Posted on 02/12/2019 8:45:08 AM PST by george76
Americans today are inclined to accept, without thinking much about it, the idea of judicial supremacy.
We think that the federal courts—and especially the Supreme Court—have an extensive discretion to decide for us the big questions of public policy that come before the nation.
After all, the Supreme Court has taken upon itself the authority to decide whether and to what extent abortion may be regulated, and, more recently, to decide the definition of marriage.
Moreover, we think that that court’s decisions on such questions are final, that there is no way the people or their representatives can effectively assert their own understanding of the Constitution against what was laid down by the judges.
As I explain in a new First Principles paper for The Heritage Foundation, Americans should reconsider this uncritical embrace of judicial supremacy.
Judicial supremacy is inconsistent with the much more modest conception of the judicial power put forward by the American Founders. Moreover, it is inconsistent with the fundamental American aspiration to be a self-governing people.
The classic founding exposition of the judicial power is provided by Alexander Hamilton in The Federalist Papers. There, Hamilton emphasizes the limited character of the judicial power envisioned by the Constitution.
A properly functioning judiciary, he contended, will be the “least dangerous branch” of the federal government and the “weakest of the three departments of power.”
The power of judicial review, Hamilton explained, is essential to maintaining a limited Constitution. But judicial review does not bestow on courts a wide-ranging discretion to decide what is good and just for the country.
Rather, it empowers courts to strike down laws only in those cases in which there is an “evident opposition” between the law and the Constitution.
The judicial power, in other words, exists to defend the clear provisions of the Constitution, not to empower judges to find new, previously unheard-of rights, based on novel theories.
Moreover, Hamilton reminds us that the Founders never intended the courts to have an unfettered power to determine the meaning of the Constitution without having to answer to the people or their political representatives.
After all, Hamilton presents the judiciary as the weakest branch in part because it has to “ultimately depend on the aid of the executive arm for the efficacy of its judgments.”
That is as much as to say that the executive may decline to lend its aid to the courts when they have overstepped the proper bounds of their power.
Finally, The Federalist Papers remind us that judges who abuse their judicial authority are subject to impeachment. Judicial usurpation of the powers of the other branches of government, Hamilton argued, would be deterred by “the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other.”
The power over impeachment “alone” would provide “a complete security” against an overreaching judiciary, because there “can never be a danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the resentment of” Congress, which possesses “the means of punishing their presumption, by degrading them from their stations.”
Recovering the Founders’ limited conception of the judicial power is necessary to preserving the integrity of the American people as a self-governing people.
By rejecting judicial supremacy, we ensure that when the people’s will is thwarted by the courts, the people, through their political representatives, still retain the authority to reassert their will when they have not been persuaded by the reasoning of the judges.
That surely is essential to the self-respect of a self-governing people, that they must be persuaded—not commanded—by the courts.
That, too, is the promise of the American experiment: self-government under the laws and the Constitution, not under the discretionary supervision of judges.
The communists Federal and even States, courts have hijacked the Federal and State governments. And as long as not challenged by the SC and the Congress it will be stronger as time goes on. Trump should ignore all action by the Federal Courts that limits his Constitutional powers. If not we will become a communists dictatorship.
Judicial Supremacy has been accepted in toto by all parts of the Government already. That cannot be undone until/unless the Social Democrats take power in 2020 at which point the entire Constitution will be voided and the Trump judges will all be impeached or otherwise removed to be replaced by Madurian judges. The Court and courts will then be whatever the SDs want them to be and any differentiation or separation of powers will be illusory.
Impeachment of activist judges should be a resurrected option. And executive disregard or refusal to enforce as well.
Judges sbould not make law.
Modern day Americans, especially the recent third world immigrants and leftists, tend exclusively to think of judges as meta humans. Look at the deification of Ginsburg as a perfect example. It’s Leninlike how she is assumed to be beyond the reach of death.
Not really. It only goes one direction. If leftist get their policy imposed, then yes, the Judiciary is supreme and people go to jail for not agreeing.
If a conservative policy decision is rendered, the left dismisses it and pays no consequence for continuing to attack the principle. Look at what has happened to Jack Phillips when the Court stated that expressed animus against religious beliefs is not allowed. They sued him again.
...”not to empower judges to find new, previously unheard-of rights, based on novel theories”...
Fine then succinctly define those rights enumerated in the 10th amendment which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Which rights not delegated are reserved to the people and which are reserved to the States? Which are previously unheard of? Which are not previously unheard of?
The 10th provides for the allowance of rights that are endowed by our creator but not written in another amendment. I do have the right to relieve myself in the bathroom correct? I have the right to eat? These aren’t otherwise defined. If every right must be precisely defined then the document would become infinitely long.
I concur the courts have overstepped their bounds. They are to interpret the law as written and ensure that the rights of the people AND the States are not breached. They have failed in this manner. However, the approach taken by the article is flawed.
It would be such supreme justice if Ruth Bader Ginsburg could be impeached before she dies.
Judges as meta humans? Baaaaaaarrrrrrrrffffffffff!
They’re all lawyers first. A profession full of falseness, alcoholism, mental illness and drug abuse.
Self-serving lawyers have pushed this judicial power fiasco. And they proudly self-identify as and hugely support Democrats.
American lawyers — enemies within.
And the courts aren't even defending the clear provisions of the Constitution; easily 90% of what the federal government does nowadays is outside its enumerated powers.
“Judicial Supremacy has been accepted in toto by all parts of the Government already.”
That’s the sad reality. What’s even sadder is number of republicans(90%) that believe the courts are the final arbiters on everything.
90% believe it and 90% of the rest accept it.
NEWT ON RUNAWAY JUDGES
5 MINUTES ON HOW THE FOUNDERS DEALT WITH JUDICIAL TYRANNY
https://youtu.be/4MSvyk3X3wU
The 10th Amendment exists so that all those rights do not need to be defined. The problem is that States are supposed to identify and protect those rights. Without that happening exclusively, the 10th Amendment makes no sense.
If the Federal government - via the judiciary - is creating all these “rights” - often times merely privileges for protected groups - then what do you suggest the government and/or the people do to reign in this aristocracy of philosopher-kings? What do you feel is misguided within the article?
Not this one. This was about a week ago and I have said this for years.
"I'm really sick and tired of the whole damn court. Nine people in robes do NOT have the final say in our republic. The people are the boss, period. The supreme court is just that, the highest court, they are not the highest authority. That title lies with the people."
Judicial supremacy became an issue when civil service protection for government employees was imposed.
Before, judges could issue whatever orders they wanted, but bureaucrats who obeyed the judge rather than the president could be fired at will. The judges knew this, so they didn’t push their luck.
“Rather, it empowers courts to strike down laws only in those cases in which there is an “evident opposition” between the law and the Constitution.”
“The judicial power, in other words, exists to defend the clear provisions of the Constitution, not to empower judges to find new, previously unheard-of rights, based on novel theories.”
Those are the essentials what the SCOTUS is and is not to be about.
I would only add, as an extension, that every so-called “precedent” is not only NOT sacred writ, but is fully open to examination as to whether or not the two essentials noted above were kept true when the “precedent” was opined by an earlier court.
I would add further that each new session of a Supreme Court is as each new session of Congress, in which any acts in any prior session can be motified or revoked outright. One Congress or one Supreme Court does not have a Constitutional mandate to merely say amen to anything a prior Congress or Supreme Court has done.
Bingo!
You will have made our resident pseudo legal authorities very angry with that notion, stand by for incoming.
Remember when Jebbie had to kill Terry because a senile blind family court judge said so?
There are only limitations when they are enforced.
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