Nullifying Judicial Overreach

HAVE THE FOUNDERS’ FEARS OF A TYRANNICAL JUDICIARY COME TO PASS?

by Jim Delaney

(Jan. 16, 2011) — Especially since 1895, the federal judiciary’s role has shifted from that of ensuring “constitutional supremacy” to that of “judicial supremacy,” surely, an irreconcilable role shift which must be remedied.

Originally tasked with reviewing federal and state laws to ensure comportment with the Constitution, it has become disturbingly clear that the federal judiciary has dramatically strayed from its constitutional role envisioned by the founders.

Without question, this foundational shift has dramatically altered the balance of power between the states and people on one side and the central government on the other, a carefully crafted balance which the framers had intended as a permanent and essential arrangement. As a result, the scope and power of the judiciary and, in turn, that of Congress and of the Executive Branch, have profoundly expanded well beyond the limits intended by the framers.

In a letter to a friend in 1820, Thomas Jefferson asserted that “judicial review” had become a “dangerous doctrine,” further warning that if unelected judges are permitted to be the “ultimate arbiters of all constitutional questions” at both the federal and state levels, a “despotism of judicial oligarchy” would surely ensue, resulting in the inevitable dissolution of the Republic.

Even Alexander Hamilton, no tepid proponent of a strong central government, warned that “the Courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

He went on to counsel that while an unconstitutional act of a legislature is null and void, so too is an unconstitutional act of the Supreme Court. And since the Constitution is the creation of the people, he further asserted that the Supreme Court must “measure all legislative acts against the will of the people” as set forth in the original Constitution. So it is clear that he viewed the court with a lingering sense of apprehension and doubt as well. Why?

Like Jefferson and his fellow founders, Hamilton well understood the immutability of human nature and that man’s proclivity for self-aggrandizement would always pose a threat to constitutional order. Thus, the framers intended that while the Supreme Court should be properly empowered to interpret legislative law, its strict fidelity to the original meaning, spirit and intent of the Constitution should always supersede all other interpretative obligations, obviously, a very tall order and, very likely, an unachievable goal for mere mortals. And so it has proven to be over the years.

The truth is that for all their perspicacity and diligence, the founders failed to fully and properly address the possibility of an overzealous judiciary. To wit, the only obvious checks imposed were as follows:

1. the appointment procedure involving both the President who nominates judges and the Senate which either consents to or disapproves those appointments;
2. Article III, Section 2, which empowers Congress to restrict the court’s jurisdiction—which has rarely been attempted;
3. Congressional impeachment of judges for “treason, bribery, or other high crimes and misdemeanors,” though the willful or erroneous interpretation of the original meaning of the Constitution was not considered grounds for removal, which was clearly a yawning loophole. Precisely why this oversight was somehow permitted is, frankly, mystifying.

Strangely, the framers seem to have assumed that somehow these mortals, imbued with a fervent reverence for the Constitution, would steadfastly and forever adhere to a strict interpretation of the Constitution in all their deliberations, stoically and nobly resisting political influences and selflessly ignoring their own social, ideological and economic predilections. Tragically, over the years, this oversight has resulted in a litany of gratuitous judicial opinions quite at odds with what Jefferson described as the “honest meaning [of the Constitution] as contemplated by the people of the United States at the time of the [the Constitution’s] adoption…” In fact, in too many instances, judicial opining has morphed into judicial legislating.

Firmly believing that the Constitution should at all times be strictly interpreted, Jefferson unambiguously counseled that “on every occasion of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” This approach is, of course, in direct conflict with the more contemporary concept of a “living and breathing Constitution” which, by its very nature, permits whimsical or otherwise subjective and transformative interpretations of the original Constitution. In modern parlance, we call this case law. With the discomforting specter of a living constitution evolving in the future, Jefferson admonished that “our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction” as our contemporary living constitution adherents have done.

Compounding the seriousness of this matter, the absence of a Constitutionally-mandated standard of qualifications for judges was never included in the Constitution. As a result, history has shown that the judicial depth and constitutional motivations of many justices over the years have often been anything but stellar.

And where are we today?

Chew for a moment on these disturbing words of Gov. Hughes who served as Chief Justice from 1930 – 1941 during the heyday of the now discredited New Deal: “We are under a Constitution, but the Constitution is what the judges say it is.”

Whoa, baby! Thomas Jefferson’s worst fears realized. And, yes, folks, that’s where we are today.

Clearly, the Supreme Court is out of control and has been in need of some serious reining in for some time now. As for a remedy, who better to consult on this matter than Mr. Jefferson himself who, in the early 19^th century, recommended the crafting of an amendment which would empower either Congress or the state legislatures (or both) to have veto and removal power over the Supreme Court. It was his view that the opinions of the Supreme Court should be subject to “some practical and impartial control,” and that empowering a combination of federal and state authorities would accomplish that important goal.

However, we all know that a constitutional amendment process can be painfully deliberate, and, in the interim, much judicial mischief can be inflicted on the country. So what is the appropriate intervening solution to judicial overreach and error?

Very simply, nullification.

My advice is to urge our State representatives and attorneys general to prepare themselves and the citizens of their States for some honest-to-goodness pushback of the 10^th Amendment genre, and let them put the Supreme Court on notice that “we the people”—not the courts—are the final arbiters of what is and is not constitutional, bearing in mind that the threat of nullification alone may suffice to restrain judicial activism until a much-needed and carefully crafted amendment is adopted.

In short, until an amendment is adopted, all unconstitutional laws, opinions and executive orders must and ought to be subject to immediate and unqualified nullification. For example, if SCOTUS rules against the states on Obamacare’s “individual mandate,’ the States are duty-bound to interpose—and should do so without hesitation.

For a start, a copy of this post is being mailed to Atty. General Kenneth Cuccinelli of the Commonwealth of Virginia, the home and resting place of Thomas Jefferson, for the attorney general’s generous and thoughtful attention.