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Journal On Lawn's Journal: Should the Courts Decide? 13

Journal by On Lawn
Below is going to be my continuing collection of warning from prominent US figures about trusting the courts with ultimate authority in politics. This is designed to answer the question of whether or not we need the courts to legislate for us, a pre-emminent question in the debate over marriage.

Feel free to check back often, suggest quotes.

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(This one was provided by The Tibetan Traveler, a poster on another forum).

When founded the Supreme Court, unlike today, actually tried cases. It wasn't until Madison, over twenty years after the constitution was adopted, that they actually made a ruling based on constitutionality. In Madison v Marbury, the court claimed more then the power to interpet the constitution. It claimed the exclusive right. I found this link, giving the background and the issues involved in the court ruling.

"Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." --Thomas Jefferson to W. H. Torrance, 1815

"But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force." --Thomas Jefferson to William Johnson, 1823.

"But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best." --Thomas Jefferson to John Cartwright, 1824.

"The Constitution . . . meant that its coordinate branches should be checks on each other. But 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." --Thomas Jefferson to Abigail Adams, 1804.

"To consider the judges as the ultimate arbiters of all constitutional questions [is] 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. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." --Thomas Jefferson to William C. Jarvis, 1820.

"In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them 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. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . 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." --Thomas Jefferson to Spencer Roane, 1819.

"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt." --Thomas Jefferson to Edward Livingston, 1825.

"My construction of the Constitution is . . . that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal." --Thomas Jefferson to Spencer Roane, 1819

(credit to LandmarkCases.org)

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I've often heard it said that slavery wasn't abolished by election. Well, it wasn't abolished by the Court either. Remember that at the time when Abe Lincoln came to office the Supreme Court thought slavery was constitutional. Abe disagreed, but even though he was later painted as someone who rushed to war (sound familiar?) he was a keen advocate of getting the legislature and populace to fix the situation. In fact, he wouldn't have wanted it fixed by the Supreme Court even if they could...

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 people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

Why should there not be a patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world? In our present differences, is either party without faith of being in the right? If the Almighty Ruler of Nations, with His eternal truth and justice, be on your side ..., that truth and that justice will surely prevail by the judgment of this great tribunal of the American people.

My countrymen, one and all, think calmly and well upon this whole subject. Nothing valuable can be lost by taking time. If there be an object to hurry any of you in hot haste to a step which you would never take deliberately, that object will be frustrated by taking time; but no good object can be frustrated by it. ... If it were admitted that you who are dissatisfied hold the right side in the dispute, there still is no single good reason for precipitate action. Intelligence, patriotism, Christianity, and a firm reliance on Him who has never yet forsaken this favored land are still competent to adjust in the best way all our present difficulty.

The Government will not assail you. You can have no conflict without being yourselves the aggressors. You have no oath registered in heaven to destroy the Government, while I shall have the most solemn one to 'preserve, protect, and defend it.' -- Abraham Lincoln, First Inaugural Address, March 4, 1861

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Another good essay on the subject is found here. It was written by Orrin Hatch ((R) Utah and chair of the Judiciary Committee) and Jim Talent ((R) Missouri)..

In the debate over traditional marriage, the cultural dominoes are falling in the wrong direction. Activist judges, who specialize in taking issues away from the people and deciding those issues instead, intend to make traditional marriage a thing of the past. Their decisions, like the one that will allow Massachusetts clerks to begin issuing marriage licenses to same-sex couples this week, and the aggressive political and legal strategy driving them, make clear that protecting traditional marriage will require amending the Constitution.

America's founders believed, as James Madison put it, that the legislative branch "necessarily predominates" in a representative democracy. We all learned in civics class that the legislative branch makes the law, which means the judicial branch doesn't. Most state constitutions go beyond separating the branches, and two-thirds explicitly prohibit judges from legislating. With only the power to interpret the law, the judiciary is supposed to be, in AlexanderHamilton's words, the "least dangerous" branch.

Times have changed. Judges have become the most dangerous branch by following former Chief Justice Charles Evans Hughes' view that the law is "whatever the judges say it is." Judges cannot change the literal words of the Constitution or a statute, so they make law by changing the meaning of those words. The obvious danger is that if the law means whatever judges say it means, judges control the law, run the country and define the culture.

Since before the founding of the republic, legislatures enshrined the traditional view that marriage is a union of a man and a woman. Only in the last decade have judges attempted to substitute their own views, effectively amending state constitutions by judicial fiat and imposing new marriage policies. Neither the people nor their legislatures chose any such thing.

In addition to judges acting like legislatures, some rogue public officials are acting like judges. Although California law defines marriage as between a man and a woman, for example, San Francisco Mayor Gavin Newsom simply declared it unconstitutional, and same-sex couples from at least 46 states have obtained a marriage license there. Similarly, same-sex residents of more than 30 states have obtained marriage licenses in Multnomah County, Ore. Litigation is inevitable as they challenge their home states to recognize these same-sex unions.

This crisis requires a constitutional solution for at least three reasons. First, amending the Constitution is the only way of reining in the activist judges who will otherwise undermine traditional marriage. Neither judicial self-restraint nor the separation of judicial from legislative power is enough. Nor, it appears, are explicit bans on legislation by judges in state charters. The Massachusetts Supreme Judicial Court's decision that same-sex couples may wed, which goes into effect this week, is a legislative act openly defying the Massachusetts Constitution's edict that judges "shall never exercise the legislative" power.

Second, the 1996 Defense of Marriage Act (DOMA) will no longer effectively protect traditional marriage. While the Constitution requires that states give each other's judicial proceedings "full faith and credit," it also lets Congress make exceptions. Supported by 79 percent of House members, 85 percent of senators and signed by Bill Clinton, DOMA guarantees that one state need not recognize another's non-traditional union. Even so, federal and state court decisions since DOMA have made legal analysts, enthusiastically or grudgingly, concur that DOMA itself likely will not survive a court challenge before activist judges.

Third, amending the Constitution of the United States is the only way for the people of the United States to take this issue back. "We the people" established the Constitution, and only we can rightfully amend it by the single process outlined in the charter, a process that excludes the judicial branch. No amendment on any subject becomes part of the Constitution unless supported by two-thirds of Congress and three-fourths of the states. Amendments by judges, by contrast, defy the people and lack their consent.

The first right of the people is to govern themselves. Activist judges take away that right, sapping democracy's legitimacy and vitality. When courts deny the people the right to decide cultural issues for themselves, they undermine both the freedom and the opportunity to form consensus provided by self-government. Americans on both sides of the marriage debate deserve to have their voice heard and the potential to make it effective. Such civic participation in elections, through legislatures, or in amending the Constitution, is an antidote to judicial activism. Defending the people's right to govern themselves generally and protecting traditional marriage specifically require responding to this judicial activism by amending the U.S. Constitution.

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Should the Courts Decide? More

Should the Courts Decide?

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  • Not so. I claim that the legistlature is the 'branch that's broke,' not the judicial. Were we to have true representation by resetting the ratio of citizens:reps back to what it was at the beginning (allowing your voice to be heard by your 'critter), and repealing the XVIIth amendment [cornell.edu] (restore state representation), then that law-making body would truely represent the will of the people.

    The Eminent Tribunal, as your quote says, is only as effective as the laws it has to work with. Pass a constitutional amen

    • I claim that the legistlature is the 'branch that's broke,' not the judicial.

      I think you are working on a different case than ol' Abe. Honest Abe points out specifically how the eminent tribunal is broken when he says, "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 people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tr
      • Your quote from old Abe makes me think he doesn't understand his own government. People in the US were most certainly not their own leaders. Witness women and slaves for example. In many states in 1776, ownership of real property was required. And all of this was merely to vote. As has been pointed out time and again (and will be again in the future) the US is not a democracy, but rather, at best, a representative democracy. The people best suited to legislate and enforce are chosen to do that on behalf of
        • Your quote from old Abe makes me think he doesn't understand his own government. People in the US were most certainly not their own leaders. Witness women and slaves for example.

          You'll find out that Abe wanted to change that all along. Many of his quotes going into office have been used to build a case that he was (ahem) rushing to war becuase he wanted to free slaves, etc...

          To put it quickly, your getting the second half of the dialogue. At the time his opposition wanted the Supreme Court ruling (pro-sl
    • Not so. I claim that the legistlature is the 'branch that's broke,' not the judicial. Were we to have true representation by resetting the ratio of citizens:reps back to what it was at the beginning (allowing your voice to be heard by your 'critter), and repealing the XVIIth amendment (restore state representation), then that law-making body would truely represent the will of the people.

      The Eminent Tribunal, as your quote says, is only as effective as the laws it has to work with. Pass a constitutional a

      • How would you "fix" it?
        • We need to appoint people like Scalia and Rehnquist to the Supreme Court who respect the traditions of this country. As much as I dislike what is happening in Iraq, I will probably vote Republican because of the strong possibility that some justices will be retiring soon
          • I agree but I suggest this, give the legislature the ability to nullify (with or without clarification). Something as clarifying as "Nothing in the Constitution should be construed to mean there is a right to abortion unless specifically enumerated". Or simply "your decision is far to breaching of your powers into the legislation." Or none at all as if to say, "try again".

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