The Federal Courts vs. Constitution

The recent Supreme Court decision to strike down a Texas law against sodomy has reminded constitutionalist Americans that our courts are literally out of control and no longer guided by the Constitution.

Four Stages of Disintegration Since the Founding

To appreciate how far we have strayed, let us examine the words of a notable constitutional authority, Edwin S. Corwin, who wrote The Constitution of the United States, Annotated, an official government publication. He points out that the Supreme Court has passed through four identifiable stages of development, which may be summarized as follows:

    1. There was the John Marshall period when the Constitution was used to establish "national supremacy." The Federalist Papers and the words of the Founders were almost the exclusive guide to constitutional interpretations during this first period.
    2. The second period began with the appointment of Chief Justice Taney in 1835 and extended to approximately 1895. During this period the Supreme Court leaned heavily on various doctrines of constitutional theory and seldom quoted the Founders or the Federalist Papers. Nevertheless, the Court adhered rather strictly to the philosophy of the Founders, even though they seldom quoted them.
    3. Beginning around 1895, the Supreme Court moved into a third phase by gradually replacing constitutional supremacy with judicial supremacy. The Constitution was no longer what the Founders said it was, but rather what the Supreme Court said it was. To quote Dr. Corwin:

      "It was early in this period that Governor [Charles Evans] Hughes, soon to ascend the Bench [and later serve as Chief Justice from 1930 to 1941] said, without perhaps intending all that his words literally conveyed, 'We are under a Constitution, but the Constitution is what the judges say it is.' ... Senator Borah, in the Senate debate on Mr. Hughes' nomination for Chief Justice, in 1930, declared that the Supreme Court had become 'economic dictator in the United States.' Some of the Justices concurred in these observations, especially Justices Holmes and Brandeis. Asserted the latter, the Court had made itself 'a super-legislature' and Justice Holmes could discover 'hardly any limit but the sky to the power claimed by the Court to disallow State acts' which may happen to strike a majority [of its members] as for any reason undesirable."

    4. The final period is one which is continuing today. It is the spectacle of a judiciary virtually out of control and seriously in need of repair by a constitutional amendment. As Edwin Corwin writes:

      "What was once vaunted as a Constitution of Rights, both State rights and private rights, has been replaced to a great extent by a Constitution of Powers. The Federal system has shifted base in the direction of a consolidated national power; within the National Government itself there has been an increased flow of power in the direction of the President; even judicial enforcement of the Bill of Rights has faltered at times, in the presence of national emergency." (Skousen, The Making of America, p. 578)

The Founders Envisioned a Clear Division
of Labor Between State and Federal Courts

In keeping with the desire of the Founders to limit the power of the federal government, they wanted it clearly understood that only certain types of cases were to be assigned to the federal courts. All others were to remain in the state courts. And there was to be no appeal from state to federal. Once a matter was decided in the state courts, it was final. Constitutional Convention delegate Richard Spaight explained:

"In that convention, the unanimous desire of all was to keep separate and distinct the objects of the jurisdiction of the federal from that of the state judiciary...." (Ibid., p.585)

The Federal Courts Assigned Eleven Kinds of Cases

Just as the Constitution limits the power of Congress to about twenty areas and the president to about six, so it also limits the cases which can be heard by the federal courts to eleven. Yes, just eleven-and one of those was repealed right after the Constitution was ratified! Article III, Section 2 lists the specific types of cases which the federal courts may hear. Here is the way section 2 reads:

The judicial power shall extend to all cases in law and equity arising under

  1. the Constitution
  2. the laws of the United States
  3. and treaties made, or which shall be made under their authority;
  4. to all cases affecting ambassadors, other public ministers and consuls;
  5. to all cases of admiralty and maritime jurisdiction;
  6. to controversies to which the United States shall be a party;
  7. to controversies between two or more States;
  8. between a State and citizens of another State (repealed);
  9. between citizens of different States;
  10. between citizens of the same State claiming lands under grants of different States;
  11. and between a State, or the citizens thereof and a foreign States' citizens or subjects.

Notice that the federal courts were given the cases which would arise outside the logical jurisdiction of any state-such as dealing with foreign countries or cases arising between two or more states or cases dealing with the Constitution or with federal laws (it, of course, was understood that federal laws would be laws passed only in accordance with the limited and delegated powers of Congress in Article I, Section 8).

All other kinds of cases were to remain the jurisdiction of the state courts. These would deal with innumerable subjects and would include the most sensitive areas specifically forbidden to the federal government such as religion, press, speech, etc. (The First Amendment prohibits Congress from addressing these issues in law and thereby prohibits the federal courts from taking jurisdiction also.)

Alexander Hamilton wrote:

"The judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of these cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority." (Ibid., p. 592)

There are many more quotes from the Founders indicating this limited role of the federal judiciary. Many of our federal judges today, including most of our Supreme Court judges are in direct conflict with the authors of the very document they have sworn to uphold. They are, in fact, out of control. Some would say it was the Fourteenth Amendment which gave broader powers to the federal courts. Granted the amendment was very poorly written, but most of the so-called additional powers have come in subsequent Supreme Court interpretations of the Fourteenth Amendment.

No Legislative Power in Courts to Make New Law or Set Policies

Listen to the Founders explain the legitimate power of judges:

Caleb Strong: "The power of making ought to be kept distinct from that of expounding the laws. No maxim was better established."

Nathaniel Gorham: "As judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures." "Judges ought to carry into the exposition of the laws no prepossessions with regard to them."

Elbridge Gerry: "It was quite foreign from the nature of the office to make them judges of the policy of public measures." "The judiciary ... will have a sufficient check against encroachments of their own department by their exposition of the laws, which involved a power of deciding on their constitutionality."

Rufus King: "The judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation."

One might ask, "Then what is the power of the court?" Listen to two of the Founders as they explained that the courts only have a negative or veto on existing law.

Luther Martin: "And as to the constitutionality of laws, that point will come before the judges in their official character. In this character they have a negative on the laws."

George Mason: "In their expository capacity of judges ... they could impede, in one case only, the operation of laws. They could declare an unconstitutional law void." (All quotes in The Making of America, p. 595)

Federal Courts Are Making New Law and Setting New Policy

Cases are pouring out of the Supreme Court which affect the lives and future of our citizens and our country and which never have been addressed by the representatives of the people: Making abortion legal, banning religious and morality training in schools, striking down state laws against sodomy, forced bussing of children, etc.

Thomas Jefferson Predicted This Would Happen

It only took Jefferson several years to see the trend beginning in his day and saw future disaster for the Republic. Said he:

"It has long ... been my opinion, and I have never shrunk from its expression (although I do not choose to put it into a newspaper, nor like a Priam in armor [to] offer myself [as] its champion), that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped from the states, and the government of all be consolidated into one. To this I am opposed, because when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated." (Ibid., p.588)

Let the States Compete for the Best Government

In light of the Founders formula, the only answer to many of the cases brought to the federal courts should be: No jurisdiction, let the state court's decision stand. We can imagine that states would differ on some of these issues and pass laws accordingly. If a state were too loose in its moral laws, good people would opt to go to another state which provided a better environment in which to live.

My state of Arizona invites people to come because of the many months of incredible weather. Think what would happen if a state would be able to say, "Come to our state where a strong moral environment exists." "Come to our state where the traditional marriage and family values are protected." "Come raise your children in schools where strong religious morals are taught." "Come to our state where you may operate a business without the heavy taxes or bureaucratic requirements." "Come to our state where the most liberty and freedom exists and where law is held sacred." Now that's freedom!

It can only happen if the federal government is kept within its Constitutional bounds. Then the Founders' dream would be fulfilled.


Earl Taylor, Jr.