Alexander's Column

Judicial Supremacists and the Despotic Branch

By Mark Alexander · Mar. 4, 2005

“[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.”.


richard gage said:

Where is the impeachment of HOB not yet used?????

Thursday, March 4, 2010 at 11:48 PM

Howard Reed, Durhamville, NY said:

Mr. Alexander, Your work is valuable in a time of historical ignorance. I applaud you and people like Rush Limbaugh, Glenn Beck and other conservative champions of liberty that are bringing home to the American people our forgotten history.Being an American history buff, educated in the time of God and Country, I take great pride in the greatest nation in the history of mankind, and render thankful prayer to my Creator daily that he allowed me to be born and raised in this wonderful country.Being of advanced years now, I still will answer the call of the Spirit of 76, in which the Sons of Liberty rallied the nation in a call to arms against anothe tyrannical government that threatened to put their foot on our neck. We won two wars against that tyranny and we will, by the will of God win this one, one way or other.I took an oath upon enlisting in the military 40 years ago to defend my nation and the constitution against enemies both foreign and domestic. Both have been identified, and that oath still in effect. Beware of Americans with their backs to the wall and the Second Amendment as our weapon.Personally, I prefer the polls, but . . .Thankyou once again. Yours in a strong AmericaThe Turban Torpedo

Friday, March 5, 2010 at 10:20 PM

refuse2lose said:

Thank you sir for your tireless work that you do.America I believe has a far worse and terrifying aggressor than the Taliban or Al Queda.Our greatest enemy comes from within,in the form of judicial activists who use their own relative morals instead of original intent when deciding cases,also the Liberal Left who are tearing our country apart piece by piece.They demand that God be removed from the country and from history,they call Believers racists,bigots and un-American.Until Christians in America take a stand and demand that God be allowed back in the public square,that kids be allowed to pray in school without the threat of condemnation,and demand that the Left stop demonizing Christianity while supporting every other religion,until we do these things and invite God back into the country that he had such a big part in creating we will continue to slide into our new role as 3rd world country.

Saturday, May 8, 2010 at 5:26 PM

Jan Cosgrove said:

So let's be clear. The "leftist" judges are worse than the folk who murdered some thousands on 9/11? This is because you think they:* have qualms about not executing legal minors or those who committed capital crimes in that state?* do not like the idea of a 14 year old being pregnant and having to not only give birth to but raise and be responsible for a child and actually like the idea of the pregnancy being terminated?* want people to be free to have gay relationships with other caring adults?* are willing to examine what other nations judiciaries do in the course of examining the constitutionality of an issue before them?Well how absolutely dreadful of them, seeking to ease injustice and misery when these come about through people trashing your constitution to tread on the rights of the oppressed and mal-treated."refuse2loose" - forgets the separation of church and state. Those who prostitute the name of God to justify and peddle their arrogant and filthy prejudices in the name of the Almighty, these are the ones who undermine decency, constitutionality and the good name of America at every turn. Such people were guilty of the crimes against the black people of America committed wholesale by states until desegregation. If the terms 'racist', 'bigot' etc fits, wear it with burning shame, cloaking oneself with religion of any description, Christian, Jewish, Islamic, to mask rottenness, corruption, cruelty, intolerance, arrogant pride etc, those are the far greater threats to America. Mr Reed, please calm down, you'll burst a gasket.

Saturday, May 15, 2010 at 6:35 PM

Bob Marshall said:

I remember as a young man sitting in front of the TV watching a message from Nikita Khrushchev in which he told American audience the USSR will never have to fire one shot at the United States. Your country will collapse from within. This was in 1957.While the USSR fell first.We are on that same course in a hurry.No one is stupid to believ you get out of debt by increased spending. Thai is unless you never intended to get out of debt in the first place.Especially when that spending is foolish. The US imports much more than we export. All the jobs are going overseas. Our government keeps getting larger. Government wants more give away programs. Military spending is so large no one actually knows just how much is spent. so much wasteful spending. The US can't even keep up interest payments on the National Debt.Obama promised change and change is what we are getting if you like a Socialist-Democratic and police state.

Thursday, July 7, 2011 at 2:34 PM