AMERICA’S PROBLEM WITH JUDICIAL SUPREMACY
L. B. HOBBS
What is Judicial Supremacy
Judicial supremacy (sometimes called judicial review) is the belief that the Judicial branch of government has the supreme and sole right to interpret the Constitution and to bind that interpretation on the Legislative and Executive branches, as well as all citizens.
Most of us grew up hearing: “Decisions of the Supreme Court constitute the law of the land.” The premise has been generally accepted without examination. But is it accurate? Is it constitutional? Beneficial or dangerous? Does it really affect us? Can we do anything about it?
Increasingly, judicial power has been used to make law, not to interpret it, prompting Professor William Forrester, former dean of Cornell Law School, to refer to the Supreme Court as the “Legiscourt.”
This law-making role of the robed elite is evident in many decisions:
Busing for racial balance has been forced on communities, even though Congress rejected it.
Abortion was legalized, reversing centuries of national respect for the sacredness of human life, including the pre-born.
A father (married or unmarried) has no jurisdiction over the fate (life or death) of his unborn child.
In what has been called the first “federal takeover of a city,” a federal judge ruled on June 5, 1980; that Parma, Ohio, must provide 300 units of low-income housing annually. According to a Cleveland attorney, the Justice Department has filed similar suits in several other states.
Pending in the Supreme Court is a suit involving women in military service. The decision of Congress to register men, but not women, is being challenged.
Federal judges now regulate many activities of other lives that once were felt to be none of their business. As examples, courts have ruled that males must be allowed to compete with males in athletics, halted construction of a dam to preserve an endangered species of fish, banned school dress codes and blocked suspension of students. Courts have taken over the operation of school in Boston and prisons in Alabama. In short, decisions and regulations once considered the province of legislators or executives are increasingly made by courts.
These and other decisions have diminished your freedom, undermined the family, and disrupted our entire social structure. lt is imperative to understand that law not only controls but also teaches. Citizens tend to confuse legality with morality – believing that nothing which is legalized is thereby made moral. The Court has thus imposed not only its control but also its morality (or immorality) on society!
Understanding the Problem
Professor Charles E. Rice of Notre Dame Law School says:
Congress, especially possesses the power to restore a proper balance with respect to the judiciary. The first step, however, is to recognize the problem.
Our Republic was founded on natural law – leaning a universal, transcendent moral law, perceived by the Founding Fathers to be unchanging, emanating from an immutable and eternal God. This is vividly expressed in the Declaration of Independence which refers to the “laws of nature and of nature’s God.”
We hold these truths to be self-evident, that all men . . . are endowed by their Creator with certain unalienable rights . . . That, to secure these rights, governments are instituted among men . . .
(emphasis added on all quotations)
Be not deceived. This is not merely a political issue. Nor is it insignificant. It is a philosophical revolution which directly affects every citizen, whether he realizes it or not. The federal courts have exercised a major role in our nation’s shift from biblically-centered laws and morals to the humanistic values now permeating society. This role must be understood by all who seek to strengthen our nation.
. . . the Court began gradually . . . to assert judicial supremacy by means of an activist, policy- making posture. And the reason for this fundamental change in outlook is to be found in an ominous revolution in the philosophy based on pragmatism and legal positivism.
Pragmatism is the belief that whatever works is right – relativism, no absolute truths or fixed moral norms. Legal positivism accepts no law above man-made law. As you see, both completely reject God.
Natural law (which recognizes a Supreme Being) and positivism (which denies a Supreme Being) are irreconcilable. A national policy which strives to embrace both at the same time creates a virtual state of schizophrenic turmoil. In time, one philosophy must triumph over the other; and the future of our nation, and perhaps civilization, is at stake. The battle rages in our schools, our churches, our homes, and our courts.
Alexis de Toqueville, French statesman and author, noted in his appraisal of America:
If I were asked where I place the American aristocracy, I should reply without hesitation that it is not composed of the rich . . . but that it occupies the judicial bench and bar.
In a recent issue of the American Bar Association Journal, Irving Kaufman, chief judge of the U.S. Court of Appeals for the Second Circuit, approvingly quotes Professor Walter Murphy of Princeton University to support his argument that
. . . the Court’s power is not temporal. It rests on . . . the cult of the robe, the concept of the judge as high priest of justice with talents for elucidation of the law, that sacred and mysterious text that is inscrutable even to the educated layman, that forms a sort of institutional charisma which is bestowed on judges with their oath of office.
(Note that the phrase “cult of the robe” was used by professor Walter Murphy and quoted by Judge Irving Kaufman. Webster defines “cult” as “(1) a particular ritual or system of worship, or (2) devotion to a person, thing, idea, theory, or the like.”)
Martin Van Buren, while still a Senator, observed:
A sentiment . . . for the Supreme Court has grown up, which claims for its members an almost entire exemption from the fallibilities of our nature.
Knowing that no agency or official is infallible, no matter how well-meaning, our Founding Fathers wisely and protectively provided governmental checks and balances. The infallibility of the Supreme Court is clearly refuted by the Court’s reversal of itself more than 150 times.
The Omibus Judgeship Act of 1978 created 152 new federal judgeships, increasing by about one third the existing 525. Federal judges are appointed for life, with no mandatory retirement regardless of age or infirmity. Alarming and distressing is the fact that most of President Carter’s 152 appointees reject a biblical system of absolutes.
At judicial appointment hearings, Senator Edward Kennedy, then chairman of the Judiciary committee, said, evidently approvingly:
Surely few offices in our government are as secure and powerful as judges, Federal judges enjoy lifetime tenure. They hold the power not only to check federal authority but to influence State and local governments, business enterprises, and individual conduct. They literally hold sway over the life, liberty, and property of every person in the country.
How has this happened? The Supreme Court has acted as a continual Constitutional Convention. Through use of broad concepts embodied in the “due process” and “equal protection” clauses, the philosophical opinions of nine men (or five, a plurality) have in effect mended the Constitution by interpretation, ignoring and circumventing the amending process specified in Article V.
Authorized or Usurped?
Is this tremendous power authorized by the Constitution, or has it been usurped? Certainly is best answered by the Founding Fathers. If their original intent is ignored, then, as Thorr as Jefferson warned, the Constitution becomes a “mere thing of wax” in the hands of whoever is most powerful or most clever.
James Madison, recognized as the Father of the Constitution, said that the principle of judicial supremacy “was never intended and can never be proper.” In Federalist 51 he unequivocally noted that “In republican government, the legislative authority necessarily predominates.”
Thomas Jefferson wrote in 1829:
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.
(Oligarchy is government by an elite few).
Jefferson commented on Marbury v. Madison 1804:
Nothing in the Constitution has given them [the Supreme Court] a right to decide for the Executive, more than the Executive to decide for them. The opinion . . . would make the judiciary a despotic branch.
Andrew Jackson said in 1832:
The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges. . . The authority of the Supreme Court must not, therefore, be permitted to control the Congress of the Executive . .”
Abraham Lincoln, in the Lincoln-Douglas debates, cited Jefferson’s warning that judicial supremacy “would place us under the despotism of an oligarchy.” Also, in his First inaugural Address, Lincoln declared: “. . . if the policy of the government, upon vital questions effecting 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 threat eminent tribunal.
How Did Judicial Supremacy Develop
Those searching for authority or justification usually cite two examples, both of which fall under scrutiny.
(1) Alexander Hamilton strongly supported judicial supremacy in the Federalist papers. However, his views had previously been totally rejected by the Constitutional Convention.
(2) Often mentioned is the case of Marbury v. Madison (1803) the Supreme Court’s first time to declare an act of Congress unconstitutional. In this case, John Marshall (1755 – 1835) Chief Justice for 34 years, championed Judicial superiority. Yet, he admitted his arguments to be merely his private opinion, not part of the decision of the case. Significantly, President Jefferson ignored Marbury v. Madison and followed his own interpretation of the Constitution.
Legal scholars such as Joseph Story and James Kent worked hard to establish the legal profession as an intellectual elite who alone claimed to understand the Constitution and the law. An interesting claim indeed – in view of the fact that James Madison, Father of the Constitution, was not a lawyer!
Though Hamilton and Marshall supported judicial supremacy, it was not until the 1880’s that the Court began gradually and ever-increasingly to practice it.
John Dewey was prominent in promoting the philosophical/legal revolution. Dewey (1859 -1952) a humanist called the “father of pragmatism,” was a disciple of Hegel and Darwin and rejected all concepts of natural law, since he rejected a Supreme Being. His philosophy not only permeated the educational and religious sectors, but also the judiciary.
Jurists who wielded tremendous influence in this philosophical revolution were Oliver Wendell Holms, Jr. (1841 – @935) and Roscoe Pound (1870 – 1964) Dean of Harvard Law School. Both were pragmatists and positivists (humanists). They, like Dewey, disdaining divine guidance, looked to scientific and social scientists for guidance (most of whom shared their humanistic views) and they looked upon the courts as vehicles to mold society as they deemed “good” or “right.” This thinking has been clearly evident from that time until now. Roscoe Pound coined the terms “saciological jurisprudence” and “social engineering.”
Thomas Jefferson foresaw this danger. Concerning judicial supremacy, he wrote in 1819:
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.”
These warnings have been ignored! Consequently, these predictions have come true!
At the close of the Constitutional Convention, Benjamin Franklin was asked “What kind of government have you given us?” He replied: “A republic, if you can keep it.” National rule by bench and bar is not working; it was never intended to work. lt is a perversion of our constitutional republic form of government. Raoul Berger, Harvard professor, asks:
How long can public respect for the Court (as well as all courts) on which its power ultimately depends, survive if the people become aware that the tribunal which condemns the acts of others as unconstitutional is itself acting unconstitutionally?”
“We the people” – through our elected officials – have never decided that millions of society’s most innocent and helpless members (the unborn) should sacrifice their lives simply for someone else’s convenience!
“We the people” (of all races) have never endorsed forbidding children to attend neighborhood schools simply because of the color of their skin. Most citizens abhor this type of racism.
“We the people” – through our elected officials – have already ruled that to send our nation’s women to fight our wars is unthinkable!
Has our right to self-government been literally wrested from us by a legislating federal judiciary? Will justices continue to control and bind their definition of morality and social justice upon all society as “the law of the land”? Yes – unless and until a massive public uprising persuades Congress to regulate this unwarranted rule. OF THE JUDGES, BY THE JUDGES, FOR THE PEOPLE!
Csaba Vedlik, Jr., of Washington, D.C., co-author of Judicial Supremacy: The Supreme Court on Trial, says that no issue is more important, because if it is not resolved AND SOON, then we have lost our republic! But is it too late? Does it have to be that way?
Federal judges are appointed for life – not elected or subject to the citizens. “We the people” have only Congress and the President to represent us. They have not only the power but the duty to reverse this national injustice. Listen to Professor Edward S. Corwin of Princeton University, perhaps the foremost constitutional scholar of this century (a copy of whose Annotated Constitution is in the office of most Congressmen):
We arrive at a clear recognition that the national legislative organ, Congress, and the President, are vested not only with the power but with the duty to read the Constitution for themselves. To be sure, they are entitled to consult the opinions of the Court for such light as they may shed on particular questions of constitutional power . . . For all that, they are not entitled to abdicate their own official function of independent judgement.”
Congressmen and the President take an oath (“So help me God”) to uphold the Constitution – not the Supreme Court! We beseech them not to violate this oath but to reclaim their own power and duty, thereby restoring our rights. Government of the people, by the people, and for the people produced personal freedom and achievements unprecedented in the history of mankind. WILL YOU DO WHAT IS NECESSARY TO PRESERVE THIS RIGHT OF SELF-GOVERNMENT?
What Can You Do?
1. Inform others. Distribute copies of this leaflet. Inform through Letters to the Editor, radio and TV talk shows. Encourage more intensive study of the sources cited below. A lawyer said: “In law school, we studied case law, not history; and I had never seen the writings of our forefathers on this subject.”
2. Send information to your Congressman and Senators.
3. Support legislation which would reassert the constitutional power of Congress and reduce the unwarranted authority of the federal courts. Ask your Congressman for copies of pending legislation on this subject.
4. Support a constitutional amendment to change the life tenure of judges to a limited term of office.