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Monday, February 27, 2012

Five Judicial Myths

This is such a good article I had to post it in its entirety. If you want the footnotes and the original article you can find them here.

Despite what we hear today . . .


A. Federalist #51: “the legislative authority necessarily predominates.1

B. Federalist #78: “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will. . . . The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. . . . [T]he judiciary is, beyond comparison, the weakest of the three departments of power. . . . [and] the general liberty of the people can never be endangered from that quarter.2

C. Congress determines the operation of the Judiciary, not vice versa (Congress sets the number of judges and courts; what issues may come before the courts; judges’ salary and compensation; how often the courts meet and the length of their sessions; and just as Congress can establish and set the number of lowers courts, so, too, can Congress also abolish them; etc.)

D. Robert Wright, officer in the Revolution, Maryland judge, early U. S. Senator: “[C]ongress can establish legislatively a court, and thereby create a judge; so they can legislatively abolish the court and eventually annihilate the officer…the inferior courts are creatures of the legislature, and that the creature must always be in the power of the creator – that he who createth can destroy.3

E. William Giles, member of the first federal Congress under the Constitution: “Is that [the Judiciary department] formed by the Constitution? It is not…It is only declared that there shall be such a department, and it is directed to be formed by the two other departments, who owe a responsibility to the people….The number of judges, the assignation of duties, the fixing of compensations, the fixing the times when, and the places where, the courts shall exercise the functions, &c., are left to the entire discretion of Congress. The spirit as well as the words of the Constitution are completely satisfied, provided one Supreme Court be established….Congress may postpone the sessions of the courts for eight or ten years, and establish others to whom they could transfer all the powers of the existing courts.4

F. As Rep. Steve King correctly explains, “Constitutionally, Congress can reduce the Supreme Court to nothing more than Chief Justice Roberts sitting at a card table with a candle” – a power that the Judiciary cannot reciprocally exercise over Congress.


A. John Dickinson, signer of the Constitution: “[W]hat innumerable acts of injustice may be committed – and how fatally may the principles of liberty be sapped – by a succession of judges utterly independent of the people?5

B. Thomas Jefferson: “It should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent is absolute also; in theory only, at first, while the spirit of the people is up, but in practice as fast as that relaxes. Independence can be trusted nowhere but with the people in mass.6

C. Nathaniel Chipman, office in the Revolution, early Member of Congress, U. S. federal judge, Chief Justice of Vermont Supreme Court: “If the judges are made thus independent . . . they will become a dangerous body.7

D. Jonathan Mason, law student trained by John Adams and an early Member of Congress: “The independence of the judiciary so much desired will – if tolerated – soon become something like supremacy. They will, indeed, form the main pillar of this goodly fabric; they will soon become the only remaining pillar, and they will presently be so strong as to crush and absorb the others into their solid mass.8

E. Thomas Jefferson: “We think, in America, that it is necessary to introduce the people into every department of government. . . Were I called upon to decide whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of the laws is more important than the making them.9

F. Joseph Nicholson, early Member of Congress, successfully managed the impeachment of multiple early federal judges: “Give [judges] the powers and the independence now contended for and . . . 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…after being clothed with this arbitrary power, they are beyond the control of the nation. . . . 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 on 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.10


A. James Madison: “But the great objection . . . is that the Legislature itself has no right to expound the Constitution – that wherever its meaning is doubtful, you must leave it to take its course until the Judiciary is called upon the declare its meaning. . . . I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits.11

B. Elbridge Gerry, signer of the Declaration and a framer of the Bill of Rights: “It was quite foreign from the nature of [the judiciary’s] office to make them judges of the policy of public measures.12

C. Luther Martin, framer of the Constitution and Attorney General of Maryland: “A knowledge of mankind and of legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature.13

D. John Randolph of Roanoke: “[I]f you pass the law, the judges are to put their veto upon it by declaring it unconstitutional. Here is a new power of a dangerous and uncontrollable nature contended for…The power which has the right of passing – without appeal – on the validity of laws is your sovereign.14

E. Thomas Jefferson: “O]ur Constitution. . . . has given – according to this opinion – to one of [the three Branches] alone the right to prescribe rules for the government of the others – and to that one, too, which is unelected by and independent of the nation. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary which they may twist and shape into any form they please.15

F. Rufus King, signer of the Constitution, framer of the Bill of Rights: “The judges must interpret the laws; they ought not to be legislators.16

G. John Randolph of Roanoke: “The decision of a constitutional question must rest somewhere. Shall it be confided to men immediately responsible to the people – the Congress, or to those who are irresponsible…the judges?....[a]re we [Congress] not as deeply interested in the true exposition of the Constitution as the judges can be? With all the deference to their talents, is not Congress as capable of forming a correct opinion as they are? Are not its members acting under a responsibility to public opinion which can, and will, check their aberrations from duty?17

H. Thomas Jefferson: “[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.18

I. James Madison: “[R]efusing or not refusing to execute a law, to stamp it with its final character. . . . makes the Judiciary department paramount in fact to the Legislature, which was never intended and can never be proper.19

J. Federalist #81: “[T]here is not a syllable in the plan [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution.20

K. Thomas Jefferson: “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. . . . [A]nd their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective.21

L. President Andrew Jackson: “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. . . . The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive.22

M. Abraham Lincoln: “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court. . . . At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers, having . . . resigned their government into the hands of that eminent tribunal.23


A. The Constitution says that judges hold their office only during “good behavior” (Art. III, Sec. 1).

B. Federal judges may be removed by Congress for misbehavior, which, historically, did not include only criminal behavior but also other misbehavior.

C. Historically, federal judges have been removed from the bench by Congress for contradicting an order of Congress, for profanity, for rude treatment of witness in a courtroom, for drunkenness, for judicial high-handedness and a variety of other reasons.24

D. The Constitution provides six clauses on impeachment – the most often-mentioned subject in the Constitution.25

E. The Founding Fathers and early legal authorities were clear about the ground for impeachment:

1. James Wilson, signer of the Constitution, original Justice on the U. S. Supreme Court: “[I]mpeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.26

2. Justice Joseph Story, a “Father of American Jurisprudence” appointed to the Supreme Court by President James Madison: “The offenses to which the power of impeachment has been and is ordinarily applied as a remedy. . . . are aptly termed political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests.27

3. John Marshall, Chief Justice of the U. S. Supreme Court: “[T]he present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment.28

4. George Mason, the “Father of the Bill of Rights”: “attempts to subvert the Constitution.29

5. Alexander Hamilton: “the abuse or violation of some public trust. . . . [or for] injuries done immediately to the society itself.30

6. George Mason, “Father of the Bill of Rights,” and Elbridge, signer of the Declaration and Framer of the Bill of Rights: “mal-administration.31

7. William Rawle, legal authority and author of early constitutional commentary: “the inordinate extension of power, the influence of party and of prejudice32 as well as attempts to “infringe the rights of the people.33

8. Justice Joseph Story, a “Father of American Jurisprudence” appointed to the Supreme Court by President James Madison: “unconstitutional opinions” and “attempts to subvert the fundamental laws and introduce arbitrary power.34
F. Federalist #65: “[T]he practice of impeachments [is] a bridle in the hands of the Legislative body.35

G. Justice James Iredell, a ratifier of the Constitution, placed on the Supreme Court by President Washington: “Every government requires it [impeachment]. Every man ought to be amenable for his conduct. . . . It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose although he may be a man of no principle, the very terror of punishment will perhaps deter him.36


A. George Washington: “[T]he fundamental principle of our Constitution... enjoins [requires] that the will of the majority shall prevail.37

B. Thomas Jefferson: “[T]he will of the majority [is] the natural law of every society [and] is the only sure guardian of the rights of man. Perhaps even this may sometimes err. But its errors are honest, solitary and short-lived.38

C. The Judiciary is now regularly anti-majoritarian.

D. The primary purpose of the Supreme Court is not to protect the minority from the majority.

E. The primary purpose of the Bill of Rights is not to protect the minority from the majority; the purpose of the Bill of Rights is to protect every citizen, whether in the minority or the majority, from the intrusion upon their rights by government.

F. Congress is a better guardian of the people and the minority than are the courts.

G. Federalist #51: “The members of the Legislative department . . . are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. . . . they are more immediately the confidential guardians of their rights and liberties.39

H. In 1875, Congress banned all segregation,40 but in 1882, the Supreme Court struck down that law.41 While the Court is often praised today for ending segregation in Brown v. Board of Education in 1954, what the Court actually did in that case was only to reverse its own position that had kept segregation alive 70 longer than Congress’ ban.

I. Thomas Jefferson: “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 [the people] 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.42


  1. Woah. I came to this after I searched you on google. (it's abby

  2. I absolutely agree with you that legislators should determine the constitutionality of bills before voting for them. But the sad truth is that almost none of y'all ever take the time to bother with that. Last year, the Tennessee legislature made it a CRIMINAL ACT to post a mean pictures over Facebook. And it was near-unanimous! And even you voted for it!

    Conversely, with the limited exceptions of a few rogue decisions like Roe v. Wade and Bowers v. Hardwick, there are very few examples of the courts inventing rights that should not be (except in a few leftist states where the legislatures probably would have soon done so anyway). And even in those cases, the Congress and President often tend to be complicit. But in contrast, there are ZILLIONS of examples of legislators inventing rights that should not be (e.g., Social Security, or on the state level, the right to be free of offense on Facebook).

    There are also times where we see the opposite problem — where courts FAIL to protect rights, such as in Kelo v. City of New London. But in those examples, that is just the bad legislators and the bad judges conspiring together.

    So in sum, I do think it would be good if legislators JOINED the judges in protecting rights. But if no one protects rights, the people are screwed.

  3. In the State of Tennessee we have both invented a right (to unconstitutionally appoint appellate court judges) and removed two rights (the right to run in, and the voter's right to a contesting judicial election) with the passage of the State's Retention-Election Statute.
    We have the Governor Haslam, members of the Court (and Bar) and even Republican Legislators (Senator Campfield excluded) who are violating their official oaths and voting for a blatantly unconstitutional governmental power grab, engineered during the early seventies (at the height of the Vietnam War) and then re-upped again during the last Legislative session with a Republican majority.
    It is scandalous. I personally favor merit selection of the highest Court but there is no way someone can claim to support constitutional government and vote to maintain the current State Retention-Election of Judges statute.
    This is a single issue litmus test for Republicans in Tennessee.

  4. Stacey - you need to offer a bill to change the retention election for judges so that it requires them to receive a majority of the eligible voters to vote in favor of retaining them in order for them to stay on. Assuming we can't get to actual elections as required by the Constitution, at least we would turn over the court at every election and maybe people will get fed up with having to find new judges every time.


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