The Gradual Shift from "Constitutional" to "Judicial" Supremacy

A friend of mine was recently elected to serve as one of our local Justices of the Peace. In our state, as in most, Justices of the Peace are not required to be lawyers. My friend is not a lawyer, but a businessman who has a proven record of integrity and hard work. He was asked to run for Justice of the Peace so that his natural talents could be put to use in the arena of public service.

In preparation for taking the office of Justice of the Peace, my friend attended many training sessions developed by the state and county designed to teach these newly elected judges what their roles are and how to proceed once they have taken the oath of office and have assumed their duties.

After reading through this material, he became concerned with a portion of it and visited me at my office. Part of the material addressed the power of the Judicial Branch and the role of judges in making law and public policy. He said something like, "This doesn't seem right to me, but I am having difficulty knowing why and how I should think about this in a way that I can vocalize it. Could you perhaps look this over and help me understand some principles that should apply here." Nothing could be more exciting to a teacher of good government than that kind of a request from a government official. It has happened before, but not very often.

What new Judges are taught their Role Is

A beginning paragraph in the material which was troubling to him reads:

"The full role of the judge is not well understood. Most people are familiar with the trial judge's role as a courtroom referee. We picture such jurists ruling on evidentiary objections, maintaining order, and instructing the jury as to how it should proceed. It is an undeniably important function. However, judicial power extends well beyond the disposition of individual cases. As explained below, judges actually make law. Judge-made law is called the common law, and it is just as authoritative as the statutes enacted by the legislature or the people. In addition, judges have an oversight power known as judicial review. It enables them to declare acts of other public officials, and even the voters, 'unconstitutional.' It is an equally significant power. The exercise of either of these powers can profoundly change the public policies of the state."

Under the subheading, "How Judges Make Law and Public Policy" some excerpts are as follows:

"When appellate courts review individual cases they do not merely determine who should win or lose. Rather, they explain their reasoning in published written opinions. The opinions set forth the legal principles that lower courts must follow in future cases. Arizona's common law currently fills over two hundred volumes and is as detailed as any statutory scheme.

"The common law changes over time, but it evolves slowly. Appellate judges generally adhere to the principle of stare decisis , which literally means 'let the decision stand.' In plain English, courts strive to follow their prior rulings. Only on rare occasions will an appellate court completely abandon a common law principle in favor of an entirely new legal rule. The decision that does this is often described as a 'landmark' decision."

"The courts' interpretative role is especially significant when constitutional provisions are called into question. Constitutional provisions are typically written in broad language. This gives the courts even more leeway. An activist judge can use a vague provision to expand the law in new directions."

Under the subheading of Judicial Review, the material reads:

"Judges not only have the power to make new laws, they also have the power to strike down laws made by others. Courts can void statutes and constitutional provisions passed by the legislature or the people. And using their power of judicial review, they can also strike down any official act of the governor or other public official. This power, which was established by a landmark U.S. Supreme Court case in 1803, [ Marbury v. Madison ] gives the courts the last word on all questions of constitutional interpretation. Accordingly, whenever a statute, rule, ordinance, or governmental act is challenged on the ground that it conflicts with the state or federal constitution, the courts have the authority to declare the law or act 'unconstitutional' (and therefore unenforceable). Theoretically, judges cannot void laws simply because they personally dislike them-that would usurp the power of the other branches. However, as suggested above, constitutional interpretation can be a fairly loose business. Judges are sometimes accused of crossing the line and engaging in improper policy making when they render controversial constitutional rulings." (McClory, Toni, Understanding the Arizona Constitution , University of Arizona Press, 2001, pp. 118-122)

Throughout the material, examples are given of how activist judges have changed long standing legal policies set by the people and the legislature of our state and how these judges have exercised extensive here-to-fore unused power over the people and over the other branches of government to bring about radical changes in public law, even after the people or their representatives in the legislature have specifically rejected those proposed changes.

Good people honestly seek answers-our goal is to help them find the answers

I am so grateful for the wise and good people who may instinctively know these procedures do not promote freedom and liberty and do not protect the rights of the people. When these people come and say, as did my friend, "I don't feel right about this. Are there better ways to think about these challenges?"-that confirms my belief that there are many out there who know something is awry and they are looking for answers. Our job is to help them hear the answers of the Founders-the ones who have had the answers all along.

Setting Up a Guardian for the Constitution

The Founders knew that even with the concepts of limited powers, separation of powers, and checks and balances, everyone would still need to be very watchful-an effective guardian so to speak-just in case these concepts were too strongly violated. The Constitution declares the Constitution to be the supreme law of the land, but it did not clearly assign to any one branch the responsibility to take action when the Constitution was violated. Two great constitutionalists differed on who this "guardian" should be. Thomas Jefferson thought it should rest with all three branches and the people, through the system of checks and balances, but his cousin, John Marshall, thought the Supreme Court should be the guardian. When Marshall, as Chief Justice, so declared in the case of Marbury v. Madison , Jefferson denounced such action as an unconstitutional power grab and warned it would lead to judicial tyranny and even eventually to the dissolution of the union. He said so much power should never be given to a small group of human beings.

Judiciary was not given power over the Legislative or Executive

Jefferson reasoned:

"You seem to think it devolved on the judges to decide on the validity of, but nothing in the Constitution has given them a right to decide.. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action, but for the legislature and executive also in their spheres, would make the judiciary a despotic branch."

Some time later he stressed the same point even more emphatically:

"The Constitution intended that the three great branches of the government should be coordinate, and independent of each other. As to acts, therefore, which are to be done by either, it has given no control to another branch.... It did not intend to give the judiciary ... control over the executive.... I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, and denounced as not law."

And again:

"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."

Can the Judiciary force changes in public policy?

Jefferson continues:

"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." (The Making of America, pp. 573-4)

Judicial Review becomes the precedent

In spite of Jefferson's protests, Marbury v. Madison became the milestone case which gave the Supreme Court "judicial review" or the last say on what was constitutional and what was not. No doubt one of the main reasons for this 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.

But on what basis should the courts be interpreting the law?

Even with the power of judicial review, the courts should have interpreted the law based on reasoning of those who passed the law rather than current and sometimes radically different thinking of the judges. Said Jefferson:

"On every question 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." (The Making of America, pp. 576)

In exercising the power of judicial review, 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. The federal model represents a poor and dangerous example which is being followed by state after state in the conduct of state judicial affairs. My newly elected Justice of the Peace friend is confronting the problem on the front lines.


Earl Taylor, Jr.