Recently, a rogue U.S. District Court Judge issued and a panel of the Ninth Circuit Court of Appeals affirmed one of the most egregious judicial decisions in American history, dramatically undermining and thus relegating the issue of the sovereignty of this nation to the courts and unelected judges. This was the culmination of decades of ever expanding judicial activism enabled by the failure of Congress to enforce its prerogatives and rein in this runaway usurper of political power. The matter of the supremacy and influence of the judiciary in a representative republic has been an issue of contention since this nation’s inception, as the founders, while geniuses in their overall concept of government, erred greatly in the creation of an unaccountable Judiciary by relying on a factious Congress to serve as a check and balance on a co-equal branch when necessary.
A major issue of debate during the Constitution ratification process in 1788 was the structure, power and control of the Judiciary. The issue was twofold: 1) the degree of independence and the level of accountability of federal judges; and 2) Judicial Review of laws and statutes passed by Congress.
This prompted Alexander Hamilton (a staunch defender of the current system), using the pseudonym “Publius,” to write in the Federalist Papers No 78 that the Judiciary would be the weakest of the three branches, as it would not be able to overpower the Congress since they controlled the purse strings and the President controlled the enforcement of the Courts’ decisions. Thus, the Courts would have to depend on these branches to uphold its judgements. Further, federal judges must have life tenure and thus independence; however, Congress could remove a sitting judge via impeachment for high crimes and misdemeanors. He also argued that the Courts should be tasked with the duty of reviewing statutes passed by Congress to determine if they are consistent with the Constitution as a means of restraint on the legislature. Hamilton further stated that because of the Courts’ inherent weakness in enforcing their judgements, the possibility of corruption affecting judicial reviews would be a non-issue.
Countering Hamilton’s argument was Robert Yates, using the pseudonym “Brutus” in the Anti-Federalist papers, who contended that his primary concern was that judges would substitute their will for the plain text of the Constitution. He wrote:
There is no power above them [the Courts] to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.
Thomas Jefferson, a staunch opponent of a powerful central government, also recognized the potential abuse of power by an out of control Judiciary and a recalcitrant Congress. In a letter to a Mr. Jarvis in 1820, Jefferson wrote:
You seem to consider the judges the ultimate arbiter of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our Judges and their power are the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of judges from that is quite dangerous.
Perhaps the most astute observer of the United States from afar was Alexis De Tocqueville who in 1835 published Democracy in America -- his reflections on America prompted by a nine-month tour. Among his observations were the following:
Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.
The President, who exercises a limited power, may err without causing great mischief in the state. Congress may decide amiss without destroying the union, because the electoral body may cause it to retract its decision. But if the Supreme Court is ever composed of imprudent or bad men, the Union may be plunged into anarchy or civil war.
The entire judicial debacle relative to the Executive Order issued by President Trump vis-a-vis immigration from certain countries is a giant leap forward into what all these men feared: that judges would substitute their will or political opinions for the text of the Constitution or statutes, thus, establishing a potentially uncontrolled oligarchy.
What Judge Robart and the Ninth Circuit Court of Appeals have taken upon themselves effectively is to determine that all refugees or visa holders must be let into the country regardless of national security considerations. That if Congress passes any law similar to the Executive Order it would be unconstitutional. That previous statutes passed by Congress clearly delineating a president’s power to limit immigration from nations deemed hostile are now null and void. The Judiciary, not the President or Congress, is now in charge of the nation’s sovereignty, as the Courts are the sole arbitrators of all immigration policy relating to either legal or illegal immigrants as well as refugees.
Daniel Horowitz, in his must-read book Stolen Sovereignty: How to Stop Unelected Judges from Transforming America, predicted this sort of scenario and offered a number of steps to combat an unbridled Judiciary. Among them are:
- Limit the jurisdiction of the Supreme Court per Article III, Section2, Clause 2 of the Constitution, which explicitly grants Congress the authority to regulate and limit the appellate jurisdiction of the Supreme Court. Even the first Chief Justice, John Marshall, acknowledged that the court has no jurisdiction other than what Congress grants it (except for a few spheres of original jurisdiction per Article III).
- Abolish or severely curtail judicial review for the lower courts as the Congress created and can break, divide, or regulate them at will. Per Article 1, Section 8 and the judicial vesting clause of Article III, Section1, the legislative branch has full authority over the creation of all courts below the Supreme Court.
- Defund enforcement of unconstitutional court decisions. As noted above in Federalist 78, Hamilton was unconcerned that the Courts would become all-powerful as they had no means of enforcing their decisions. Therefore, the executive branch could simply refuse to enforce their edicts and the Congress could cut off funding for enforcement in reaction to the court’s absurd behavior.
- Congress can redraw and change the boundaries of the circuit courts or even eliminate them entirely if they care to and create new ones with new judges.
However, central to any of the above steps is that Congress discharges its responsibility. Something that it has been loath to do as it is held captive to ideology, partisanship and self-aggrandizement. If this latest judicial debacle cannot spur them to action, then nothing short of national chaos will.
Nonetheless, the framers of the Constitution gave the citizenry one last opportunity to rein in a runaway Judiciary. A Constitutional Convention to amend the Constitution can be convened by the States per Article V. A convention to consider pre-agreed to amendments can be called by 34 states and any amendments adopted by the convention must then be ratified by 37 states.
Mark Levin in his seminal book The Liberty Amendments: Restoring the American Republic calls for such a convention to consider two amendments to rein in the Judiciary. The first, limit the terms of all federal judges to 12 years; and the second, Congress can overturn court decisions with the vote of 3/5 of both houses of Congress or 3/5 of the states (30) can vote to overturn judicial decisions.
Since Marbury v. Madison in 1803, the Federal Courts have been gradually aggregating more power to themselves than what the founders originally envisioned. However, over the past 50 years the Judiciary has become an out of control and unaccountable bludgeon beholden to the statists bent on transforming the nation.
In every electoral cycle an overwhelming majority of the populace is entirely focused on the entertainment aspect of the winner-take-all feature in elections while ignoring the unfettered role of the Federal Judiciary as a whole. It matters only on the margins whether it is a Donald Trump, a Ted Cruz or any constitutional conservative who may win the presidency, as any of their actions or policies the statists disagree with can be thwarted or interminably delayed by unending filings, appeals and judgements in the Courts. Unless and until the Congress acts or a Convention of the States is convened, America will continue to be held hostage by the Federal Judiciary as they proceed apace seizing the authority delegated to the President and Congress as these past few weeks have amply displayed.
By Steve McCann