Establish Justice

By Douglas V. Gibbs

Article III of the U.S. Constitution establishes the United States Supreme Court, and authorizes the creation of inferior courts by Congress. The judicial branch was created to apply the law to the cases they hear, not interpret the law and change the law to fit an agenda. Legislating from the bench is unconstitutional, as is judicial review. The practices originated during the founding era of the United States.

Chief Justice John Marshall, in his opinion of the 1803 Marbury v. Madison decision, provided the legal clout to establish judicial review when he lectured President Thomas Jefferson on Supreme Court jurisdiction. Marshall stated that “it is emphatically the province and duty of the judicial department to say what the law is” and ultimately decide on the constitutionality of legislation.

Anti-Federalists warned the Supreme Court could become a tyrannical oligarchy. John Marshall later used his rulings to compromise state sovereignty, and expand the power of the Supreme Court. Jefferson wrote later in life that “judicial review” was simply the opinion of John Marshall, and not the original intent of the framers of the Constitution. In 1815 he said, “The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.” Together with James Madison, Thomas Jefferson authored in 1798 the Virginia and Kentucky Resolves to protest the unconstitutional Sedition Act of 1798, and outline the doctrine of nullification, a power the States, acting in their sovereign capacity, could use to declare a federal law unconstitutional and refuse to adhere to its provisions.

-- Political Pistachio Conservative News and Commentary