When one mentions the words tyrant or tyranny people usually picture a cruel and oppressive king or a dictator like Hitler Mao or Stalin. Rarely do those words come to mind in reference to a government which consists of people chosen in open democratic elections, and those words apply even less to the branch of that government which is supposed to proved justice; the Judiciary.
Yet if you want my honest opinion, the Judicial Branch of our government is the most dangerous, and has caused the most erosion to our constitution than both the Legislative and Executive combined. Sure, from time to time they get things right in their rulings, but they rarely hesitate to use their authority to expand both their power, and that of the government in general.
The problem with the Judicial Branch is that people believe it to have the final say in what laws are constitutional and which aren’t; which simply isn’t why the Judicial Branch was written into our constitution. In fact, in a letter to Abigail Adams, Thomas Jefferson wrote of his opposition to that belief, “BUT 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 Supreme Court is supposed to provide justice within the sphere defined by the powers constitution authorizes government to touch upon in its day to day operations. For example, if the constitution does not specifically say that the federal government has the authority to enact a national speed limit, but it does anyway, the SCOTUS cannot, without extending its jurisdiction beyond what it was intended it be, hear a case revolving around an unconstitutional law such as a national speed limit.
Such a law, if enacted, would be the purview of the State Courts to hear, and it is within their authority to declare a federal law in violation of the constitution, and render a decision that no crime has been committed when a citizen violates an unconstitutional law.
This principle is affirmed by 16th American Jurisprudence, Second Edition, Section 256 137, 180, where it states, “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. No one is bound to obey an unconstitutional law, and no courts are bound to enforce it.” (My emphasis)
In Federalist 48 James Madison writes, “It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others.”
Madison was not only speaking of power in a general sense as it applies to government, but to the individual branches of a government; such as the Judicial Branch. Each branch of government has their own sphere of authority; the Legislative makes the laws, the Executive executes them, and the Judiciary hears cases involving them. They cannot decide whether or not the laws are constitutional; that is for the people or the States to decide.
Again referencing Thomas Jefferson, in a letter to Judge William Johnson Jefferson writes, “This case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversions on its being merely an obiter dissertation of the Chief Justice … . But the Chief Justice says, “there must be an ultimate arbiter somewhere.” True, there must; but … . The ultimate arbiter is the people ….”
Since I’ve broached the subject of Marbury v Madison, let’s spend a few minutes discussing this landmark case in which the Chief Justice set the precedent for the concept of judicial review; the courts determining whether or not a law violates the constitution.
Near the end of his administration, President John Adams sought to stack the judiciary with Federalist judges in vacancies within the federal court system. One of these judges, William Marbury, had been appointed Justice of the Peace over the District of Columbia by President Adams; however his commission had not been delivered when incoming President Jefferson assumed office. Marbury petitioned the Supreme Court in an effort to get Secretary of State Madison to deliver his commission; which Madison refused to do.
The Supreme Court, under the leadership of Chief Justice John Marshall, first declared that Madison had acted illegally by withholding Marbury’s commission. However, the Court also declared that a provision within the Judiciary Act of 1789 which allowed Marbury to petition the Court was, in and of itself, unconstitutional, and the Court would exceed its jurisdiction by hearing the case.
This was the first time that the Supreme Court had issued a ruling in which it declared a law passed by Congress was unconstitutional; thereby setting a precedent for future panels of Justices to follow. Although Marshall had declined to hear Marbury’s petition, he accomplished something, which for him, was far more important; a huge expansion of the power held by the Supreme Court.
The next case of any importance comes 16 years after Marbury v Madison when the Court heard the case of McCulloch v Maryland. The federal government had chartered a national bank, much like the Federal Reserve today, and the State of Maryland had sought to oppose it by levying a tax upon all bank notes that were not issued by banks chartered by the Maryland Legislature. In effect, they were taxing the money being produced by decree of the federal government.
The head of the Baltimore branch of the Second Bank of the United States, James McCulloch, refused to pay the tax. He was then sued, with the case making its way to the Maryland Court of Appeals. The prosecution’s argument was that the constitution is silent in regards to the federal government’s authority to charter a bank, therefore the act which gave the Second Bank of the United States its authority was, itself, unconstitutional.
That is the Jeffersonian understanding of how to nullify unconstitutional law; by allowing the people, or the direct representatives of the people in the State Legislatures, to determine whether or not a law is constitutional or not. However, the case was appealed to the Supreme Court; whereupon it waved its magic wand and came up with the view that the constitution held ‘implied powers’; powers that were not specifically mentioned, but existed nonetheless.
Although the Court had not given itself any new power by their ruling in McCulloch, they did open the Pandora’s Box of implied powers which has led to far reaching interpretations of the General Welfare, Necessary and Proper and Commerce Clauses of the Constitution; which coincidentally are the foundation for almost every single unconstitutional law that has been passed since 1819.
But it was not only the fact that the SCOTUS had opened Pandora’s Box in regards to implied powers that makes the McCulloch case so important; it is the fact that the Supreme Court held the federal authority was superior to that of the States; thereby eroding the ability of the States to resist unconstitutional laws.
But the assault upon the constitution came when the Supreme Court heard the case of Martin v. Hunter’s Lessee. The case revolved around the ownership of land in the State of Virginia wherein land owned by a British Loyalist, Thomas Fairfax, who had fled to England during the American Revolution. In the meantime, the Virginia Legislature had passed a confiscatory act which declared that land within Virginia could not be deeded, or given away, to foreign nationals. However, Fairfax had deeded his land to his nephew, Denny Fairfax, who was also a British National.
The Treaty of Paris which had ended the American Revolution required that all land owned by British Loyalists was to be returned to the rightful owners. The case remained pretty much in limbo in the Virginia court system for almost 20 years before it reached the Supreme Court in its first incarnation; Devisee v. Hunter’s Lessee, where Justice Joseph Story utilized the Supremacy Clause to declare that Virginia must abide by the terms of, not only the Treaty of Paris, but the Jay Treaty which had recently been passed; respecting ownership of land of British Loyalists.
However, the Virginia Court of Appeals refused to abide by the Supreme Court’s ruling, stating that it did not have the authority to issue a writ of mandamus to execute its order that the land be returned to Denny Fairfax.
In 1816 the Supreme Court revisited the case; this time under the title of Martin v Hunter’s Lessee. The Supreme Court fully understood the gravity of this case. If they allowed the Virginia appellate court ruling to stand, their power over the State Courts would be severely weakened; something they simply would not allow to happen.
In his ruling Judge Joseph Story built upon the previous cases and expanded the interpretation of the constitution to new uncharted territory. For instance, the belief that our constitution is not a fixed law, that it is a living constitution subject to change as times change, can directly be attributed to Joseph Story and his ruling in Martin v Hunter’s Lessee.
Story argued, “The constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which, at the present, might seem salutary, might, in the end, prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom, and the public interests, should require.”
The first time I read that I literally dropped the book I found it in and said, “Holy shit!” I know that passage is long, and for those who aren’t used to reading lengthy legal passages, may be a bit confusing. So allow me to put it into simpler terms; basically was Story was saying is, “The Constitution can mean whatever the present generation thinks it means.”
In any case, by invoking the Supremacy Clause, Joseph Story placed the federal judiciary above the State judiciaries; one more step towards that despotic branch of government that Jefferson feared it would become.
The final assault, or coup de grace if you will, came in the 1821 case of Cohen’s v Virginia. At the time the case was heard lottery ticket sales; which had been approved by Congress, but were illegal in the State of Virginia. Two Virginians, P.J. and M.J. Cohen were arrested and fined for violating Virginia’s restriction on the sale of lottery tickets.
The legal team which represented the Cohen brothers did not wait to hear what decision the Virginia Court of Appeals would render; instead they directly petitioned the Supreme Court to hear the case; which the SCOTUS jumped at due to the opportunity to expand federal supremacy over the States.
Among those chosen by Virginia Governor Thomas Mann Randolph to defend Virginia’s position was Philip Pendleton Barbour; and he came loaded for bear.
Among the arguments offered by Barbour was the following:
“…a two-fold system of legislation pervades the United States; the one of which I will call Federal, the other municipal. The first belongs by the Constitution of the United States to Congress, and consists of the powers of war, peace, commerce, negotiation, and those general powers, which make up our external relations, together with a few powers of the internal kind, which require uniformity in their operation: the second belongs to the States, and consists of whatever is not included in the first, embracing everything connected with the internal police and economy of the several States.”
If you are a long time reader of my articles, that may sound strikingly familiar. It ought to, it is almost the exact same thing James Madison said in Federalist 45, “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; with which last the power of taxation will, for the most part, be connected.
The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
Not only had Barbour reiterated what Madison said, he included that basic premise of the 10th Amendment into his argument, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The other member of Governor Randolph’s defense team was Alexander Smyth, who delivered his own assault upon the federal position, “If you correct the errors of the Courts of Virginia, you either make them Courts of the United States, or you make the Supreme Court of the United States part of the judiciary of Virginia. The United States can only pronounce the judgment of the United States. Virginia alone can pronounce the judgment of Virginia.”
One of the lawyers for the Cohen brothers, David Ogden, scoffed at the idea of State sovereignty, stating, “We deny, since the establishment of the national constitution, there is any such thing as a sovereign State, independent of the Union.”
Two weeks after hearing arguments, Justice Marshall delivered the Courts ruling; spending much of the time condemning Virginia for their having the unmitigated gall to oppose the federal court system. Marshall, as was to be expected came down on the side of the federal government, just one more assault upon State’s rights and State authority a fait accompli, [a thing that has already happened or been decided before those affected hear about it, leaving them with no option but to accept].
I could go on and discuss Justice’s Hugo Black’s introduction of the concept of incorporation as it refers to applying the Bill of Rights to the States, or Justice John Roberts twisted interpretation of taxation in upholding the constitutionality of Obamacare, but I won’t bore you.
Just know this, the Supreme Court of the United States has done more damage to the fabric of our Constitution than the government itself could ever have hoped to do. Not only did the Supreme Court open the door for all manner of laws which violate the constitution, it rolled out the red carpet and sent out invitations for corruption and vice to enter into our political system. In short, Jefferson’s worst fears became the reality we live under today.
In closing I’d like to leave you with three more quotes from Jefferson regarding the federal judiciary. The first comes from a letter to Thomas Ritchie, dated September 1820, ”The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine our Constitution from a co-ordinate of a general and special government to a general supreme one alone. This will lay all things at their feet. … I will say, that “against this every man should raise his voice,” and, more, should uplift his arm …”
The next comes from a letter to Judge Spencer Roane, written a year earlier, “If [as the Federalists say] “the judiciary is the last resort in relation to the other departments of the government,” … , then indeed is our Constitution a complete felo de so. … 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 may please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law …”
The final comes from a letter written to William Jarvis in 1820, “You seem to consider the judges 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 … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. 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. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves.”
And this concludes your history lesson for today..