March 4, 2005

Judicial Supremacists and the Despotic Branch

“[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 Constitution…is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.” –Thomas Jefferson

Our Constitution is under frontal assault from the Leftists in both the legislative and judicial branches of the central government, and the future of Essential Liberty and the Rule of Law hang in the balance. Jurist have mounted this assault in abject violation of their sacred oaths to “support and defend” our authentic Constitution, and replace it with the so-called “living constitution.”

The Federalist Papers constitute the definitive explication of our national Constitution. In Federalist No. 81 Alexander Hamilton writes, “[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.” On the subject of federalism, he wrote in No. 81 “…the plan of the [Constitutional] convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”

In Federalist No. 45, the author of our Constitution, James Madison, notes: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. … The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.”

Madison’s outline notwithstanding, the scope of activities of the legislative and judicial branches today hardly resemble the limits of our Constitution – yet nothing in its amendments allows that scope.

Concerned for the potential tyranny of the judiciary, Thomas Jefferson warned: “The 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 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. … It has long, however, been my opinion, and I have never shrunk from its expression…that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; working like gravity by night and by 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.”

Jefferson continued: “At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance.”

Some 200 years later, they are as dangerous as ever. Notes Justice Scalia, “As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.”

The time is long overdue for Congress to make amends for failing to check the unbalanced and growing powers being arrogated by these judicial tyrants – and altering the Senate rules is a good start. But our current circumstances are worse than nearly all analysts are admitting. Not only should these moderate-conservative Bush judicial nominees be seated, but those judges who are in violation of their oaths of office should be unseated by impeachment.

However, as Jefferson noted long ago, “We have…[required] a vote of two-thirds in one of the Houses for removing a judge; a vote so impossible where any defense is made before men of ordinary prejudices and passions, that our judges are effectually independent of the nation. … For experience has already shown that the impeachment it has provided is not even a scare-crow.”

And a final memo to activist judges and their congressional puppeteers: American military personnel have been wounded and killed in great numbers upholding their oath to “Support and defend the Constitution of the United States…,” not your interpretation of the Constitution. You have sworn to do the same.

Perhaps it is time to remove judges who do not “faithfully discharge the duties of the office” upon which they have entered, despots who inexpert it, in the inimitable words of the august Sen. Sam Ervin, “to mean what it would have said if he, instead of the Founding Fathers, had written it.”.

Follow Mark Alexander on Twitter

Who We Are

The Patriot Post is a highly acclaimed weekday digest of news analysis, policy and opinion written from the heartland — as opposed to the MSM’s ubiquitous Beltway echo chambers — for grassroots leaders nationwide. More

What We Offer

On the Web

We provide solid conservative perspective on the most important issues, including analysis, opinion columns, headline summaries, memes, cartoons and much more.

Via Email

Choose our full-length Digest or our quick-reading Snapshot for a summary of important news. We also offer Cartoons & Memes on Monday and Alexander’s column on Wednesday.

Our Mission

The Patriot Post is steadfast in our mission to extend the endowment of Liberty to the next generation by advocating for individual rights and responsibilities, supporting the restoration of constitutional limits on government and the judiciary, and promoting free enterprise, national defense and traditional American values. We are a rock-solid conservative touchstone for the expanding ranks of grassroots Americans Patriots from all walks of life. Our mission and operation budgets are not financed by any political or special interest groups, and to protect our editorial integrity, we accept no advertising. We are sustained solely by you. Please support The Patriot Fund today!


The Patriot Post and Patriot Foundation Trust, in keeping with our Military Mission of Service to our uniformed service members and veterans, are proud to support and promote the National Medal of Honor Heritage Center, the Congressional Medal of Honor Society, both the Honoring the Sacrifice and Warrior Freedom Service Dogs aiding wounded veterans, the National Veterans Entrepreneurship Program, the Folds of Honor outreach, and Officer Christian Fellowship, the Air University Foundation, and Naval War College Foundation, and the Naval Aviation Museum Foundation. "Greater love has no one than this, to lay down one's life for his friends." (John 15:13)

★ PUBLIUS ★

“Our cause is noble; it is the cause of mankind!” —George Washington

Please join us in prayer for our nation — that righteous leaders would rise and prevail and we would be united as Americans. Pray also for the protection of our Military Patriots, Veterans, First Responders, and their families. Please lift up your Patriot team and our mission to support and defend our Republic's Founding Principle of Liberty, that the fires of freedom would be ignited in the hearts and minds of our countrymen.

The Patriot Post is protected speech, as enumerated in the First Amendment and enforced by the Second Amendment of the Constitution of the United States of America, in accordance with the endowed and unalienable Rights of All Mankind.

Copyright © 2024 The Patriot Post. All Rights Reserved.

The Patriot Post does not support Internet Explorer. We recommend installing the latest version of Microsoft Edge, Mozilla Firefox, or Google Chrome.