OUR SUPREME JUDICIARY DEPARTMENT During our Constitutional Convention some of the delegates feared that the United States Congress they proposed to establish could potentially outgrow the authority constitutionally alloted to it, usurping powers rightfully belonging to the other two branches. So extended debates were had on the subject of using the veto power to provide a check on Congressional excesses. The debates ended with agreement to empower the President to veto any law passed by Congress, subject to subsequent override by two-thirds majority vote in both Houses.Several delegates weren't satisfied with this, and urged the Convention to empower the judiciary, as well as the president, to veto acts of Congress; and two different motions to this effect were introduced and debated. James Wilson, of Pennsylvania, moved that the veto power be held by the president together with "a convenient number of the national Judiciary." He thought it important that judicial power, as well as executive power, act to check the excesses of legislators. "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect," Mr Wilson said. After extended debate, the motion was rejected by a vote of 8-3
A bit later in the proceedings, James Madison, of Virginia, moved to insert, "all acts before they become laws should be submitted both to the Executive and Supreme Judiciary Departments, that if either of these should object 2/3 of each House, if both should object, 3/4 of each House, should be necessary to overrule the objections and give to the acts the force of law." This motion also went down by a vote of 8-3.
The record is clear and unambiguous; our founders decisively rejected the proposal that our "Supreme Judiciary Department" be allowed to veto laws it thought "unjust", "unwise," "dangerous," or "destructive." Our "Supreme Judiciary Department" has assumed that power anyway.
THE WEAKEST DEPARTMENT
Speakers at the Convention recognized that federal judges would refuse to enforce laws that were clearly unconstitutional. It was noted that some state judges had taken this position with respect to their own constitutions and their own state legislation, but only in cases where the constitutional violation was flagrant and clear. Under these conditions, the delegates seemed to approve of the practice, although their approval is not expressed in the Constitution.
The rationale for this practice was elegantly stated by Alexander Hamilton in Federalist Number 78; he was writing to allay concern that an independent judiciary following this practice would enjoy "a superiority of the judiciary to the legislative power." Hamilton, who had played a prominent role at the Convention, assured his fellow citizens that this was not the case. He explained that the U. S. Constitution would flow directly from the supreme authority of the people. Legislative acts under it would flow from limited powers the people had delegated to their servants, the legislators. Judges, who are also their servants, would be duty bound to explicate and enforce the law as they find it. When they find "an irreconcilable variance between (the Constitution and the statute) . . . the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." Hamilton went on to say;
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to the will of the people, the judges ought to be governed by the latter rather than the former.It goes without saying that, under our Constitution, judges have no legitimate power to substitute their personal assessment of the current "will of the people" for its earlier expression in the ratification of the various constitutional articles and amendments. That's what we have elections for. It also goes without saying that judges have no legitimate power to substitute their own policy preferences for "the will of the people." They are only our "agents," after all.
Earlier in Federalist 78, Hamilton had explained that the judiciary was the "least dangerous" branch of government, having neither "force nor will, but merely judgement," and was "beyond comparison the weakest of the three departments of power." That was the intention of the framers of the Constitution, and that was the intention of "We the People" when we allowed the Constitution to be ratified.
For a few years, that intention was actually complied with. In the early days of the Republic, the Supreme Court had to meet in a small room in the basement of the Capital. The first time it tried to flex its muscles and impose a doubtful precedent on "We the People," we slapped it down, overruling its decision in Chisholm v. Georgia by adopting the Eleventh Amendment.
It was hard to find prominent people willing to serve on the Court because the job lacked power and prestige. John Jay, President Washington's first choice for the position of Chief Justice, stalled for a while before accepting the appointment, because he hoped for something better. After accepting the job he resigned within a few years to become governor of New York. A New York newspaper characterized the move as a "promotion." It took Washington three tries to recruit a replacement.
However, our judicial branch did not long remain "the weakest of the three departments of power;" and its members soon began exercising "will" as well as "judgement." George Washington left office in 1797 to be replaced by our second president, John Adams. Both Washington and Adams were Federalists, as were early majorities in both houses of Congress. The Federalists turned out to be a little too dismissive of the democratic ideals Americans had fought for in the Revolution. Washington had kept their worst instincts in check and had retained the trust and deep affection of the people.
Under John Adams, however, the worst Federalist tendencies took center stage. They tried to run America more or less the same way the King and Parliament ran Great Britian. In the election of 1800, "We the People" denied John Adams a second term, electing Republican Thomas Jefferson to replace him; and we threw most of the Federalists out of Congress as well.
Adams and his friends in Congress used their last few months in office to pack the federal courts with Federalist politicians they hoped would expand judicial power to override "the will of the people." They appointed a new Chief Justice named John Marshall to take charge of the whole program. Marshall performed brilliantly; within two decades Thomas Jefferson was complaining that the "federal judiciary" was "an irresponsible body, . . . working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all (power) shall be usurped from the states".
A decade after that, Alexis de Tocqueville observed in Democracy in America that, " in no country are the judges so powerful as there" and "Federal judges decide upon their own authority almost all the questions most important to the country." It's never been clear where that "authority" came from; it certainly did not come from the Constitution.
Someone should tell the Supreme court.