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Bringing the Courts Back Under the Constitution
NEWT 2012 Position Paper Supporting
Item No. 9 of the 21st Century Contract with America:
Restore the proper role of the judicial branch by using the clearly delineated
Constitutional powers available to the president and Congress to correct, limit, or
replace judges who violate the Constitution.
_______________________________
The Greatest Dangers to Liberty
Lurk in Insidious Encroachment
By Men of Zeal
Well-Meaning but Without Understanding
Justice Louis D. Brandeis (1928)
Engraved in Stone, U.S. Capitol Building (H120A)
_______________________________
Summary
The Founding Fathers felt strongly about limiting the power of judges because they had suffered
under tyrannical and dictatorial British judges.
In fact, reforming the judiciary, along with “no taxation without representation”, was among the
American colonists’ principal complaints about the British Empire prior to the revolution. A
number of the grievances in the Declaration of Independence relate to judges dictatorial and
illegal behavior.
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As a result the Constitution provided for a narrowly defined and limited judiciary as Alexander
Hamilton made clear in the Federalist Papers.
Since the New Deal of the 1930s, however, the power of the American judiciary has increased
exponentially at the expense of elected representatives of the people in the other two branches.
The judiciary has acted on the premise of “judicial supremacy,” where courts not only review
and apply laws, but also actively seek to modify and create new constitutional law from the
bench that the Supreme Court has asserted should be binding on the other two branches.
Judicial supremacy operates on the assumption that a Supreme Court decision on constitutional
interpretation is final for all branches of government unless the Court reverses itself in the future,
or a constitutional amendment is passed. The result is that courts have become more assertive
and politicized to the point of an abuse of power. As federal courts have intervened in sectors of
American life never before imaginable, the public has increasingly come to view them as an
usurpative device for unelected rulers. This abuse of power and loss of public confidence
amounts to a constitutional crisis.
Yet judicial supremacy only survives due to the passivity of the executive and legislative
branches, which have refused to use their respective powers to correct the Court.
Said House Minority Leader Nancy Pelosi in 2005 about the Supreme Court’s decision in Kelo v.
New London, which weakened citizen protections against government seizure of property: "It is a
decision of the Supreme Court. If Congress wants to change it, it will require legislation of a
level of a constitutional amendment. So this is almost as if God has spoken. It's an elementary
discussion now. They have made the decision."
Such a view holds that only a constitutional amendment can limit or overturn a Supreme Court
decision on constitutional questions. But surely anyone holding this view would concede that
the Supreme Court could reverse itself, which it has done well over 100 times. If Supreme Court
decisions can only be overturned by a subsequent court decision or by constitutional amendment,
then that would mean that that a Supreme Court decision interpreting the Constitution has the
force of a constitutional amendment.
This view is fatally flawed. The Founding Fathers created a system of checks and balances
among the three federal branches that was intended to operate in the normal course of governing.
It was precisely this balance of power between the three branches that the founding fathers
believed would protect freedom. They based their understanding of a constitutional division of
powers on Montesquieu's writing which would have explicitly rejected any one branch's
supremacy. The amendment process was reserved for making fundamental changes to our
constitutional structures; the amendment power was not intended to be used as a way to check
and balance Supreme Court decisions. Our founding fathers believed that the Supreme Court
was the weakest branch and that the legislative and executive branches would have ample
abilities to check a Supreme Court that exceeded its powers.
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Take for example the legislative check on the executive branch’s war making powers. If the
legislative branch disagrees with the executive’s conduct, it can always decide to use its power of
the purse to not appropriate monies that fund the executive branch’s conduct of a war. The idea
that the legislative branch would have to pass a constitutional amendment to oppose the
executive branch’s actions would strike anyone as ludicrous. Yet, if the Supreme Court were to
hand down a decision concerning the constitutionality of the executive branch’s war making
powers with which neither the executive nor the legislative branches agreed, we are supposed to
believe that the only recourse to checking this decision of the Supreme Court is to pass a
constitutional amendment. This view is clearly fatally flawed.
Drawing together 290 House members, sixty-seven senators, and thirty-seven states to pass a
constitutional amendment is a difficult and time-consuming task. It is little wonder that the
American people lose interest, shrug their shoulders, and give up on the fight if they believe they
have to do so in order to correct a decision of five fellow citizens serving on the Supreme Court.
However, a constitutional amendment is a fight that neither of the other two branches is required
to undertake in order to exercise checks and balances under the Constitution. The Constitution
does not require a constitutional amendment to correct a Supreme Court decision, nor has it been
the American tradition.
This NEWT 2012 campaign document serves as political notice to the public and to the
legislative and judicial branches that a Gingrich administration will reject the theory of judicial
supremacy and will reject passivity as a response to Supreme Court rulings that ignore executive
and legislative concerns and which seek to institute policy changes that more properly rest with
Congress. A Gingrich administration will use any appropriate executive branch powers, by itself
and acting in coordination with the legislative branch, to check and balance any Supreme Court
decision it believes to be fundamentally unconstitutional and to rein in any federal judge(s)
whose rulings exhibit a disregard for the Constitution. The historical and constitutional basis for
this position is outlined in this paper.
Newt Gingrich looks forward to having a national conversation over the next year about
reestablishing a Constitutional balance among the three branches, how best to bring the Courts
back under the Constitution, and formulating executive orders and legislative proposals that will
establish a constitutional framework for reining in lawless judges. This paper begins that
conversation.
The rejection of judicial supremacy and the reestablishment of a constitutional balance of power
among the legislative, executive, and judicial branches will be an intense and difficult
undertaking. It is unavoidable if we are going to retain American freedoms and American
identity.
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Introduction: The Constitutional Problem and the Constitutional Solution
If a man will stand up and assert, and repeat, and reassert, that two and two do not
make four, I know nothing in the power of argument that can stop him. -- Abraham Lincoln
Speech at Peoria, IL, October 16, 1854, in Nicolay, John and John Hay,
The Complete Works of Abraham Lincoln, Volume XII (Tandy Thomas
Co. 1905) (p. 58))
The Constitutional Problem
If the Supreme Court ruled that 2+2=5, would the executive and legislative branches have to
agree? Would we have to pass a Constitutional amendment to overrule the Court and reassert
that 2+2=4?
In 1958, all nine sitting justices of the Supreme Court signed on to a judicial opinion in the case
Cooper v. Aaron that asserted that the Supreme Court’s interpretation of the Constitution was
supreme in importance to the constitutional interpretation of the other two branches of
government, and that this judicial supremacy, all nine justices asserted, is a “permanent and
indispensable feature of our constitutional system.”
The Supreme Court assertions in Cooper v. Aaron are factually and historically false.
Nevertheless, following Cooper v. Aaron, the executive and legislative branches have largely
acted as if the Constitution empowered the Supreme Court with final decision making authority
about the meaning of the Constitution. The executive and legislative branches have further
behaved as if they have no choice but to give total deference to Supreme Court decisions, even if
the executive and/or legislative branch believes the Supreme Court has seriously erred in its
constitutional judgments.
The repeated failure of the executive and legislative branches to use their own constitutional
powers to check and balance what they believe to be unconstitutional judicial rulings has
effectively rendered the unelected justices of the Supreme Court with the final word on the
meaning of the Constitution.
The constitutional problem that arises from this set of circumstances is two-fold. First, our
constitutional framework of three branches exercising their unique powers to check and balance
the other two branches was designed to protect individual liberties while assuring government
would act with the consent of the governed.
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A judicial branch that is largely unaccountable and not subject to meaningful checks and
balances can -- and does -- routinely issue constitutional rulings that threaten individual liberties,
compromise national security, undermine American culture, and ignore the consent of the
governed. (More information about the negative outcomes that arise from judicial supremacy is
outlined below.)
Second, a judicial branch that is composed of judges not subject to meaningful checks and
balances leads to situations in which individual judges (acting by themselves or with other
judges) behave tyrannically and render constitutional judgments completely divorced from the
Constitution, American history, and our commitment to representative democracy. There is a
profound reason Lord Acton asserted "power tends to corrupt and absolute power corrupts
absolutely." Note that he drops “tends” when describing absolute power. Since 1958 the courts
have asserted the kind of unchecked power that is inherently corrupting.
The Constitutional Implications
In the fifty-three years since Cooper v. Aaron, the Supreme Court has become a permanent
constitutional convention in which the whims of five appointed judges have rewritten the
meaning of the Constitution and assigned to themselves the last word in the American political
process. Under this new all-powerful model of judicial supremacy, the Supreme Court -- and by
extension the trail-blazing Ninth Circuit Court and even some bold or arrogant district judges —
federal judges have been able to redefine the Constitution and the law unchecked by the other
two co-equal branches of government.
The long, difficult process of amending the Constitution with its requirements for two-thirds
majorities in Congress and for three-fourths of the states to concur was designed to make
changing the Constitution very difficult. When Newt Gingrich was Speaker of the House of
Representatives, he tried to get a balanced budget amendment and received the 290 votes
necessary in the House but fell two votes short in the Senate. Even if the amendment had
received the necessary votes in Congress, it would then have had to go to the states to secure
thirty-eight states’ ratification.
Yet all this effort to obtain constitutional change is currently matched by a 5 to 4 vote on the
Supreme Court. Note that the reality is even worse than a 5 to 4 decision. If the justices are
evenly divided, 4 to 4, then one justice (at the present time very often Justice Anthony Kennedy)
becomes a one person constitutional arbiter.
If five justices decide we cannot say “one nation under God,” cannot pray in schools or at
graduation, cannot display the Ten Commandments, and cannot criticize politicians with
campaign ads just before an election, then we lose those rights. If they decide that the First
Amendment protects virtual child pornography on the Internet against Congressional prohibition,
then that becomes the law of the land.
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This power grab by the Supreme Court is a modern phenomenon and a dramatic break from all
previous American history.
The Constitutional Solution
The constitutional solution is threefold.
First, the executive and legislative branches can explicitly and emphatically reject the theory of
judicial supremacy and undertake anew their obligation to assure themselves, separately and
independently, of the constitutionality of all laws and judicial decisions.
Second, when appropriate, the executive and legislative branches can use their constitutional
powers to take meaningful actions to check and balance any judgments rendered by the judicial
branch that they believe to be unconstitutional. An outline of some of these constitutional steps
is outlined elsewhere in this paper.
Third, the executive and legislative branches should employ an interpretive approach of
originalism in their assessment of the constitutionality of federal laws and judicial decisions.
A Gingrich administration will undertake each of these steps.
Background: The Historic Balance of Power Among the Three Branches
Historically there was a balance of power among the three branches of the federal government,
as the Constitution provided and the Federalist Papers explicitly described.
Alexander Hamilton expected the legislative branch would define the reach of the judicial
branch. He argued in Federalist 80 that when the judiciary had to be modified, “the national
legislature will have ample authority to make such exceptions, and to prescribe such regulations
as will be calculated to obviate or remove these inconveniences.”
Hamilton was also confident the judicial branch could never seriously encroach upon the powers
of the legislative branch. Hamilton said it was because the judicial branch had a “total incapacity
to support its usurpations by force.” In Federalist 78, he called the judiciary ““beyond
comparison the weakest of the three departments of power” and the one that could “never attack
with success either of the other two”.
Hamilton further noted in Federalist 81, “There can never be danger that the judges, by a series
of deliberate usurpations on the authority of the legislature, would hazard the united resentment
of the body entrusted with it, while this body was possessed of the means of punishing their
presumption by degrading them from their stations.”
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Why was Hamilton so confident of the comparative weakness of the judicial branch? He tell us
that this “inference is greatly fortified by the consideration of the important constitutional check
which the power of instituting impeachments in one part of the legislative body, and of
determining upon them in the other, would give to that body upon the members of the judicial
department. This is alone a complete security.”
Where Hamilton had relied on the legislature’s power to check and balance the judiciary, James
Madison argued for the theory of a division of power into three branches based on Montesquieu:
“Were the power of judging joined with the legislative, the life and liberty of the subject would
be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the
executive power, the judge might behave with all the violence of an oppressor.”
Madison famously lays out the theory of separation of powers in Federalist 51:
To what expedient then shall we finally resort for maintaining in practice the necessary
partition of power among the several departments, as laid down in the constitution? The
only answer that can be given is, that as all these exterior provisions are found to be
inadequate, the defect must be supplied, by so contriving the interior structure of the
government, as that its several constituent parts may, by their mutual relations, be the
means of keeping each other in their proper places.
Madison argues in Federalist 48 that there must be some type of “practical security for each
[branch], against the invasion of the others”:
...that the powers properly belonging to one of the departments ought not to be directly
and completely administered by either of the other departments. It is equally evident,
that none of them ought to possess, directly or indirectly, an overruling influence over
the others, in the administration of their respective powers. It will not be denied, that
power is of an encroaching nature, and that it ought to be effectually restrained from
passing the limits assigned to it. After discriminating, therefore, in theory, the several
classes of power, as they may in their nature be legislative, executive, or judiciary, the
next and most difficult task is to provide some practical security for each, against the
invasion of the others.
Madison feared that the legislative branch would be the primary source of encroaching on the
power of the other branches. He was wrong. To use Madison’s words, the judiciary has in fact
become the invading branch against which the other branches need to exercise some practical
security.
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Judicial Supremacy and The Power Grab of the Lawyer Class: The Oligarchy
Jefferson Feared
The lawyer class began a grand-scale power grab with the Warren Court in the 1950s. Larry
Kramer, dean of Stanford Law School, captures the sudden dramatic shift in the Warren Court’s
interpretation of judicial supremacy:
In 1958...all nine Justices signed an extraordinary opinion in Cooper v. Aaron insisting that
Marbury [Marbury v. Madison] had “declared the basic principle that the federal judiciary
is supreme in the exposition of the law of the Constitution” and that this idea “has ever
since been respected by this Court and the Country as a permanent and indispensable
feature of our constitutional system.” This was, of course, just bluster and puff. As we have
seen, Marbury said no such thing, and judicial supremacy was not cheerfully embraced in
the years after Marbury was decided. The Justices in Cooper were not reporting a fact so
much as trying to manufacture one...the declaration of judicial interpretive supremacy
evoked considerable skepticism at the time. But here is the striking thing: after Cooper v.
Aaron, the idea of judicial supremacy seemed gradually, at long last, to find wide public
acceptance. (Kramer, Larry, The People Themselves, Oxford University Press: 2004, 221)
Having declared the Supreme Court superior to the legislative and executive branches, the
members of the Supreme Court now live in a world in which they have no peers. Because it is so
important we repeat the warning about absolute power Lord Acton made in the mid-nineteenth
century that “power tends to corrupt and absolute power corrupts absolutely.” Note that he drops
the “tends” in describing the impact of absolute power.
Yet even the occasional Supreme Court justice has recognized that the court has engaged in the
dangerous pattern of judges making law (not interpreting it) and usurping the power of the other
branches.
In an 1893 dissent, Justice Stephen Johnson Field, wrote of the disturbing nature of judges
creating new law whole cloth and imposing it on the people of the states:
Nothing can be more disturbing and irritating to the states than an attempted enforcement
upon its people of a supposed unwritten law of the United States, under the designation of
the general law of the country, to which they have never assented, and which has no
existence except in the brain of the federal judges in their conceptions of what the law of
the states should be on the subjects considered. (Baltimore & O.R. Co. v. Baugh, 149 U.S. 368
(1893) (Field, dissenting))
Writing in 1973, Justice Lewis Powell pointed out that “the separation of powers was designed to
provide, not for judicial supremacy, but for checks and balances.” (National R.R. Passenger Corp. V.
National Ass’n of R.R. Passengers, 414 U.S. 453, 472 (1974) (Powell, dissenting)
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On the current Court, Chief Justice John Roberts and Justice Antonin Scalia have been among
the most vocal opponents of judicial supremacy in their opinions. For a more comprehensive list
of warnings against judicial supremacy by jurists, elected officials, and other commentators,
please see Appendix A.
Judicial Supremacy’s Assault on National Security, Religious Liberty, and
National Sovereignty
The Supreme Court’s assertion of judicial supremacy – and the passive acquiescence of the
executive and legislative branches to such a doctrine – entails real dangers to our national
security and our individual liberties. Below is an accounting of three areas in which these
dangers arise.
Putting Lives at Risk in the Court’s Interference with National Security Powers of the
Executive and Legislative Branches
In 2008, the Supreme Court ruled in Boumediene v. Bush that alien combatants have the
constitutional right of habeas corpus and can thus access American courts to challenge their
wartime detention. By making this decision based on an interpretation of the Constitution instead
of Congressional statute, the Supreme Court has asserted that it has the ultimate power, not the
Congress, of determining what rights our enemies have in wartime.
Writing the opinion for the majority, Justice Anthony Kennedy underscored that it will be Court
writing the law on wartime detention going forward, not Congress, when he went so far as to
order that all “questions regarding the legality of the detention [of combatants] are to be resolved
in the first instance by the District Court”.
In dissent, Chief Justice Roberts observed that "
- ne cannot help but think, after surveying the
modest practical results of the majority’s ambitious opinion, that this decision is not really about
the detainees at all, but about control of federal policy regarding enemy combatants." ((553 U.S.
723) (2008) (Roberts, dissenting))
Roberts went on to explain exactly the fundamental constitutional error of the Court’s decision:
"All that today’s opinion has done is shift responsibility for those sensitive foreign policy and
national security decisions from the elected branches to the Federal Judiciary."
In his dissent, Justice Scalia described the stakes:
Contrary to my usual practice, however, I think it appropriate to begin with a description
of the disastrous consequences of what the Court has done today….The game of bait-and
switch that today’s opinion plays upon the Nation’s Commander in Chief will make the
war harder on us. It will almost certainly cause more Americans to be killed. That
consequence would be tolerable if necessary to preserve a time-honored legal principle
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vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a
principle that produces the decision today. ((553 U.S. 723) (2008) (Scalia, dissenting))
The willingness of the Executive and Legislative branches to check and balance erroneous
decisions of the judicial branch is vital to avoiding the dangers to our national security that arise
when the Supreme Court exceeds its judicial powers in decisions like Boumediene that bear upon
the war making powers of the executive and legislative branches.
An Assault on Religious Liberty
The Warren Court was determined to break with previous Supreme Courts and the traditions of
American history to define a much more radical America. Its prime target was religion. Its
ultimate power was judicial supremacy.
Justice Hugo Black had laid the groundwork in Everson v. Board of Education (1947). Justice
Black used a narrow case: Could New Jersey fund transportation for children to get to Catholic
schools as well as public schools? But in doing so, he helped to create the sweeping principle
that would turn the Establishment Clause of the First Amendment into a bulldozer for creating a
secular America. He wrote:
The “establishment of religion” clause of the First Amendment means at least this: Neither a
state nor the Federal Government can set up a church. Neither can pass laws which aid one
religion, aid all religions, or prefer one religion over another. Neither can force nor
influence a person to go to or to remain away from church against his will or force him to
profess a belief or disbelief in any religion. No person can be punished for entertaining or
professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in
any amount, large or small, can be levied to support any religious activities or institutions,
whatever they may be called, or whatever form they may adopt to teach or practice religion.
Neither a state nor the Federal Government can, openly or secretly, participate in the affairs
of any religious organizations or groups and vice versa. In the words of Jefferson, the clause
against establishment of religion by law was intended to erect “a wall of separation between
Church and State.” (330 U.S. 1 (1947) (Black, for the majority))
This is a fundamental misreading of Jefferson—who did not believe there should be a wall
between God and state but only between an established religion and the government.
As Michael Novak, author of the wonderful book On Two Wings, has observed:!
From 1776 to 1948, the dominant metaphor for church-state relations was that public
officials must act as “nursing fathers” to the religious and moral habits of the people (the
phrase in quotes comes from Isaiah). Jefferson’s phrase “wall of separation” from a letter of
1802 lay totally unnoticed until it was cited by the Supreme Court in 1879 in Reynolds v.
United States in a mistaken transcription of Jefferson’s original letter; the focus in 1879 was
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not on “separation” but on the term “legislative powers” (which the transcriber had written
instead of Jefferson’s original clearly formed handwriting “legitimate power”). The
metaphor otherwise lay unused and virtually unknown until Justice Black drew it from
obscurity in 1947 (still using the erroneous translation.) (Novak, Michael. On Two Wings. San
Francisco: Encounter Books, 2003. 70.)
James Hutson also provides interesting details on this often overlooked piece of history:
[That Jefferson] supported throughout his life the principle of government hospitality to
religious activities (provided always that it be voluntary and offered on an equal
opportunity basis) indicates that he used the wall of separation metaphor in a restrictive
sense....government, although it could not take coercive initiatives in the religious sphere,
might serve as a passive, impartial venue for voluntary religious activities. (Huston, James H.,
“Thomas Jefferson’s Letter to the Danbury Baptists: A Controversy Rejoined,” William and Mary
Quarterly; Volume LVI, October 1999, 789)
Justice Black had asserted a ruthlessly secular, anti-religious definition of the Establishment
Clause and it became the benchmark for future decisions, unchallenged by a cowed legislative
and executive branch. But as the late Chief Justice Rehnquist noted in his dissent in Wallace v.
Jaffree, the “wall of separation between church and State’ is a metaphor based on bad history, a
metaphor which has proved useless as a guide to judging. It should be frankly and explicitly
abandoned.” (772 U.S. 38, 106 (1985) (Rehnquist, dissenting)).
The next big break with tradition came in 1962 when the Supreme Court in Engel v. Vitale struck
down a New York State law that required school officials to open the day with prayer. Justice
Potter Stewart’s dissent cited examples of the “deeply entrenched and highly cherished spiritual
traditions of our nation.” As Justice Stewart noted, we “are a religious people whose institutions
presuppose a Supreme Being.”
Presciently, Justice Douglas concurred in the majority but noted its ominous implications:
What New York does on the opening of its public schools is what we do when we open
court. Our Crier has from the beginning announced the convening of the Court. God Save
the United States and this Honorable Court. That utterance is a supplication, a prayer in
which we, the judges, are free to join, but which we need not recite any more than the
students need to recite the New York prayer. What New York does on the opening of its
public schools is what each House of Congress does at the opening of each day’s business.
(370 U.S. 421, 439 (1962) (Douglas, concurring))
Most people ignored Douglas’s observation at the time but we now know they should have taken
it very seriously. The line was being crossed from a pro-religious nation to an anti-religious
nation and with each judgment the momentum of secularism accelerated.
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In the 1963 decision Abington v. Schempp, the Supreme Court ruled that Bible reading in schools
was unconstitutional. This case is widely regarded as the decisive break in which the Court
began to use the Establishment Clause of the First Amendment to drive religion out of public
life. Even those who sought to retain some reference to America’s religious origin and the
religious basis of the rights of Americans began doing so in the context of an acceptance of a
sanitized, secular, non-religious public life.
The theme that God can remain in public life as long as He is not taken seriously was established
in this case. Justice Arthur Goldberg noted that no practice is prohibited if it does not “have
meaningful and practical impact.” He went on to assert that acts could remain constitutional as
long as they remained a “mere shadow” of religious reference and were not a “real threat.” Note
that God had gone from the source of salvation (personal and national), inspiration, and wisdom
to being a “threat” that could be tolerated only if the threat was tiny and timid.
In the same case Justice William Brennan noted that patriotic exercises such as the Pledge of
Allegiance were fine because “they had lost any religious significance through repetitive usage.”
In other words, God could survive in public only as long as no one thought the reference actually
meant God. Here is Justice Brennan’s reasoning:
This general principle might also serve to insulate the various patriotic exercises and
activities used in the public schools and elsewhere which, whatever may have been their
origins, no longer have a religious purpose or meaning. The reference to divinity in the
revised pledge of allegiance, for example, may merely recognize the historical fact that our
Nation was believed to have been founded “under God.” Thus reciting the pledge may be no
more of a religious exercise than the reading aloud of Lincoln’s Gettysburg Address, which
contains an allusion to the same historical fact. (374 U.S. 203, 303) (1963) (Brennan, concurring)
Justice Brennan made clear the break with the Founding Fathers and with American history: “A
too literal quest for the advice of the Founding Fathers upon the issues of these cases seems to
me futile and misdirected.”
And still no meaningful response from the executive and legislative branches.
Justice Potter Stewart filed the only dissent and observed,
If religious exercises are held to be an impermissible activity in schools, religion is placed
in an artificial and state-created disadvantage....And a refusal to permit religious exercises
thus is seen, not as the realization of state neutrality, but rather as the establishment of a
religion of secularism, or at least, as governmental support of the beliefs of those who think
that religious exercises should be conducted only in private. (374 U.S. 203, 313) (1963) (Stewart,
dissenting)
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Federal judges will continue to erode religious and other liberties in its decision making until the
political branches commit themselves to correct the decisions of federal judges.
A good place to start correcting federal judges is in Texas. This past June, a federal district court
judge in West Texas issued an extraordinary judicial order that threatened local school officials
with going to jail if they failed to censor the content of a student’s speech at a high school
graduation ceremony. Such oppressive and tyrannical behavior from a sitting federal judge is
not constitutional and has no place in America. Congress would be well within its power to
impeach and remove this federal judge from office, or failing that, work with the President to
abolish his judgeship. Appendix B has more information about this case.
Diminished American Sovereignty Owing to the Growing Practice of Using Foreign Opinion
as the Basis for U.S. Constitutional Interpretation
There is a new and growing pattern among the Left-liberal establishment to view foreign opinion
and international organizations as more reliable and more legitimate than American institutions.
In July 2004, about a dozen House members wrote a letter to United Nations Secretary General
Kofi Annan asking him to certify the 2004 presidential election. When an amendment was
offered to block any federal official involving the U.N. in the American elections, the Democrats
voted 160 to 33 in favor of allowing the U.N. to be called into an American election. The
Republicans voted 210 to 0 against allowing the United Nations to interfere.
The fact that a five-to-one margin of Democrats could vote in favor of United Nations
involvement in an American presidential election is an astonishing indicator of the degree to
which international institutions have acquired greater legitimacy among the Left-liberal
establishment.
This same trend toward the reliance of foreign opinion and foreign institutions is also developing
in the Supreme Court.
Former Justice O’Connor, in 1997, argued, “Other legal systems continue to innovate, to
experiment, and to find new solutions to the new legal problems that arise each day, from which
we can learn and benefit.” Later, in 2002, she further asserted: “There is much to learn
from...distinguished jurists [in other places] who have given thought to the same difficult issues
we face here.”
Justice Ruth Bader Ginsberg, in 2003, stated:
- ur “island” or “lone ranger” mentality is beginning to change. Our Justices...are
becoming more open to comparative and international law perspectives. Last term may
prove a milestone in that regard. New York Times reporter Linda Greenhouse observed on
July 1 in her annual roundup of the Court’s decisions: The Court has displayed a [steadily
growing] attentiveness to legal developments in the rest of the world and to the Court’s role
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in keeping the United States in step with them. (Ginsburg, Ruth Bader. “Looking Beyond Our
Borders: The Value of a Comparative Perspective in Constitutional Adjucation.” Sherman J. Bellwood
Lecture delivered on September 18, 2003 at the University of Idaho)
In other words, Justice Ginsberg is promising that as elites in other countries impose elite values
on their people, the Supreme Court has the power and the duty to translate their new Left-liberal
values on the American people. No more worrying about the legislative and executive branches.
No more messy process of debating with the American people. No more old-fashioned defense
of American traditions and American constitutional precedent.
Justice Ginsberg quotes approvingly Justice Kennedy’s opinion making same-sex relationships a
constitutional right in part out of “respect for the Opinions of [Human]kind.” The Court
emphasized: “The right the petitioners seek in this case has been accepted as an integral part of
human freedom in many other countries....In support, the Court cited the leading 1981 European
Court of Human Rights decision...and the follow-on European Human Rights Court decisions.”
And most recently in February of 2006, Justice Ginsburg gave a speech in South Africa, on “The
Value of a Comparative Perspective in Constitutional Adjudication” in which she was quite
explicit about her view of using foreign law:
The notion that it is improper to look beyond the borders of the United States in grappling
with hard questions….is in line with the view of the U.S. Constitution as a document
essentially frozen in time as of the date of its ratification. I am not a partisan of that view.
U.S. jurists honor the Framers' intent "to create a more perfect Union," I believe, if they
read the Constitution as belonging to a global 21st century, not as fixed forever by 18th
century understandings. (Ginsburg, Ruth Bader. “A decent Respect to the Opinions of
[Human]kind": The Value of a Comparative Perspective in Constitutional Adjudication,
Constitutional Court of South Africa, February 7, 2006)
For Justice Ginsburg, the U.S. Constitution does not belong to the United States but to “a global
21st Century”, whatever that means. Later in her speech, Justice Ginsburg gave an idea of her
meaning when she cited approvingly the judgment of the Court in Roper v. Simmons. In this
case, a Missouri jury of his peers judged that 17 year-old Christopher Simmons acted as an adult,
with premeditation, when he broke into a woman’s home, covered her head in a towel, wrapped
her up in duct tape, bound her hands and legs with electrical wire, and then dumped her over the
side of a bridge and left her to drown to death. For his actions, the Missouri jury gave Simmons
the death penalty.
The Supreme Court said no and that henceforth no Missouri jury would have the right, and no
jury in any U.S. state shall ever again have the right, to determine whether justice calls for the
death penalty to apply in cases like this. The Court decided that in the global 21st century it
would henceforth be a violation of the Constitution for Americans to make such judgments, even
though Americans had exercised this right for the previous two hundred plus years.
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What changed? The Court in Roper argued that the Constitution’s 8th Amendment prohibition
on cruel and unusual punishment is subject to interpretation in light of the “the evolving
standards of decency that mark the progress of a maturing society”. Justice Ginsburg called the
decision in Roper as “perhaps the fullest expressions to date on the propriety and utility of
looking to ‘the opinions of [human]kind.’” She went on to note that the Court “declared it fitting
to acknowledge ‘the overwhelming weight of international opinion against the juvenile death
penalty.’” She cited Justice Kennedy who wrote that the opinion of the world community
provided "respected and significant confirmation of our own conclusions." Kennedy also wrote
that "It does not lessen our fidelity to the Constitution [to recognize] the express affirmation of
certain fundamental rights by other nations and peoples."
Justice Scalia dissents strongly from this view, writing that Constitutional entitlements cannot
come from foreign governments: “Much less do they spring into existence, as the Court seems to
believe, because foreign nations decriminalize conduct.” Scalia asserts that “this Court...should
not impose foreign moods, fads, or fashions on Americans.” In his dissent in Roper, Justice
Scalia blasted the majority’s reliance on foreign opinion, rejecting that “the meaning of our
Eighth Amendment, any more than the meaning of other provisions of our Constitution, should
be determined by the subjective views of five Members of this Court and like-minded
foreigners.” (543 U.S. 551 (2005) (Scalia, dissenting))
In a 2002 case, Atkins v. Virginia, Chief Justice Rehnquist also dissented: “I fail to see, however,
how the views of other countries regarding the punishment of their citizens provide any support
for the Court’s ultimate determination...we have...explicitly rejected the idea that the sentencing
practices of other countries could serve to establish the first Eighth Amendment prerequisite, that
[a] practice is accepted among our people.” (536 U.S. 304, 325 (2002) (Rehnquist, dissenting))
Despite these dissents, the majority on the Court is continuing to look outside America for
guidance in interpreting American law.
In her own actions, Justice Ginsberg noted that in the Michigan affirmative action cases, “I
looked to two United Nations Conventions: the 1965 International Convention on the
Elimination of all Forms of Racial Discrimination, which the United States has ratified; and the
1979 Convention on the Elimination of all Forms of Discrimination Against Women, which,
sadly, the United States has not yet ratified....The Court’s decision in the Law School case, I
observed, accords with the international understanding of the office of affirmative action.” Note
that Justice Ginsberg is proudly stating her use of a United Nations Convention that the United
States Senate has not yet ratified.
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Thus a mechanism has been locked into place by which five appointed lawyers can redefine the
meaning of the U.S. Constitution and the policies implemented under that Constitution either by
inventing rationales out of thin air or by citing whatever norms contained in foreign precedent
they think helpful to buttress their own claims. This is not a judiciary in the classic sense, but a
proto-dictatorship of the elite pretending to still function as a Supreme Court.
Rejecting Judicial Supremacy: History of Executive and Legislative Actions
to Check and Balance the Judicial Branch
At the heart of the current grasp for power is the issue of whether the judiciary is truly the
supreme interpreter of the Constitution.
Jefferson was quite clear about the absurdity of claims to judicial supremacy: “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.” (Letter from
Thomas Jefferson to William C. Jarvis, September 28, 1820, in the Jeffersonian Cyclopedia (Funk and
Wagnalls 1900) (P. 845) Jefferson warned that “the germ of dissolution of our federal government
is in the constitution of the federal judiciary, an irresponsible body...working like gravity by
night and 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.” (Letter from Thomas Jefferson to C. Hammond, 1820, in the
Jeffersonian Cyclopedia (Funk and Wagnalls 1900) (P. 131))
Jefferson further wrote that “the great object of my fear is the federal judiciary. That body, like
gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step,
and holding what it gains, is engulfing insidiously the special governments into the jaws of that
which feeds them.” (Letter from Thomas Jefferson to Spencer Roane, 1821, in the Jeffersonian Cyclopedia
(Funk and Wagnalls 1900) (P. 842)) The Jeffersonians had asserted unequivocally that the legislative
and executive branches were coequals of the judiciary branch and that when two of the three
branches were united, they could in effect trump the third branch.
President Thomas Jefferson knew exactly what he was describing. He was the first American
president to confront a hostile judiciary. The Federalists had used the federal judiciary to enforce
the Alien and Sedition Acts of 1798 to imprison Jeffersonian activists. After the Federalists lost
the election of 1800, they had from November until March 1801 (back then inauguration did not
occur until March) to try to slow down the emerging Jeffersonian majority. The Federalists more
than doubled the number of federal circuit judges, picked the judges, and had their departing
Senate majority approve the new Federalist judges. Thus the Federalists prepared to give up
power confident they had boxed in the new majority.
The Jeffersonians reacted to this post-election court packing with fury. They called the new
appropriators Midnight Judges. Jefferson and the new Congress abolished over half the federal
judgeships and reorganized the federal judiciary with their repeal of the Judiciary Act of 1801
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and their passage of the Judiciary Act of 1802. In the election of 1802 the Jeffersonians increased
their majority over the Federalists in a campaign that further strengthened the legislative and
executive branches against the judicial branch.
The Supreme Court ruled in Stuart v. Laird that this action was within Congress’s constitutional
powers under Article III.
Jefferson was not the last President to confront a judicial branch that exceeded its authority.
President Andrew Jackson similarly interposed the executive branch against the Supreme Court
during the debate over removing the charter of the Bank of the United States. To those who
asserted that the Bank was constitutional because of Supreme Court precedent, Jackson retorted:
“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” (President Jackson’s Veto Message Regarding the Bank of the United States, July
10, 1832)
Abraham Lincoln reentered politics largely in response to the Supreme Court’s Dred Scott
decision enforcing slavery throughout the United States. Lincoln saw the Supreme Court
decision as an assault on the freedom of all Americans. Lincoln’s entire presidential campaign
was driven by his opposition to the extension of slavery embodied in the Supreme Court’s
decision. In many ways it could be argued that the Supreme Court created the legal setting in
which the people of the United States had to settle what their Constitution meant and that settling
this argument required a civil war.
In his inaugural address, Lincoln laid out his approach to dealing with a Supreme Court that had
clearly encroached into matters reserved to the executive and legislative branches:
I do not forget the position assumed by some that constitutional questions are to be decided
by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the
parties to a suit as to the object of that suit, while they are also entitled to very high respect
and consideration in all parallel cases by other departments of the government. And while it is
obviously possible that such decision may be erroneous in any given case, still the evil effect
following it, being limited to that particular case, with the chance that it may be overruled and
never become a precedent for other cases, can better be borne than could the evils of a
different practice. 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 in ordinary litigation between
parties in personal actions, the people will have ceased to be their own rulers, having to that
extent practically resigned their government into the hands of that eminent tribunal. (Lincoln’s
First Inaugural Address, March 4, 1861)
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For Lincoln, it was not just slavery at stake but American self-government, for if the Court
became the last word in American politics, then it would mean a surrender of self-government.
Note that Lincoln was not reckless in asserting a constitutional basis for the executive branch to
balance the Supreme Court. He clearly defined which type of Supreme Court decisions did not
require absolute adherence by the whole population once they were handed down. These
included decisions upon “vital questions” that “affected the whole people” that were to be
“irrevocably fixed” in the litigation before the parties “the instant they are made”. Lincoln
readily acknowledged that all decisions by the Court would be binding upon the parties to the
litigation but that did not mean that all decisions had to become a politically binding rule for the
rest of the country.
Lincoln had also been careful in his earlier public statements about Dred Scott. In a speech in
1857, Lincoln “took the position that Dred Scott could be challenged because it had not been
unanimous, because it was consistent with neither ‘legal public expectations’ nor past political
practices, and because it was the first time the Court had addressed the issue. Were things
otherwise, he mused, ‘it then might be, perhaps would be, factious, nay, even revolutionary, not
to acquiesce in it as a precedent.’” (Larry Kramer, The Supreme Court 2000 Term: Foreword: We the
Court, 115 Harv. L. Rev. 4 (2001))
In office, Lincoln followed through on his refusal to accept judicial supremacy by refusing to
treat Dred Scott as legally binding on the executive branch. For example, his administration
issued U.S. passports to free blacks and treated them as full citizens notwithstanding the Dred
Scott Court’s refusal to do so. Lincoln also signed legislation that placed restrictions on slavery
in the federal territories, a position directly at odds with Dred Scott.
None of Lincoln’s actions on behalf of free blacks would have been possible had he accepted
judicial supremacy. Judicial supremacy would have entailed the continued outrage against the
dignity of black Americans.
For his part, when Franklin Delano Roosevelt found the Supreme Court consistently throwing
out New Deal legislation, he attempted to pack the Court with additional Supreme Court justices.
While Roosevelt ultimately lost the battle in Congress, the assault had so intimidated the
conservative justices that they shifted their opinions dramatically to accommodate the views of
the vast majority of the American people as expressed in their votes for president and Congress.
Roosevelt lost the battle but won the war.
During one of his famous Fireside Chats in March 1937, Roosevelt laid out his vision of a court
with dramatically scaled down powers:
I want - as all Americans want - an independent judiciary as proposed by the framers of the
Constitution. That means a Supreme Court that will enforce the Constitution as written, that
will refuse to amend the Constitution by the arbitrary exercise of judicial power - in other
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words by judicial say-so. It does not mean a judiciary so independent that it can deny the
existence of facts which are universally recognized…
During the past half-century the balance of power between the three great branches of the
federal government has been tipped out of balance by the courts in direct contradiction of the
high purposes of the framers of the Constitution. It is my purpose to restore that balance. You
who know me will accept my solemn assurance that in a world in which democracy is under
attack, I seek to make American democracy succeed. You and I will do our part. (Roosevelt’s
Fireside Chat on the Reorganization of the Judiciary, March 9, 1937, available at Franklin Delano
Roosevelt Presidential Library,
http://docs.fdrlibrary.marist.edu/030937.html)
Thus there is significant precedent in American history of the legislative and executive branches
acting to correct or otherwise restrict the reach of judicial decisions. These actions have also
shown upon occasion that they can strongly influence the judicial branch into changing its views
when they are out of touch with the values of the vast majority of Americans.
What then can be done today to bring the Supreme Court and the other federal courts back under
the Constitution and respecting the rule of law?
Reestablishing a Balance of Power Today: Reasserting Executive and
Legislative Branch Powers to Check and Balance the Judiciary
There is a sense of defeatism among the American people when it comes to the federal courts.
People get angry but then give up because the elite media and elite lawyers insist on judicial
supremacy and assert that the only way to check and balance the Courts is to pass a
constitutional amendment.
But as this paper has outlined, the Constitution does not require a constitutional amendment to
check and balance the judiciary. The President and each member of Congress takes an oath to
defend the Constitution; if they believe that the judicial branch is acting contrary to the
Constitution, then they have an obligation to use their Constitutional powers to check and
balance the judicial branch.
Below are several constitutional steps that the legislative and executive branches, along with the
people, can take to check and balance the judiciary and reestablish a constitutional balance.
These powers should be used sparingly and only in proportion to the extent that the judicial
branch is exceeding its powers. Some people will read this list and conclude these strategies are
too bold. But if we don’t act boldly, the judicial branch will continue to curtail our liberties and
force their arbitrary beliefs on us. We must either be willing to check the judiciary, or live in a
radically changed America. We choose to keep America and check the ways of the judiciary.
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Electing the right Senators
The American people can insist on electing senators who promise to confirm judges who enforce the
Constitution as written according to the original understanding of the people who enacted the Constitution.
But nominating and confirming judges who are unlikely to legislate from the bench is not enough.
Nominating and Confirming the right Judges
The President and Senate should work together to insist that only those individuals who are
committed to an originalist understanding of the Constitution are nominated and confirmed as
Supreme Court justices and lower federal court judges. Judges with an originalist understanding
will subordinate themselves to the meaning of the Constitution as it was intended by the framers,
and not substitute their own judgments about its meaning. The inherent judicial self-restraint that
comes from an originalist approach to the Constitution offers the best long term assurance that
federal judges will not exceed their powers.
Setting Limitations on Federal Court Jurisdiction
Article III, section 2, clause 2 provides that “the supreme Court shall have appellate Jurisdiction,
both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall
make”. This power, along with Congressional power to create and abolish all lower federal
courts, provide for a powerful check on the judiciary. Acting together, the legislative and
executive branches can therefore limit the jurisdiction of the federal courts through ordinary
legislation. This legislation would remove the power of the courts to hear certain types of cases
that the executive and legislative branches believe that the federal judiciary has simply gotten
wrong in the past.
How might this approach play out in practice? For example, Americans can ask that Congress
pass a law insisting on the centrality of “our Creator” in defining American rights, the legitimacy
of appeals to God “in public places,” and the absolute rejection of judicial supremacy as a
violation of the Constitution’s balance of powers. If the Supreme Court ruled that such a law was
unconstitutional, the legislative and executive branches could take corrective action. Congress
and the president could pass the law a second time but include a provision that affirms the
legislative and executive branches’ constitutional role to define the Court’s jurisdiction. This
law could also include a specific provision that barred the lower federal courts from reviewing it.
If this does not convince the judges to stand down, the legislative and executive branches have
additional options. They could explicitly provide by statute that any federal judge that refused to
adhere to the legislative limitations on jurisdiction would be subject to impeachment and removal
from office. While not necessary, explicit notice to the judicial branch in the form of legislation that
ignoring limitations on jurisdiction can lead to their impeachment may temper judicial behavior. It
also may provide additional political support for the removal of judges in a future impeachment
proceeding on the grounds of a judge ignoring statutory limitations on its jurisdiction.
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The Founding Fathers believed that in a struggle between the popularly elected branches and the
appointed branch, the judges would inevitably lose.
Impeachment Power
Judges who issue unconstitutional decisions or who otherwise ignore the Constitution and the
legitimate powers of the two other co-equal branches of the federal government can be subjected
to impeachment. For example, any federal judge who joins in an o
