“In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” –Thomas Jefferson
The idea of the federal court system determining the constitutionality of laws has become as common as hot dogs and apple pie in America. Laws are constantly challenged regarding their constitutionality, and inevitably these challenges wind up being decided by a federal court. The common belief is that the U.S. Supreme Court is the final arbiter of the U.S. Constitution.
The problem is, there is no place in the U.S. Constitution that gives the courts that kind of authority.
The judges of the British judiciary, during the time of the American Revolution, carried nearly as much power as the king. The smug old men wore their powdered wigs arrogantly. Save for the occasional kingly correction, the rulings of the judges were final. They served the aristocracy, and suppressed dissent. The law was interpreted by these powerful judges, especially when it was in accordance to the whims of the monarchy.
When George Washington was elected president of the United States, the people around him asked what he would like to be called. Your majesty? Your excellency? Your honor?
Washington told his admirers that Mr. President would be sufficient. Like most of the founders, Washington did not desire status for the sake of status. A lust for position was better left to the aristocrats of Britain, as far as Washington was concerned. No American was better than any other. Some were fortunate enough to serve the new country in an official capacity, but that opportunity belonged to anyone that should decide to pursue it. In America there was no aristocracy, no preferentially treated position of privilege, and no elite ruling class.
As a result of the founder’s negative opinion of elitism, the word “uniform” was used often in the U.S. Constitution. “All men are created equal” was more than just a phrase from the Declaration of Independence.
As with today, there were those back then that believed governments run best when guided by a political elite made up of educated aristocrats who have some hidden wisdom that enables them to recognize the presence of a General Will. These folks looked up to the British system of aristocracy, mercantilism, and empire. The only obstacle between these elitists, and empire, was the Constitution, and the vote of the people – which brings us back around to the courts.
The attempt to centralize the United States Government into a system reminiscent of the British system failed. Alexander Hamilton’s Bank of the United States did not work, and the political headway achieved through Adams’ presidency was all but erased when Thomas Jefferson won the presidency in the close election in 1800. Unable to achieve their statist end through political means, Hamilton, and his fellow big government cronies, turned to the judiciary, and more specifically, Chief Justice John Marshall.
During John Adams’ final moments in the presidency, he appointed a whole host of “midnight judges” (appointing 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801) in the hopes of retaining federalist control of the courts as Jefferson’s Democratic-Republicans gained control of the Congress, and Jefferson himself accepted the presidency.
While Adams was still in office, most of the commissions for these newly appointed judges were delivered. However, unable to deliver all of them before Adams’ term expired, some of them were left to be delivered by the incoming Secretary of State, James Madison. Jefferson ordered them not to be delivered, and without the commissions delivered, the remaining new appointees were unable to assume the offices and duties to which they had been appointed to by Adams. In Jefferson’s opinion, the undelivered commissions were void.
One of those judges was a man named William Marbury. He sued, and the case worked its way up to the Supreme Court. After all of the dust settled, on February 24, 1803, the Court rendered a unanimous (4-0) decision that Marbury had the right to his commission, but the court did not have the power to force Madison to deliver the commission. Chief Justice Marshall wrote the opinion of the court, and in that opinion he wrote that the federal court system has the power of judicial review. Rather than simply apply the law to the cases, Marshall had decided based on case law that the courts have the authority to determine the validity of the law as well. This opinion, however, went against all of the limitations placed on the courts by the Constitution.
One of the most obvious fundamental principles of the Constitution is the limitations it places on the federal government. The Constitution is designed not to tell the federal government what it can’t do, but to offer enumerated powers which the authorities of the federal government are limited to. The powers are granted by the States, and any additional authorities must also be granted by the States. The process by which this can be accomplished is through the amendment process. Remember, it takes 3/4 of the States to ratify an amendment.
The power of Judicial Review, or the authority to determine if laws are constitutional, was not granted to the courts by the States in the Constitution. The courts took that power upon themselves through Justice Marshall’s opinion of Marbury v. Madison.
Let’s think about this for a moment. The federal courts are a part of the federal government. The Constitution was designed to limit the authorities of the federal government by granting only a limited number of powers. Judicial Review enables the federal government, through the courts, to determine if the laws that the federal government made are constitutional. In other words, the federal government, through Judicial Review, can determine for itself what its own authorities are. The Supreme Court took that power for itself (and a government that takes power, or should I say “seizes” power, is a tyranny in my book).
Do you think that is in line with the limiting principles the Founding Fathers originally set forth?
So, the idea that the federal courts, or the United States Supreme Court, has the authority to interpret the Constitution, and can decide if a law is constitutional or not, is unconstitutional. The myth has been perpetuated by the courts in the attempt to gain power, and work towards a more centralized big federal governmental system.
Adapted from “The Political Pistachio Blog” By Douglas V. Gibbs
Original available at http://politicalpistachio.blogspot.com/2011/04/myth-4-supreme-court-interprets.html