The Federal Judiciary: Guardian or Destroyer?

Just across the park from the Capitol building in Washington, D.C., stands a massively impressive structure of white marble with giant fluted pillars. Above those pillars are inscribed the words, "Equal Justice Under Law." This is the Supreme Court of the United States of America.

Every American should know more about what happens behind the massive marble facade of pillars and statues which marks the entrance to the Supreme Court Building. It is there, from the first Monday in October until late the following June, that the world's most powerful body of judicial magistrates proclaims the latest version of what must be accepted as the supreme law of the land for more than 270 million Americans.

How the Supreme Court Evolved into Its Role as "Guardian" of the Constitution

One of the fundamental doctrines of the Founders' formula for freedom and liberty is that there be "chains of the Constitution" which would be so strong and impenetrable that it would not allow human weaknesses to wreck the beautiful and delicate balance of power built into the Constitution. Such "chains" were provisions like: specifically enumerated and limited powers, separation of powers, checks and balances, a written Constitution, and the need for a guardian to see that Constitutional provisions are strictly enforced.

The question of who was to be the guardian became a matter of serious discussion soon after the Constitution was ratified. Thomas Jefferson felt that all three branches of government and the states should be the Constitution's guardian. John Marshall, as chief justice of the Supreme Court, felt the Constitution gave the role of guardian to the Supreme Court.

The gradual evolution of the Supreme Court into its role as guardian of the Constitution is known as the power of "judicial review." This means that the Court can review acts of Congress and acts of the state legislatures to make certain that they do not violate the provisions of the Constitution as designed by the Founding Fathers.

It is interesting that this extremely important power under which the Supreme Court makes its "judicial review" of constitutional issues is not specifically spelled out in the Constitution. However, it is clearly implied by the so-called "supremacy clause," which makes the Constitution and the federal laws and treaties the supreme law of the land. Obviously, the Supreme Court would have to use its judicial powers to enforce the supremacy clause, since otherwise it would be meaningless. That this was the intent of at least some of the Founders is borne out by the words of Alexander Hamilton:

"The courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter [the Congress] within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It therefore belongs to them [the judiciary] to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

In other words, the Supreme Court is to measure all legislative acts against the will of the people as it was set forth in their original charter of liberty -- the Constitution of the United States.

A Major Weakness Discovered

But there is one thing missing here. What happens if the Supreme Court imposes ITS will upon the nation, contrary to the specific provisions of the Constitution? The Founders knew this possibility existed, and Alexander Hamilton wrote:

"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."

Hamilton had already pointed out that an unconstitutional act of the legislative body is null and void. It should be clear, then, that an unconstitutional edict by the Supreme Court would be equally invalid.

But if this happens, where is the remedy? By what means do the people protect themselves against an unconstitutional edict by the Supreme Court? Apparently the Founders were so concerned about an overzealous Congress that they neglected to protect themselves from an overzealous judiciary. The only checks and balances provided in the Constitution are as follows:

  1. All judges have to be appointed by the President with the advice and consent of the Senate.
  2. Article III, section 2, authorized the Congress to restrict the jurisdiction of the federal courts, but this has been rarely attempted.
  3. The Congress can impeach judges for "treason, bribery, or other high crimes and misdemeanors," but not for an unpopular decision. Even when the Supreme Court has seriously violated its constitutional limitations by making new laws through judicial decree, no effective congressional action has been asserted.

From this it will be readily seen that insofar as checks on the judiciary were concerned, a major loophole was left in the basic structure of the Constitution. Perhaps the Founders were too busy to read an article in a New York paper signed "Brutus" (believed to have been Robert Yates) which said:

"It is of great importance to examine with care the nature and extent of the judicial power, because those [Supreme Court judges] are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they commit can be corrected.... The only causes for which they can be displaced [are] convictions of treason, bribery, and high crimes and misdemeanors.... The power of the judicial will enable them to mold the government into almost any shape they please."

Of course, the Founders may have assumed that the members of the Supreme Court would adhere to the traditional principles of "strict interpretation" which had been thoroughly established during several centuries of English common law. Had this been done, modern Americans would find themselves living in a much more stable society than at present. Our history demonstrates that too often the Supreme Court has ignored clearly stated principles of the Founders and interpreted the Constitution to suit the social, economic, or political aspirations of the court. This proved to be the Achilles' heel in the structure of the Constitution which allowed the Supreme Court to rapidly become what "Brutus" predicted it would. This, then, brings us to an important question: Who was right, Marshall or Jefferson?

Jefferson's Objections to "Judicial Review" As the Final Word for All Other Branches of Government

"My construction of the Constitution ... is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal."

Finally, he came right out and pronounced judicial review a "dangerous doctrine." In 1820 he wrote to William Charles Jarvis the following:

"You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

"If the [Congress] fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in Congress, the judges cannot issue their mandamus to them; if the President fails to supply the place of a judge, to appoint other civil or military officers, to issue requisite commissions, the judges cannot force him. They can issue their mandamus or distringas to no executive or legislative officer to enforce the fulfillment of their official duties, any more than the President or [Congress] may issue orders to the judges or their officers. Betrayed by English example, and unaware, as it should seem, of the control of our Constitution in this particular, they have at times overstepped their limit by undertaking to command executive officers in the discharge of their executive duties; but the Constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs....

"When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them but to inform their discretion by education. This is the true corrective of abuses of Constitutional power.

"Pardon me, sir, for this difference of opinion. My personal interest in such questions is entirely extinct, but not my wishes for the longest possible continuance of our government on its pure principles; if the three powers maintain their mutual independence [of] each other it may last long, but not so if either can assume the authorities of the other."

Why John Marshall Finally Won Out

History demonstrated Jefferson's concerns to be well founded, but so were John Marshall's anxieties borne out by the events of history. While it was true that the federal government grasped for power through the finality of Supreme Court decisions, it was also true that many of the states refused to uniformly protect the civil rights of all their citizens.

John Marshall clearly and emphatically established his position when, as Chief Justice of the Supreme Court, he announced in Marbury v. Madison, that the Supreme Court was the exclusive and final arbiter of what was constitutional and what was not, and furthermore, that its decisions were binding on all branches of government.

Marshall was simply affirming what he had said during the Virginia ratification convention. At that time he had asked: "To what quarter will you look for protection from an infringement of the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection."

Marshall based his conclusions on three provisions of the Constitution.

  1. The "supremacy clause," which says: "This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land." (Article VI.)
  2. The "binding clause," which says: "All executive and judicial officers, both of the United States and of the several states, shall be bound by oath and affirmation to support this Constitution." (Article VI.)
  3. The "judicial power clause," which says: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States ... "etc. (Article III section 2.)

In spite of Jefferson's protests, Marbury v. Madison became the milestone case which gave the Supreme Court the last say on what was constitutional and what was not. Had the court restrained itself during the ensuing years and held to a strict interpretation of the intent of the Founders, its credibility would have remained untarnished. Unfortunately, however, its original position of defending "constitutional supremacy" gradually shifted to a defense of "judicial supremacy," just as Jefferson had feared -- and that is where the matter rests today.

No doubt one of the main reasons why the rule of Marbury v. Madison became the cornerstone for judicial review was the fact that it brought questions of law to a final decision, whereas the Jefferson approach did not. It is part of human nature to demand a decision on pending issues and have a "fixed rule of law" so people can get on with their affairs and conduct themselves accordingly. It reminds one of the old military cliché which proclaimed, "It is better to make a decision and be wrong, than to make no decision at all."

The federal courts have done that, but once they abandoned the touchstone of the Constitution as originally designed by the Founders, they began to wander far afield. In recent times, the Supreme Court has found itself facing a barrage of criticism resulting from reversing itself over a hundred times and frequently interpreting statutes quite differently from the obvious intent of the Congress. Furthermore, it often bases decisions on "public policy" and "modern doctrines," resulting in distorted interpretations of the Constitution which the Founders never would have recognized.

Jefferson calls Judiciary "germ of dissolution" and Suggests a Remedy

Surely, such "modern doctrines" as abortion, separation of church and state, homosexuality, welfare, etc., has brought the United States to the point where Jefferson feared we would be when, in 1821, he warned:

"It has long, however, been my opinion, and I have never shrunk from its expression ... 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 scare-crow) 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."

Thomas Jefferson also suggested an amendment to the Constitution so that either Congress or the state legislatures (or both) might have a veto power or removal power over the Supreme Court, and thereby provide the people with a remedy when the court strayed from the Constitution. His fear of a runaway judiciary has come to pass. His counsel to us that all three branches of government together with the people themselves must be the ultimate guardians of the Constitution seems to be the remedy needed most. We must all be vigilant to preserve this precious charter of liberty.

Surely, it is time!

Earl Taylor, Jr.

Most of this article is taken directly from the writings of W. Cleon Skousen in The Making of America, published by NCCS, pages 569-577. Full documentation of quotes may be found by referring to these pages.