BY: Ryan S. Walters | @ryanswalters73
With the recent decisions by US Supreme Court, we are once again presented with a constitutional question that has been around as long as the Constitution: Which branch of government rightfully has the exclusive authority to interpret the Constitution and the laws of the United States?
Most contend that the power resides with the Supreme Court, including many conservatives, as a recent exchange between Megyn Kelly and Mike Huckabee will attest. Kenneth Starr has even referred to the Supreme Court as a “First Among Equals,” and while I have great respect for him, he is simply wrong in this regard.
Historically speaking, such an opinion has no basis in fact. The Supreme Court was never designated as the strongest of the three branches. In fact, it was not until the 1930s that the Court had its own building. Before that, it met in the basement of the Capitol, or where ever Congress allowed the justices to gather.
This was not by mistake; it was intentional. If you examine a copy of the original map of the City of Washington, drawn up by its planners, you will see that no Supreme Court building exists.
It is also not a mistake or accident that provisions for the Supreme Court were placed in Article 3 of the Constitution, while Congress, obviously intended to be the stronger of the three branches, was mentioned in Article 1, while the Office of the President was established in Article 2.
Furthermore, it’s very clear from the historical record that the Founders did not desire a strong Supreme Court. A proposal at the Constitutional Convention of 1787 called for a Council of Revision, a body that would include a supreme tribunal armed with a veto power over all national and state laws. The Council would have the authority to review every law passed throughout the Union and to decide what would be allowed and what would not be. The convention ultimately rejected the idea, so clearly the delegates did not want an all-powerful court usurping the powers of the people’s representatives.
The Convention eventually created the Supreme Court, which would exercise all judicial powers in cases brought before it, and a President who would take care of executive responsibilities, including the power to review all bills passed by Congress and either reject or approve them.
The Supreme Court was not entrusted with the power to make law, and proponents of the Constitution tried to reassure the public of this fact.
Alexander Hamilton wrote in Federalist #78 that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. 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.”
Those that opposed the new Constitution, known as Anti-Federalists, did not believe Hamilton and saw only trouble when they looked at Article 3. They wrote their own collection of essays, the Anti-Federalist Papers, to counter the arguments of the Federalists. “Brutus,” who was most likely Robert Yates, later Chief Justice of the New York Supreme Court,wrote three essays warning of an encroaching judiciary:
“The supreme court under this constitution would be exalted above all other power in the government, and subject to no control,” he wrote. “This power in the judicial, will enable them to mould the government, into almost any shape they please.” This is possible because, he said, “the supreme court has the power, in the last resort, to determine all questions that may arise in the course of legal discussion, on the meaning and construction of the constitution. This power they will hold under the constitution, and independent of the legislature. The latter can no more deprive the former of this right, than either of them, or both of them together, can take from the president, with the advice of the senate, the power of making treaties, or appointing ambassadors.” Mr. “Brutus” had it exactly right.
The Court, though, does not legally possess these vast powers, but usurped them, just as “Brutus” warned. Five unelected justices do not have an exclusive right to interpret laws and the Constitution, for there is nothing in the entirety of Article 3 of the Constitution that gives federal courts that power.
Chief Justice John Marshall, in the case of Marbury v. Madison, assumed for the Supreme Court the power of judicial review, that is to make the final decision on the constitutionality of all laws.
When handed down in 1803, the decision angered President Thomas Jefferson, who believed the federal courts, then under Federalist Party judges, were establishing a judicial tyranny over the rest of the government. “The Constitution… meant that its coordinate branches should be checks on each other,” Jefferson said. “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.”
Jefferson was skeptical of the right of the Supreme Court to exercise judicial review. “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.”
Other presidents had similar opinions and took even harsher action when the Court interfered with the responsibilities of the executive.
Andrew Jackson had absolutely no respect for John Marshall or the Supreme Court. In 1830, Congress passed the Indian Removal Act. Acting under that law, Georgia decided to remove the Cherokees within its borders but the Marshall Court sided with the Indians, ruling that they had a right to their ancestral lands and neither Congress nor Georgia could remove them. President Jackson reacted angrily. “John Marshall has made his decision,” he supposedly said, “now let him enforce it.” Jackson allowed Georgia to remove the Cherokee in defiance of the Court.
President Jackson knew what many have forgotten. “Courts have no law enforcement powers,” he wrote, “that is the prerogative of the executive alone.”
Abraham Lincoln also understood this fact and responded with even more anger when Chief Justice Roger B. Taney ruled that the President had exceeded his constitutional authority in waging war without congressional consent. At least according to the man who was to carry out the order, Lincoln wrote out an arrest order to have Taney detained, though the warrant was never acted upon. Rather than arrest the Chief Justice, President Lincoln simply ignored him and the Court’s order.
Early Presidents, like Jefferson and Jackson, believed that had as much write to determine constitutionality as did any court, and they often used one of their strongest weapons, the veto pen, to rule on the validity of laws.
Under Article 1, Section 7 of the Constitution, the President is given the power to veto, or reject, congressional acts. “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated….” And earlier Presidents took this power seriously.
In 1817, James Madison vetoed a bill for federal funding of internal improvements, projects such as roads and canals, using constitutional arguments to make his case. “I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated. The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.”
James Monroe did likewise in 1822 with his Cumberland Road Bill Veto. “I am compelled to object to its passage and to return the bill to the House of Representatives, in which it originated, under a conviction that Congress do not possess the power under the Constitution to pass such a law.”
In 1832, Andrew Jackson vetoed the re-chartering of the Bank of the United States in a famous altercation with Congress. “Having considered it with that solemn regard to the principles of the Constitution which the day was calculated to inspire, and come to the conclusion that it ought not to become a law, I herewith return it to the Senate, in which it originated, with my objections. The bank bill, Jackson wrote, is not “compatible with justice, with sound policy, or with the Constitution of our country.” Congress did not possess the constitutional authority to establish a bank, Jackson believed.
President Franklin Pierce rejected a bill for public works in 1854: “On such an examination of this bill as it has been in my power to make, I recognize in it certain provisions national in their character, and which, if they stood alone, it would be compatible with my convictions of public duty to assent to; but at the same time, it embraces others which are merely local, and not, in my judgment, warranted by any safe or true construction of the Constitution.”
In 1854 President Pierce vetoed another bill that would have provided government funds for the mentally insane. “I can not find any authority in the Constitution for…public charity,” he told Congress. “To do so would, in my judgment, be contrary to the letter and spirit of the Constitution and subversive of the whole theory upon which the Union of these States is founded.”
Grover Cleveland became the “Veto President” when he set a record of 414 vetoes in his first term alone. In 1887 President Cleveland rejected a bill to provide seeds for drought-stricken farmers in Texas. “I can find no warrant for such an appropriation in the Constitution,” he told Congress.
Early Presidents did not believe in the modern notion that Congress should pass any law it chooses, and then allow the courts to sort it out. Such actions would have been considered a dereliction of duty.
In addition to the powers and responsibilities of the President, Congress also has explicit constitutional authority over the Court. The Constitution vests Congress with “all legislative power,” that is all lawmaking authority. This is precisely why courts are not allowed to make laws from the bench.
Although the Constitution created the Supreme Court, all lower courts are creations of Congress, as is the right to set the number of justices on the Supreme Court. And Congress has raised and lowered the number of Justices throughout our history, and some of it for purely political reasons.
Just as the Civil War was ending in 1865, and the government was considering a plan of Reconstruction in the South, Vice President Andrew Johnson became President after Lincoln’s assassination. Even though he had remained loyal to the Union, Johnson was still a Southerner and Radical Republicans in the North, although friendly early on, grew more suspicious of him, a feeling that soon developed into pure hatred. Near the end of Johnson’s tenure in 1868, when two vacancies occurred on the Supreme Court, Republicans did not want Johnson to name any replacements. So Congress simply removed the two seats on the Court.
Johnson left the White House in 1869. The next year, the Supreme Court, in the case of Hepburn v. Griswold, ruled the Legal Tender Act unconstitutional. Congress passed the law in 1862, at the urging of Treasury Secretary Salmon P. Chase, to help finance the war against the South, as well as fund other Republican spending schemes. The Legal Tender Act was an inflationary plan that allowed for the creation and circulation of a national currency called Greenbacks, fiat money that did not have the backing of gold. In all, Congress issued more than $450 million in paper dollars during the war, which produced enough inflation to double the cost of living. The United States had not seen that level of inflation since the days of the American Revolution with the old, worthless Continental dollar.
So when the law came before the Court in 1870, even though it was headed by Chief Justice Salmon P. Chase, it was struck down because the Constitution specifically gives Congress the authority to “coin money,” not to print it. The decision angered Republicans in Congress, who then decided to replace the two seats to sway the Court, raising the number back to its present total of nine. President Grant then nominated two new Stalwart Republican justices in an effort to “pack it,” and the Court reversed itself a year later, in Knox v. Lee, allowing Congress the authority to issue paper currency.
Congress also has the authority to limit the Court’s appellate jurisdiction, a tactic that has been discussed in recent years by congressional Republicans in the hopes of stopping the Court’s attack on traditional American institutions. Though ridiculed by Democrats as “unconstitutional,” Congress possesses the constitutional power to limit cases the Court can hear, under Article 3, Section 2 of the Constitution:
“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.”
Congress has used that power in the past when needed. As with the issue of the Court’s size, the issue of appellate jurisdiction was tested during the heated days of Reconstruction in the case of Ex Parte McCardle.
In 1869, a Mississippi newspaper owner and former Confederate general, William McCardle, wrote and published a series of editorials criticizing the North and its Reconstruction program. Acting under the Reconstruction Acts of 1867, which provided for martial law, military commissions and tribunals, and the abolishment of the right of habeas corpus, the Union military commander in McCardle’s district arrested him. McCardle sued to gain his freedom under the Habeas Corpus Act of 1867, a law passed by Congress that defined, by federal law, the rights under habeas corpus.
The Supreme Court, under Chief Justice Chase, had previously limited federal authority to try civilians in military courts, and now Radicals in Congress feared that if the Court heard the McCardle case, it might throw out the congressionally-approved Reconstruction Acts, which would threaten the entire congressional Reconstruction program.
So Congress, acting under Article 3, Section 2 of the Constitution, removed the Court’s jurisdiction in all cases arising under the Habeas Corpus Act by attaching a rider to an appropriations bill. When the McCardle case came up for review, the Supreme Court bowed to Congress’s right to withdraw its jurisdiction and did not hear the case.
With such abundance of historical evidence, it is perplexing why one would place any amount of trust in the Supreme Court, an unelected body that today has such great influence to affect public policy, when clearly the other two branches have been awarded more power by the Constitution.
As Thomas Jefferson wrote to a friend, “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.” Justices, with their power, are “more dangerous” because “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.”
Jefferson had it exactly right. If federal courts are allowed to make political decisions, our liberty is in grave danger. And we are seeing that before our very eyes. It’s time the Republican Congress gained control of this lawless leviathan.