This is the Fourth Myth in the series: 25 Myths of the U.S. Constitution.
Note: These articles later were updated and combined into my first book: 25 Myths of the United States Constitution.
By Douglas V. Gibbs
The idea of the federal court system determining the constitutionality of laws has become as common as hot dogs and apple pie in America. Laws are constantly challenged regarding their constitutionality, and inevitably these challenges wind up being decided by a federal court. The common belief is that the U.S. Supreme Court is the final arbiter of the U.S. Constitution.
The problem is, there is no place in the U.S. Constitution that gives the courts that kind of authority.
The judges of the British judiciary, during the time of the American Revolution, carried nearly as much power as the king. The smug old men wore their powdered wigs arrogantly. Save for the occasional kingly correction, the rulings of the judges were final. They served the aristocracy, and suppressed dissent. The law was interpreted by these powerful judges, especially when it was in accordance to the whims of the monarchy.
When George Washington was elected president of the United States, the people around him asked what he would like to be called. Your majesty? Your excellency? Your honor?
Washington told his admirers that Mr. President would be sufficient. Like most of the founders, Washington did not desire status for the sake of status. A lust for position was better left to the aristocrats of Britain, as far as Washington was concerned. No American was better than any other. Some were fortunate enough to serve the new country in an official capacity, but that opportunity belonged to anyone that should decide to pursue it. In America there was no aristocracy, no preferentially treated position of privilege, and no elite ruling class.
As a result of the founder's negative opinion of elitism, the word "uniform" was used often in the U.S. Constitution. "All men are created equal" was more than just a phrase from the Declaration of Independence.
As with today, there were those back then that believed governments run best when guided by a political elite made up of educated aristocrats who have some hidden wisdom that enables them to recognize the presence of a General Will. These folks looked up to the British system of aristocracy, mercantilism, and empire. The only obstacle between these elitists, and empire, was the Constitution, and the vote of the people - which brings us back around to the courts.
The attempt to centralize the United States Government into a system reminiscent of the British system failed. Alexander Hamilton's Bank of the United States did not work, and the political headway achieved through Adams' presidency was all but erased when Thomas Jefferson won the presidency in the close election in 1800. Unable to achieve their statist end through political means, Hamilton, and his fellow big government cronies, turned to the judiciary, and more specifically, Chief Justice John Marshall.
During John Adams' final moments in the presidency, he appointed a whole host of "midnight judges" (appointing 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801) in the hopes of retaining federalist control of the courts as Jefferson's Democratic-Republicans gained control of the Congress, and Jefferson himself accepted the presidency.
While Adams was still in office, most of the commissions for these newly appointed judges were delivered. However, unable to deliver all of them before Adams' term expired, some of them were left to be delivered by the incoming Secretary of State, James Madison. Jefferson ordered them not to be delivered, and without the commissions delivered, the remaining new appointees were unable to assume the offices and duties to which they had been appointed to by Adams. In Jefferson's opinion, the undelivered commissions were void.
One of those judges was a man named William Marbury. He sued, and the case worked its way up to the Supreme Court. After all of the dust settled, on February 24, 1803, the Court rendered a unanimous (4-0) decision that Marbury had the right to his commission, but the court did not have the power to force Madison to deliver the commission. Chief Justice Marshall wrote the opinion of the court, and in that opinion he wrote that the federal court system has the power of judicial review. Rather than simply apply the law to the cases, Marshall had decided based on case law that the courts have the authority to determine the validity of the law as well. This opinion, however, went against all of the limitations placed on the courts by the Constitution.
One of the most obvious fundamental principles of the Constitution is the limitations it places on the federal government. The Constitution is designed not to tell the federal government what it can't do, but to offer enumerated powers to which the authorities of the federal government are limited to. The powers are granted by the States, and any additional authorities must also be granted by the States. The process by which this can be accomplished is through the amendment process. Remember, it takes 3/4 of the States to ratify an amendment.
The power of Judicial Review, or the authority to determine if laws are constitutional, was not granted to the courts by the States in the Constitution. The courts took that power upon themselves through Justice Marshall's opinion of Marbury v. Madison.
Let's think about this for a moment. The federal courts are a part of the federal government. The Constitution was designed to limit the authorities of the federal government by granting only a limited number of powers. Judicial Review enables the federal government, through the courts, to determine if the laws that the federal government made are constitutional. In other words, the federal government, through Judicial Review, can determine for itself what its own authorities are. The Supreme Court took that power for itself (and a government that takes power, or should I say "seizes" power, is a tyranny in my book).
Do you think that is in line with the limiting principles the Founding Fathers originally set forth?
So, the idea that the federal courts, or the United States Supreme Court, has the authority to interpret the Constitution, and can decide if a law is constitutional or not, is unconstitutional. The myth has been perpetuated by the courts in the attempt to gain power, and work towards a more centralized big federal governmental system.
One of the ways subverting the Constitution is achieved, aside from Judicial Review, is Implied Law, but we'll discuss that when we get to Myth #22.
-- Political Pistachio Conservative News and Commentary
In this post, you have the view that the Constitution is clear on its face and nothing should be implied into it.
ReplyDeleteYet, in order to bring Vattel into the mix, you would need the Judiciary you loathe, as "natural born" is not defined in the Constitution - nor has it ever been defined by Congress.
In fact, your reading Vattel in would be either judicial interpertation or legislating without Congress.
You're stuck.
Not at all. It is clear that Vatell's Law of Nations was important to the founders. Besides, the definition of Natural Born Citizen was also clearly stated in the Immigration and Naturalization Act of 1790.
ReplyDeleteExcellent piece Douglas!
ReplyDeleteJust one little tidbit, on Jefferson's party. From reading newspapers, and even in The Real Thomas Jefferson, they were referred to as Jeffersonians, Jefferson's Republicans, Jefferson's AnitFederalists, or just Republicans (not to be confused with the modern party that was constituted in 1854).
The democrats were a fringe group who didn't become a majority in the party until the last year of Madison's administration when the name was changed to Democratic-Republicans.
Again, I know it's a small detail, but important since the modern dems, and I don't bother mincing words because they are not liberals, but communists, that just love to claim Jefferson as their founder, to give validity to their communist / socialist agendas, and the destruction of the republic, which Jefferson, if he were here today, would slap the snot of them. And well, the repblicans too.
Oh, I have never seen such illogical perversions of the past! Alexander Hamilton was of the same Federalist "big government" ilk as John Adams and George Washington. All were taxers of farmers, subsidizers of industry, and stiflers of free speech. They were all Anglophile, monarchy sympathizers.
ReplyDeleteNevermind the absurd accusations about made by "Anonymous" about "communists" misappropriating Jefferson. Neither Jefferson nor Hamilton had any direct connection to Justice Marshall's decision in Marbury v Madison. The ability/power of judges to interpret the constitutionality of laws that are brought to them is rooted in English legal tradition, the Federalist Papers, and in Article III of the Constitution.
As for Judicial Review, it is a classic check on a potentially aggressive legislature.
What is so bothersome to me about this is that Judicial Review magically becomes "judicial activism" when you don't like the decision. Why aren't you complaining about the role of Judicial Review when Cooper, Schenck, Abrams, Whitney, or Dennis are being preemptively imprisoned for their political opinions? It makes the conservative view of "liberty" look very narrow-minded.
Oh, I have never seen such illogical perversions of the past! Alexander Hamilton was of the same Federalist "big government" ilk as John Adams and George Washington. All were taxers of farmers, subsidizers of industry, and stiflers of free speech. They were all Anglophile, monarchy sympathizers.
ReplyDeleteNevermind the absurd accusations about made by "Anonymous" about "communists" misappropriating Jefferson. Neither Jefferson nor Hamilton had any direct connection to Justice Marshall's decision in Marbury v Madison. The ability/power of judges to interpret the constitutionality of laws that are brought to them is rooted in English legal tradition, the Federalist Papers, and in Article III of the Constitution.
As for Judicial Review, it is a classic check on a potentially aggressive legislature.
What is so bothersome to me about this is that Judicial Review magically becomes "judicial activism" when you don't like the decision. Why aren't you complaining about the role of Judicial Review when Cooper, Schenck, Abrams, Whitney, or Dennis are being preemptively imprisoned for their political opinions? It makes the conservative view of "liberty" look very narrow-minded.
Judicial Review is both an English legal tradition and a judicial power expressed in Article III of the US Constitution. It was not a judicial power reserved for aristocratic Anglophiles, as Douglas absurdly posits. However it was used by judges in the monarchy, in the US it is a check on over-zealous legislatures (both state and federal). It is an opportunity for government of citizens to self-criticize, particularly through appellate circuits.
ReplyDeleteJohn Marshall referred both to the Federalist Papers and Article III when he ruled that the Supreme Court did not have jurisdiction over the Marbury case. Since then, Judicial Review has been used to both uphold and strike down both liberal and conservative laws.
My issue with today's vociferous conservatives is that they only call it "judicial activism" or "legislating from the bench" when they don't like the ruling. I'd like to see them complain about all the time legislators and judges found ways to limit the parameters of freedom of speech, press and assembly when ethnic minorities and political dissidents were imprisoned for saying the wrong thing--from Thomas Cooper and David Brown to Schenck and Abrams to the Smith Act trials. You're trying to have your cake and eat it to.
The fact is, when the Framers compromised their way through 1787-89, they set of a constellation of core contradictions and have left it up to a somewhat distressful blend of generations and parties/factions to make of it what they will. It's a beautiful thing, even if it does force a good politician like Lincoln to trample states rights in order to do away with a crime against humanity. We do ourselves a disfavor by thinking that the mythical founding fathers solved our modern problems for us. At worst, it's a sign of mental weakness, at best cheap rhetoric. Cheap like an opiate for the masses.
That Guy, it is fascinating that in both comments your justification for judicial review was that the concept was readily used by the monarchy. The early Americans wrote the Constitution largely to ensure our system was as unlike the British System as possible. The British System was considered to be Tyrannical. The federal government was created out of necessity, but was to be limited as much as possible. Judicial Review allows the federal government, through the courts, to determine its own authorities. How is that limited? As for your accusation about when conservatives see a ruling as legislating from the bench, or not, the courts can make rulings, but they cannot affect law. When they do, it is legislating from the bench, and that is unconstitutional. All legislative powers, as per Article I, Section 1, are granted to the Congress. Unfortunately, your posts reek of progressive talking points. You have been taught what to say. When you are ready to learn, pay me a visit.
ReplyDeleteInteresting. I agree with the post by Mr. Douglas. The comments that follow are, well...interesting. Howbeit, it is merely logic and reason that there is absolutely no need for anyone to interpret the constitution for another. (Hence the phrase, "Republican form of government"...guaranteed.) We have all been educated under a supposed "mandatory" school system, which would, in itself, seem to oppose such a need for interpretation. All of government, in theory, is for the benefit of "The People, yes? The extent of judicial power is clearly and concisely laid out under Article III of the Constitution. Moreover, any more of such power supposed by the states are also limited as provided for by Art. VI cl. 2 (no need for a 14th Amendment in this regard).
ReplyDeleteNow then, if I have created a place for one to be consigned to, and it is accepted upon oath, yet that one exceeds that place of consignment, do I need this one to inform me of the limitations I have placed on his/her consignment? Surely the power over him is me, for I am he that created the place of his consignment, of which he/she has accepted upon oath. The answer is to a rhetorical question: No need!