Posted on 05/18/2005 7:27:14 AM PDT by Law
In a recent opinion against judicial activism, Alabama Supreme Court Justice Tom Parker reproduces a stunningly precient 200-year-old quote from a former Congressman and judge about the dangers of permitting judges to claim the final authority to interpret the Constitution:
"Just before Marbury v. Madison was decided (1803), Congressman Joseph Nicholson, a former judge, warned what might happen if a right of judicial review of constitutional questions was permitted to become a doctrine of judicial supremacy:
By what authority are the judges to be raised above the law and above the constitution? Where is the charter which places the sovereignty of this country in their hands? Give them the powers and the independence now contended for, and they will require nothing more; for your government becomes a despotism, and they become your rulers.
They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country, differing essentially with us upon the great principles of government; and after being clothed with this arbitrary power, they are beyond the control of the nation, as they are not to be affected by any laws which the people by their representatives can pass.
If all this be true; if this doctrine be established in the extent which is now contended for, the constitution is not worth the time we are now spending upon it. It is, as it has been called by its enemies, mere parchment. For these judges, thus rendered omnipotent, may overleap the constitution and trample on your laws; they may laugh the legislature to scorn and set the nation at defiance.
Judge Nicholson's 200-year-old warning could hardly be more timely than it is today. Despite everything in the text of the Constitution, its history, and the expressed intent of the Framers being completely contrary to the notion of judicial supremacy, the United States Supreme Court has presumptuously arrogated such a position for itself simply by declaring it so.”
Some of my favorites.
U.S. vs. DOUGHERTY (1972) [D.C. Circuit Court of Appeals]: The jury has...."unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge."
THOMAS JEFFERSON: "To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."
THOMAS JEFFERSON (1789): "The new Constitution has secured these [individual rights] in the Executive and Legislative departments: but not in the Judiciary. It should have established trials by the people themselves, that is to say, by jury."
SAMUEL CHASE (Justice, U. S. Supreme Court and signer of the Declaration of Independence; in 1804): "The jury has the right to determine both the law and the facts."
Justice OLIVER WENDELL HOLMES (Horning v. District of Columbia, 249 U.S. 596 (1920)): "The jury has the power to bring a verdict in the teeth of both law and fact."
U.S. v. DOUGHERTY, 473 F.2d. 1113, 1139 (1972): "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge...."
U.S. SUPREME COURT (State of Georgia v. Brailsford, 3 DALL. 1,4): "...it is presumed, that the juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still, both objects are within your power of decision. You have a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy."
THEOPHILUS PARSONS (2 Elliot's Debates, 94; 2 Bancroft's History of the Constitution, p. 267): "If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty, -- For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time."
LORD DENMAN, (in C.J. O'Connel v. R. ,1884): "Every jury in the land is tampered with and falsely instructed by the judge when it is told it must take (or accept) as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case."
Treason at the worst, they should be Impeeched and removed from the Bench Immediately. They have introduced Foreign interpretation into US LAW!!
Alabama Patriot Ping
Ping.
"[T]he 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."
"The ... question, whether the judges are invested with exclusive authority to decide on the constitutionality of a law, has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the executive or legislative branches. ...
The constitutional validity of the law or laws again prescribing executive action, and to be administered by that branch ultimately and without appeal, the executive must decide for themselves also whether, under the Constitution, they are valid or not. So also as to laws governing the proceedings of the legislature, that body must judge for itself the constitutionality of the law, and equally without appeal or control from its coordinate branches.
And, in general, that branch which is to act ultimately and without appeal on any law is the rightful expositor of the validity of the law, uncontrolled by the opinions of the other coordinate authorities."
I've always wondered about this, but at the time--years ago-- I didnt know that it was called judicial supremacy, but the title is very indicative of the judges' actions. Anyway, I've always wondered how does the Supreme Court legislate whether abortion is legal or illegal. How did the justices come up with that ruling? What rationale did they use? And what about the unborn human being that is killed during this procedure? What about his/her rights? The American people must keep a watchful eye on the judiciary so that the will of the people will not be infringe upon.
What I take from the quotes that I posted is that judges have snatched power away from the people who make up the juries. In 1894 the supreme court ruled that juries need not be told their rights. Personally I think the judicial activism we see today is a direct consequence of the really bad decision.
You're absolutely correct. One way to do this is to insist that our elected executives use their own right and responsibility to interpret the constitution and decline to enforce unconstitutional judicial opinions. When faced by unconstitutional court rulings, President Bush should follow the example of President Jackson when he vetoed a bill authorizing a Bank of the United States, also quoted by Justice Tom Parker in his opinion:
"It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled....
"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.
The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."
True. But judges have also seized power from the executive and legislative branches of government, which branches are the people's branches. So it's all part of the same thing.
Judges have gone from simple mediators to law givers and law makers and that's a dangerous thing.
A good find!
Just my opinion on the matter.
These all deal with a jury's authority to ignore the law. But, that is not the issue at stake with judicial review. No jury is going to decide the constitutionality of a statute. So, the issue remains: who will decide whether a law is constitutional or not? If we allow the legislators to decide, then there is no check on the legislative power. If we allow the executive to decide, then there is no check on the executive power. That is how the power of judicial review arose. Someone has to decide whether the legislative and executive branch have taken an action which violates the Constitution. That has to be the judiciary. Otherwise, every issue becomes a potential violent conflict.
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