.”64
Following the conflict between the Executive and the Judiciary over the arrest of John Merryman, Lincoln directed Attorney General Bates to develop a broader argument to defend the President’s actions. Attorney General Bates issued an opinion on July 5, 1861, the day after President Lincoln’s address, and developed an argument based upon the principles enunciated by James Madison. Bates wrote that the American people were “actuated by a special dread of the unity of power” and therefore adopted a system in which no one branch of government had “sovereignty.”65 Bates then penned the following:
These departments are co-ordinate and coequal — that is, neither being sovereign, each is independent in its sphere, and not subordinate to the others, either of them or both of them together. . . . [I]f we allow one of the three to determine the extent of its own powers, and also the extent of the powers of the other two, that one can control the whole government, and has in fact achieved the sovereignty.
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Our fathers, having divided the government into coordinate departments, did not even try (and if they had tried would probably have failed) to create an arbiter among them to adjudge their conflicts and keep them within their respective bounds. They were left . . . each independent and free, to act out its own granted powers, without any ordained or legal superior possessed in the power to revise and reverse its action. And this with the hope that the three departments, mutually coequal and independent, would keep each other within their proper spheres by their mutual antagonism — that is, by the system of checks and balances, to which our fathers were driven at the beginning by their fear of the unity of power.66
In defying the Supreme Court, President Lincoln exercised what might be termed coordinancy, or nonacquiescence. As James Madison observed,
The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves; who, as the granters of the commission, can alone declare its true meaning and force its observance?67
Though Madison recognized that ordinarily the exposition of the laws and the Constitution falls to the judiciary, he did not feel this excluded independent interpretive power by the other two branches.
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? . . . If the Constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point. . . .68
In an unpublished letter, James Madison penned the following noteworthy commentary:
As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise in its functions, be guided by the text of the Constitution according to its own interpretation of it; and, consequently, that in the event of irreconcilable interpretations, the prevalence of the one or the other department must depend on the nature of the case, as receiving its final decision from the one or the other, and passing from that decision into effect, without involving the functions of any other.69
James Wilson once noted that “whoever would be obliged to obey a constitutional law is justified in refusing to obey an unconstitutional act of the legislature. . . . [W]hen a question, even of this delicate nature, occurs, everyone who is called to act, has a right to judge.”70
The proposition of coordinancy, or nonacquiescence, may sound strange to modern jurisprudence. It certainly presents a give and take, or pull and tug concept. Under the coordinancy system, there may be times when the individual branches of government disagree on constitutional interpretation. Such disagreements occurred during the term of Thomas Jefferson, Abraham Lincoln, and Andrew Jackson. However, over time, the disagreements became agreements. Ultimately the courts agreed with Thomas Jefferson that the Sedition Act was unconstitutional. The Supreme Court also later agreed with Abraham Lincoln that its Dred Scott decision was erroneous. The dynamic of inherent tension at least allows the question to be debated. There may be a time when there is no resolution of the answer, but the fact that the question is being debated is more important than the answer to the question. It is certainly better than being ruled by an oligarchy living in a state of tyranny. When the liberties of the people are given one day and taken away the next by five unelected judges,71 then our liberties are indeed fragile, depending more on the whim of a few individuals than upon immutable constitutional principles. Something must be done to prevent judicial tyranny. The judiciary must be thwarted in its effort to swallow up the other two branches of government. If the trend toward judicial supremacy over the other two branches continues, then there is no question that our Republican form of government has been exchanged for an oligarchy. The result is nothing less than tyranny.
1The Editors, The End of Democracy? The Judicial Usurpation of Politics, FIRST THINGS, November 1996, p. 18.
2 Declaration of Independence, July 4, 1776, The Organic Laws of the United States of America.
3 Or, as the signers of the Declaration said, “unalienable.”
4 Farewell Address of George Washington 22 (1796).
5 Alexander Hamilton, The Federalist, No. 15.
6 Alexander Hamilton, The Federalist, No. 78.
7 Id.
8 Montesquieu, 1 Spirit of Laws 186.
9 James Madison, 2 The Papers of James Madison 1161-1171, quoting Luther Morton at the Constitutional Convention on July 21, 1787.
10 Romer v. Evans, 116 S. Ct. 1620 (1996).
11 League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995).
12 Coalition for Economic Equity v. California, 946 F. Supp. 1480 (N.D. Cal. 1996).
13 Coalition for Economic Equity v. Wilson, 110 F.3d 1431 (9th Cir. 1997), superseded, California v. Coalition for Economic Equity, 122 F.3d 692 (9th Cir. 1997).
14 Missouri v. Jenkins, 672 F. Supp. 400 (W.D. Mo. 1987).
15 Missouri v. Jenkins, 110 S. Ct. 109 (1990).
16 Albert Ellerybergh, ed., 14 Writings of Thomas Jefferson, 331-332. Thomas Jefferson to Charles Hammond on August 18, 1821.
17 11 Writings of Thomas Jefferson 50-51. Thomas Jefferson to Abigail Adams on September 11, 1804.
18 14 Writings of Thomas Jefferson 277. Thomas Jefferson to William Charles Jarvis on September 28, 1820.
19 14 Writings of Thomas Jefferson 213-214. Thomas Jefferson to Judge Spencer Roane on September 6, 1819.
20 James Madison, The Federalist No. 47.
21 Labine v. Vincent, 401 U.S. 532 (1971).
22 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). It should be pointed out that there were two views of the judiciary. One view was that the judiciary should be an extremely weak branch of government, but others viewed the judiciary as a stronger body, albeit not nearly as powerful as it is today. Supreme Court Justice Joseph Story who died in 1835, stated the following:
The decision then made, whether in favor or against the constitutionality of the act, by the State or by the national authority, by the legislature or by the executive, being capable, in its own nature, of being brought to the test of the Constitution, is subject to judicial revision. It is in such cases, as we conceive, that there is a final and common arbiter provided by the Constitution itself, to whose decisions all others are subordinate; and that arbiter is the supreme judicial authority of the courts of the Union.
Joseph Story, 2 Commentaries on the Constitution of the United States 266-67 (1833) (footnote omitted).
23Cooper v. Aaron, 358 U.S. 1, 18 (1958). See also Baker v. Carr, 369 U.S. 186, 210-11 (1962) (referring to the “responsibility of this Court as ultimate interpreter of the Constitution”); Powell v. McCormack, 395 U.S. 486, 549 (1969) (“[I]t is the responsibility of this Court to act as the ultimate interpreter of the Constitution”); United States v. Nixon, 418 U.S. 683, 704 (1974) (speaking of the “responsibility of this Court as ultimate interpreter of the Constitution”).
24 Baehr v. Miike, 65 U.S. L. Weekly 2399 (Cir. Ct. Hi. 1996).
25 Romer, 116 S. Ct. at 1620. Though not specifically elevating sexual orientation to a class status such as sex or race status, the Supreme Court certainly elevated the status of homosexuals. As such, the Court planted the seed which may later develop into a recognition that homosexuals must be treated as a special class just like race or gender.
26 Romer, 116 S. Ct. at 1637 (Scalia, J., dissenting).
27Id.
28 Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1994). See also Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996).
29 Compassion in Dying v. Washington, 85 F.3d 1440, 1445 (9th Cir. 1996).
30 Smith v. Fair Employment and Housing Commission, 913 P.2d 909 (Cal. 1996).
31 Brown v. Hot, Sexy and Safer, 68 F.3d 525 (1st Cir. 1995).
32 Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.C.D.C. 1973).
33 Inferior federal courts refers to federal district and appellate courts. The term does not refer to the United States Supreme Court.
34 Eldridge v. Richfield Oil Corp, 247 F. Supp. 407 (D.C. Cal. 1965), aff’d, 364 F.2d 909 (9th Cir. 1966), cert. denied, 385 U.S. 1020 (1967).
35 McCann v. Paris, 244 F. Supp. 870 (D.C. Va. 1965); Harlan v. Pennsylvania R. Co., 180 F. Supp. 725 (D.C. PA. 1960).
36 Henderson v. Kimmel, 47 F. Supp. 635 (D.C. Kan. 1942).
37 Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948), cert. denied 335 U.S. 887.
38 Judge Robert Bork states that limiting federal court jurisdiction will accomplish little precisely because the same issues will still work their way to the Supreme Court through the state court system. Robert H. Bork, Slouching Towards Gomorrah 115-16 (1996).
39 U.S. Const. Art. I, sec. 2, 5-7.
40 U.S. Const. Art. II, sec. 4.
41 U.S. Const. Art. III, sec., 2,
42 U.S. Const. Art. II, sec. 2,
43 U.S. Const. Art. III, sec. 1,
44 David Barton, Impeachment!
45 Joseph Story, 2 Commentaries on the Constitution 263, 265 (1833).
46 Id. at 267.
47 David Barton, Impeachment! 23-25 (1996).
48 Robert A. Diamond, Impeachment in the U.S. Congress, ed. CONGRESSIONAL QUARTERLY, INC. 6-7 (1934) (quoting representative (later President) Gerald Ford when proposing the impeachment of Supreme Court Justice William Douglas).
49 Robert H. Bork, Slouching Towards Gomorrah 95 (1996).
50 Id. at 115-16.
51 Id. at 117.
52 For a thorough discussion of this issue, see Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 CARDOSO L. REV. 81 (1993) and Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 No. 2 GEORGETOWN L.J. 217 (1994). This section of the chapter is heavily indebted to the material compiled by Professor Paulsen.
53 James Madison, The Federalist No. 49.
54 Paulsen, The Merryman Power, 15 CARDOSO L. REV. at 85 (footnote omitted).
55 Thomas Jefferson, 11 Writings of Thomas Jefferson 50-51. Thomas Jefferson to Abigail Adams on September 11, 1804.
56 McCullouch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
57 Andrew Jackson, Veto Message (July 10, 1832), reprinted in 2 A Compilation of the Messages and Papers of the Presidents, 1789-1897, 582.
58 Dred Scott v. Sandford, 19 How. 393 (1857) (declaring that blacks were not considered citizens under the United States Constitution).
59 Abraham Lincoln, Speech At Sixth Joint Debate with Stephen A. Douglas, Quincy, Ill., 3 (October 13, 1858), in Collected Works of Abraham Lincoln, 255.
60 Abraham Lincoln, First Inaugural Address (March 4, 1861), reprinted in 4 Collected Works of Abraham Lincoln, 268.
61 Paulsen, The Merryman Power, 15 CARDOSO L. REV. at 88.
62 Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties 8 (1991).
63 Paulsen, The Merryman Power, 15 CARDOSO L. REV. at 90.
64 Ex parte Merryman, 17 F. Cas. 144, 147 (C.C.D. Md. 1861) (No. 9487).
65 10 Op. Att’y A Gen. 74, 76 (1861).
66 Id. at 76-77.
67 James Madison, The Federalist No. 49.
68 1 Annals of Cong. 500 (Joseph Gales ed., 1789).
69 James Madison, Unaddressed Letter of 1834, In 4 Letters and Other Writings of James Madison 349.
70 1 The Works of James Wilson 168 (Robert Green McCloskey ed., 1967) (taken from LECTURES ON LAW, 1791).
71 There are presently nine justices on the United States Supreme Court. The Court only needs five of the nine to make a majority.
Embrace Israel thanks Dean Mathew D. Staver for permission to publish this chapter from his book Faith and Freedom.
Faith and Freedom: A Complete Handbook for Defending Your Religious Rights, Second Edition Copyright © 1995, 1998 Mathew D. Staver, Published by Liberty Counsel, PO Box 540774, Orlando, Florida 3285
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