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.
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.
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?
"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."
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.
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.