Saturday, April 16, 2005


Ed Brayton on the Judiciary

From Ed's blog:

"No Tom [De Lay], the reason we have a separation of church and state is because the first amendment was designed specifically to create one."

The establishment clause was meant to apply to the Federal government.

"And the reason we have judicial review is because Article III was intended for precisely that purpose."

Here is the relevant text of Article III:

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, 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.
(emphasis mine)

Ed needs to read the Constitution again (or, more appropriately, have it read to him). The Supreme Court's "power" of judicial review is subject to Congressional authority, just as De Lay said.

"How does someone get to be in the Congressional leadership without reading the Federalist Papers, for crying out loud? If his district doesn't bounce this babbling bobblehead out of office in the next election, they truly have lost their minds."

How does someone get to be a pretentious, deluded classical liberal without reading Jefferson:

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. 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. ME 14:303

"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. ME 15:451

"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. ME 16:47

Judicial Despotism

"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. ME 11:51

"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. ME 15:277

"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. ME 15:212

"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. ME 16:114

Each Department is Independent

"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. ME 15:214

"That branch which is to act ultimately and without appeal on any law, is the rightful expositor of the validity of the law, uncontrolled by the opinions of the other co-ordinate authorities." --Thomas Jefferson to S. H. Torrance, 1815. ME 14:304

"Nothing in the Constitution has given [the judges] a right to decide for the Executive, more than to the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them." --Thomas Jefferson to Abigail Adams, 1804. ME ll:50

"The federal judges... cannot issue a mandamus to the President or legislature, or to any of their officers, the Constitution controlling the common law in this particular." --Thomas Jefferson to Spencer Roane, 1819. ME 15:214

"Each of the three departments has equally the right to decide for itself what is its duty under the Constitution without regard to what the others may have decided for themselves under a similar question." --Thomas Jefferson to Spencer Roane, 1819. ME 15:215

"The judges certainly have more frequent occasion to act on constitutional questions, because the laws of meum and tuum and of criminal action, forming the great mass of the system of law, constitute their particular department. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough... The people themselves,... [with] their discretion [informed] by education, [are] the true corrective of abuses of constitutional power." --Thomas Jefferson to William C. Jarvis, 1820. ME 15:278

Contradictory Decisions

"It may be said that contradictory decisions may arise in such case and produce inconvenience. This is possible and is a necessary failing in all human proceedings. Yet the prudence of the public functionaries and authority of public opinion will generally produce accommodation. Such an instance of difference occurred between the judges of England (in the time of Lord Holt) and the House of Commons, but the prudence of those bodies prevented inconvenience from it. So in the cases of Duane and of William Smith of South Carolina, whose characters of citizenship stood precisely on the same ground: the judges in a question of meum and tuum which came before them decided that Duane was not a citizen; and in a question of membership, the House of Representatives under the same words of the same provision adjudged William Smith to be a citizen. Yet no inconvenience has ensued from these contradictory decisions. This is what I believe myself to be sound." --Thomas Jefferson to W. H. Torrance, 1815. ME 14:304

Alternative Solutions

"The... proposed [Constitution of Spain]... has one feature which I like much: that which provides that when the three coordinate branches differ in their construction of the Constitution, the opinion of two branches shall overrule the third. Our Constitution has not sufficiently solved this difficulty." --Thomas Jefferson to Valentine de Foronda, 1809. ME 12:318

"There is another opinion entertained by some men of such judgment and information as to lessen my confidence in my own. That is, that the Legislature alone is the exclusive expounder of the sense of the Constitution in every part of it whatever. And they allege in its support that this branch has authority to impeach and punish a member of either of the others acting contrary to its declaration of the sense of the Constitution. It may, indeed, be answered that an act may still be valid although the party is punished for it, right or wrong. However, this opinion which ascribes exclusive exposition to the Legislature merits respect for its safety, there being in the body of the nation a control over them which, if expressed by rejection on the subsequent exercise of their elective franchise, enlists public opinion against their exposition and encourages a judge or executive on a future occasion to adhere to their former opinion. Between these two doctrines, every one has a right to choose, and I know of no third meriting any respect." --Thomas Jefferson to W. H. Torrance, 1815. ME 14:305

"[How] to check these unconstitutional invasions of... rights by the Federal judiciary? Not by impeachment in the first instance, but by a strong protestation of both houses of Congress that such and such doctrines advanced by the Supreme Court are contrary to the Constitution; and if afterwards they relapse into the same heresies, impeach and set the whole adrift. For what was the government divided into three branches, but that each should watch over the others and oppose their usurpations?" --Thomas Jefferson to Nathaniel Macon, 1821. (*) FE 10:192

Ed Brayton and others of like mind champion their erroneous view of judicial review precisely because it is the vehicle by which they subvert the Democratic process that underlies our Republic.


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