(Author’s Note. This is a long post, and there is much information to chew on here as well as through the links provided. Consequently I am going to leave this article up for a couple of days. Thanks for your patience!)
This post continues the Tyranny in America series, and focuses squarely on Article III of the U.S. Constitution, the Judiciary. Previous essays on tyranny focused on Articles I and II. “Judicial tyranny” is most associated with the term ‘judicial activism’, which has its origin in the power of ‘judicial review’. Would you be surprised to learn that the Founders’ intent was to have an independent judiciary that served to protect the Constitution?
A look at the Judiciary is not of abstract importance now, as threshold Constitutional issues over which the Courts would seem to have jurisdiction are being dismissed using such crass and common tools as ‘ lack of jurisdictional venue’, ‘lack of standing‘, the ‘political question‘, delays in decision-making, and minute technical language errors of the filings, such as ‘not stating a claim upon which a remedy can be obtained’.
In Federalist Paper 78, The Judiciary Department, Hamilton argued that a strong and independent judiciary was essential to a limited Constitution. He further argued that an independent judiciary is necessary to protect liberty, and would function to guard against tyranny of the other branches of government. Thus judicial review arose and is based upon historical precedent that it is one of the non-violent ways to fulfill a duty to resist tyranny.
That is a good place to start: the Judiciary has a duty to resist tyranny, and to protect the Constitution. Has it done so?
The analysis begins with the language of Article III, which has three sections:
Section 1. 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 behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
In what form has tyranny has slipped into the tent of the Judiciary under the first two sections of Article III?
The Origins & Scope of ‘Judicial Review’
The definition of ‘judicial review’ adopted for the purposes of this discussion is the right of the Judicial branch to declare a law unconstitutional. Judicial Review originated in 1803, in the landmark case Marbury v. Madison, where Chief Justice John Marshall ruled that the portion of the Judiciary Act of 1789 allowing for the Writ of Mandamus was unconstitutional. This decision helped put the Judicial Branch on a more even footing with the Legislative Branch, and later the Executive Branch.
Lord Bryce, the noted English political thinker, once said that:
No feature of the government of the United States has awakened so much curiosity . . caused so much discussion, received so much admiration, and been more frequently misunderstood, than the duties assigned to the Supreme Court and the functions which it discharges in guarding the Ark of the Constitution…
It is helpful to an understanding of the issues surrounding the unique role of the judiciary in the American constitutional system to examine one particular aspect. The setting in which Marbury v. Madison was decided in 1803, with all its momentous consequences for our country, is important. That great case had its antecedents in our colonial experience and its tap roots in the declarations of fundamental rights of Englishmen dating back to the Magna Carta almost 500 years before our independence.
The colonial experience of living under a distant parliamentary system with no check on the legislative or executive, except that of popular will in a very limited way, led our Founding Fathers to feel strongly the need for limitations on all branches of government. They were skeptical if not suspicious of power. The intellectual spade work for the system ultimately adopted for our federal government had been done by such seventeenth- and eighteenth-century political theorists as Thomas Hobbes and John Locke. The great rationalist Montesquieu contributed the idea of a separation of powers within the government itself, with each branch acting as a kind of brake upon the others.
As the system worked, one of the functions exercised by the Supreme Court involves measuring executive or legislative action – or that of the states – against the Constitution whenever a challenge to such action is properly brought within the framework of a “case” or “controversy.”
While there is little controversy over the right of the Courts to ‘measure’ acts of Congress or the Executive, it is the scope of that review that causes controversy to this day. Importantly, Berger offers up an interesting historical example of this controversy:
… But when a case or controversy is properly brought before the Court on a claim that some governmental action is contrary to the Constitution, someone must decide the issue: the Court must decide. Needless to say, the major challenges to the Court’s power have occurred during those periods when, for whatever reason, the Supreme Court has been under attack for its role in contemporary affairs. As an example, many polemics as well as some of the most thoughtful and scholarly challenges were written during the 1930’s when, to many of its critics, the Supreme Court represented the dead hand of the past, impeding legitimate experimentation and innovation while the legislature and the executive were trying to cope with a national economic crisis...
It is a fact that when Congress disagrees with a judicial interpretation of a statue, it can enact a new statute that replaces that judicial interpretation. Not only have Congress and the states done so in the past, they have also responded to judicial interpretation by amending the Constitution in four instances. All Presidents want to appoint judges that will interpret the constitution ‘properly’; a frustrated FDR tried to expand the Supreme Court’s size to 15 in 1934 but failed.
Anything about this history sound familiar to you today? 😯
So the charges of ‘judicial tyranny‘ are rooted in the Court’s judicial review authority. Many of the concerns seem to involve rulings that change the balance of power between the government and the people, which involves interpreting the constitution through the lens of a ‘constitutionalist’ or originalist, or one who believes in a liberal interpretation of the constitution as a ‘living document’, to be ‘interpreted with the times’.
- Must the Court take a Constitutional Case?
Well, yes. Article III provides that the power of Supreme Court and other Courts so established ‘shall extend to all cases in law and equity arising under the Constitution.’ To what extent is there any discretion to choose not to take a case, given that someone must decide?
Cases in point are all the eligibility cases, especially the few that remain. The Courts have refused to hear a constitutional challenge based on ‘technical’ reasons, most of which are ‘judicial inventions‘–standing, the ‘political question’, and jurisdiction and venue. Other barriers the Courts have constructed include certain ‘tests’ of worthiness, merit, likely outcome–concepts not contemplated in the use of the words “..power..shall extend to all cases in law and equity arising under this Constitution”
Charles Kerchner (Kerchner v. Obama), citing Chief Justice John Marshall, writes that:
The federal courts and judges are committing treason to the Constitution by not taking jurisdiction and getting to the merits in the various cases before them regarding the Article II eligibility clause question for Obama.
Yes, you heard it right: treason to the Constitution, the words of John Marshall in 1821. Take a look at the article, it is well worth the read.
It’s not hard to imagine judges in their quarters ticking off every excuse they can to dismiss eligibility cases, preferring them to the ‘political question’…in other words, the Constitution is up for a vote.
Here it is exposed: the tyranny of using the judicial system to undermine the Constitution. Instead of protecting the Ark of the Constitution, the judiciary lets democracy (majority rule) usurp the law. 😯
Discussion of Options
Options to remedy this situation using the tools our Founders gave us are numerous, and really require a separate post. But here are a few options being discussed currently, and which I hope will be raised at the Continental Congress 2009:
- Eliminate lifetime appointment for federal judges
- No judicial nominee should be confirmed who rejects the jurisprudence of originalism
- Revive the Grand Jury System, here and additional work here.
- Reform of Judicial elections
There are many more options to discuss. There may be an opportunity brewing in California involving corruption within the entire judicial system that could be used as impetus for reform. Certainly, and even with missteps on the part of some attorneys, the disgraceful behavior of the Courts in the eligibility cases should be a rallying point for the Nation.
Enforce the Constitution, or resign.