The urgent need to restrain an out of control judiciary

"There is no liberty, if the power of judging be not separated from the legislative and executive powers." - Montesquieu

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This justice statue in Frankfurt, Germany depicts a judicial power foreign to our Constitution

COLORADO SPRINGS, Colo., February 26, 2016 — Alexander Hamilton got it wrong: The federal judiciary has become the most powerful branch of the federal government. We’ve seen it in just the last few weeks.

On February 3, U.S. District Judge James Robart ruled in favor of Washington Attorney General Bob Ferguson, who sued to invalidate key provisions of President Trump’s executive order on immigration. On appeal, the Ninth Circuit Court upheld Robart’s decision.

While the right to manage immigration and naturalization belongs to the Congress (Art I Sec 8) and common defense is the responsibility of the executive (Art II Sec 2), these judges took it upon themselves to overrule the order. Instead of ignoring the court, the administration is working on a revised executive order that will pass judicial muster.


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While that is the most widely known recent case, that’s not all that’s happened just this month.

On February 21, the U.S. Court of Appeals for the Fourth Circuit ruled that the Second Amendment doesn’t protect assault weapons in a case involving a 2013 Maryland law that banned the sale, possession, transfer, or purchase of what the law called “assault weapons.”

The decision followed a tortuous path through the judiciary: A district court ruled that the law was constitutional, but a panel of judges from the Fourth Circuit reversed that decision. Finally, the full court voted to vacate that decision and rehear the case, at which point the Maryland law was again upheld.

On the same day, U.S. District Court Judge Sam Sparks in Austin, Texas issued a preliminary injunction to prevent the state from cutting off Medicaid dollars to Planned Parenthood. Texas is now the sixth state where federal courts have kept Planned Parenthood eligible for Medicaid reimbursements—on the basis that they provide services other than abortion.

Service like being a lead sponsor of the Women’s March on Washington, no doubt.

In these three cases, the federal judiciary is ruling in cases where the executive branch or the states have clear constitutional authority and were acting within that authority; where the Supreme Court has already ruled in favor of the Second Amendment; and where the state has authority to decide what organizations may participate in a joint federal-state program.


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The federal judiciary assumed law-making powers, contradicted itself with its rulings and assumes power over the states it was never intended to have.

This government by black-robed bureaucrats is not what the Founders intended. Knowledgeable of how the judicial power was wielded in Great Britain, they determined that it would be separate from the law-making power of the legislature.

Alexander Hamilton, writing the Federalist 78, quoted Montesquieu that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”(Spirit of the Laws, Vol 1, p. 181, according to his footnote).

He also wrote the oft-quoted phrase, “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.”

Today, that’s not at all the case.

Hamilton’s argument in favor the federal judiciary is contained in the Federalist Papers 78-83, although 78 is most often referenced. The framers of the Constitution favored the legislative branch for a number of reasons. It was the first branch mentioned in Article I and contains the most developed powers of the three branches.

The judiciary is Article III. Section 1 describes the Supreme Court and “such inferior Courts as the Congress may from time to time ordain and establish.” Section 2 describes the jurisdiction of the federal courts and Section 3 supplies a definition of treason.

That’s all there is. The federal courts have long overstepped their bounds.

Hamilton thought the federal courts weak because, he wrote, “It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” (Federalist 78, emphasis in the original)

“It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” (Federalist 78, emphasis in the original)

Indeed, Andrew Jackson is widely quoted as saying, “John Marshall has made his decision; now let him enforce it!” The sword of governmental power, wrote Hamilton, belongs to the executive, while the purse belongs to the legislative.

“John Marshall has made his decision; now let him enforce it!”

The sword of governmental power, wrote Hamilton, belongs to the executive, while the purse belongs to the legislative.

Hamilton argued, however, that a federal judiciary is needed to carry out the powers in Section 2, which amount to disputes between the federal government and foreign powers, and between two or more states.


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He also acknowledged that the legislatures may overstep their bounds and write laws contrary to the Constitution. What then? Should the legislature itself be the judge of whether their actions are constitutional?

No, writes Hamilton. The courts ought to act as “an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”

This does not, however, make the Supreme Court the final arbiter of what is constitutional, as we have, come to believe. His argument is worth reproducing in full:

“Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

The judges may only rule in consonance with the Constitution:

“A constitution is, in fact, and must be regarded by the judges, as a fundamental law.”

Hamilton addresses the argument against a federal judiciary by citing the argument as follows:

“The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mold them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous.” (Federalist 81)

Hamilton counters this first by referring back to his argument in No. 78 that the Court is bound by the Constitution. Secondly, he points to the ability of the legislature to correct for judicial overreach.

Acting to unconstitutionally overrule the legislature, the judiciary “would hazard the united resentment of” it and judges could be impeached. In fact, Hamilton writes that judicial misconduct constitutes “a cogent argument for constituting the Senate [as] a court for the trial of impeachments.”

Judges have been impeached. Court decisions, even those of the Supreme Court, have been ignored. But the general progress of the judicial power of the federal government has been to increase its power. Congress has not taken advantage of its constitutional authority to either limit the authority of the courts or to dis-establish them.

The people and their representatives have the power to stop judicial overreach. Alexander Hamilton pointed the way. Do we have the will to use that power?

“When politicians don black robes and seize powers they do not have, they should be called out for what they are – usurpers and petty tyrants.…elected representatives and executives make the laws and rule the nation. Not judges, and not justices.” –Patrick Buchanan

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