Judicial Fallacies That Promote Tyranny

Three fallacies articulated by Chief Justice Charles Evans Hughes in his article The Court and Constitutional Interpretation, and promoted by the judges, lawyers and others who desire a national government with unlimited powers at the expense of the states and the people are quoted below.

I’ll address each judicial fallacy in turn starting with –

Independent

“The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society’s need for order and the individual’s right to freedom. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.” (Emphasis added)

Judicial independence implies freedom from interference or control by either the legislative or the executive branch of the federal government. However, nothing could be further that the truth – constitutionally if not in reality. The powers of the Supreme Court and the lesser courts may be enumerated in the Constitution, but makeup, number and members are determined by the legislative branch with nominations coming from the executive.

Article I, Section 8 – “To constitute tribunals inferior to the Supreme Court”

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.” (Emphasis added)

Nowhere does it say how many judges or what the process is. The legislature decides that. And that doesn’t sound too independent. Chief Justice Charles Evans Hughes’, and the Court itself, claim independence over the other two branches, but they further claim that they, and they alone, are above petty political partisanship. Are judges not chosen by a president, who holds certain political views? And are they not then championed in the Senate by those of the president’s political party because they believe the nominee holds their same political, philosophical and constitutional views? Of course they are! Why else would we hear the cry that we need this or that person elected as president so we can get “our people” on the court?

Independence also implies that you are not under someone else’s control or direction. The checks and balances laid out in the Constitution imply just the opposite. Each branch is not free to do what it pleases without being hindered in some way by the other branches. There are clear checks and balances between the legislative and the executive laid out in Articles I and II of the Constitution. But what check on either of those two branches does the judiciary enjoy? There are none that I can determine from reading Article III of the Constitution; there is only the one that the Supreme Court gave itself – the one the other two branches have failed to call them on – “judicial review,” which we will get to in just a moment.

The Supreme Court seems to believe that regardless of what the other two branches do, it, and only it, can override them and declare the other branches actions unconstitutional  – that completely negates their own statements claiming three independent and coequal branches.

Again, independence implies that lack of control by any outside force, but the Constitution clearly lays out that that is not the case.

Coequal

Again from the Article by Chief Justice Charles Evans Hughes:

“The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society’s need for order and the individual’s right to freedom. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.” (Emphasis added)

Much of the idea of coequal is wrapped up in the concept of independent, but it also implies that you have the same power, responsibilities and authority. That is clearly not the case when it comes to the three branches of the federal government. The Constitution lays out the requirements for the president and the legislature regarding personal age and citizenship requirements, how they are elected and what their terms of office shall be.

What are those terms of office, are they equal? Legislators – no limit (whether that is a good thing or not can be debated). President two terms, and for the judiciary – nothing.

Well, there is one ambiguous requirement “shall hold their offices during good behavior,” there is no “lifetime tenure.” They can be removed at any time by the legislature. However, that makes it even clearer that justices are not coequals since the House of Representatives determine the definition of “good behavior,” which could lead to impeachment and trial in the Senate. Again, only the legislature has the power to remove members of the government from office for offenses other than actual criminal behavior.

One other important power that the Legislature holds over the judicial branch is the power to restrict the cases it may hear, which has been used several times, one being in 1866 Ex Parte Milligan when the Court ruled against restrictions on habeas corpus. Congress passed legislation limiting the Court’s jurisdiction to hear cases involving martial law and military trials, further demonstrating that the Court is not a coequal.

As an aside, when making a list, most people place the most important first. They also spend the most time defining the role of the most important Therefore, I would contend that since our founders spent considerable time debating and laying out the three branches and their functions and they wrote them down in order of importance.

That being the case this should help dispel the fallacy of coequal branches:

• Article I — 2265 words to layout the duties, powers and responsibilities of the Legislative Branch
• Article II — 1023 words to layout the duties, powers and responsibilities of the Executive Branch
• Article III — 375 words to layout the duties, powers and responsibilities of the Judicial Branch

Only a lawyer would say that these three articles describing the duties, powers and responsibilities of the three branches are equal.

Judicial Review

From the previously cited article by Chief Justice Charles Evans Hughes:

“The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations.” (Emphasis added)

While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution. (Emphasis added)

Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.

Despite this background the Court’s power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that the Supreme Court’s responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. “It is emphatically the province of the judicial department to say what the law is,” he declared. (Emphasis added)

In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions…”

Did you get that?

““The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of “judicial review” has given the Court a crucial responsibility…”

“The function of judicial review is not explicitly provided in the Constitution”. No such power was enumerated in the Constitution; it was just “invoked by Chief Justice John Marshall in Marbury v. Madison”.

They have claimed that they and only they can determine what is or is not constitutional based on their own interpretation of the constitution, no not THE Constitution, but their “living Constitution”.

The justices completely violated the letter of the Constitution, stretched Marshall’s opinion, and gave themselves power that the framers of the Constitution never intended them to have – the sole say on constitutionality. IF the framers of the Constitution wanted them to have that exclusive power, they would have listed it in Article III.

What the Court did was amend the Constitution without actually following the procedure laid out in the document. While, it does have the authority to determine the constitutionality of an act, that authority is not exclusive. It is not the final and sole arbiter of what is Constitutional.

Therefore, the question is why, why are these fallacies allowed to stand, why has the legislature and even the president allowed the lie to continue. Simple enough, because the Supreme Court has repeatedly allowed the other two branches to exceed their Constitutional powers, each branch growing more powerful with each new unconstitutional action.

There is but one truth and that truth is that the states established the Constitution and formed the federal government and they and only they have the final say as to what is or is not Constitutional. The states can declare federal actions unconstitutional to be “null and void” within their own borders and that power is NULLIFCATION!