I started reading Nullification: How to Resist Federal Tyranny in the 21st Century by Thomas E. Woods, Jr. Woods whom I’ve blogged about before is Senior Fellow at the Ludwig von Mises Institute. In the struggle between an overreaching federal government and state sovereignty he notes that for Jefferson the federal judiciary was not adequate as an arbiters, he goes on to quote Jefferson:
To consider the Judges of the Superior Court as the ultimate Arbiters of Constitutional questions would be a dangerous doctrine which would place us under the despotism of oligarchy. They have with others, the same passion of party, for power, and for the privileges of their corps – and their power is more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single Tribunal. I know no safe depository of the ultimate powers of society but the people themselves, (pg. 45).
Woods even notes that James Madison argued that the judiciary could also “commit transgressions against the Constitution” and they along with Congress had to be guarded against. Woods quotes Madison at length from the Report of 1800 which affirmed the Virginia Resolutions of 98 that nullified the Alien and Sedition Acts of 1798.
The resolution supposed that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature.
However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any remedy, the very Constitution which all were instituted to preserve, (pg. 55-56).
It would seem that Jefferson and Madison described the state of the judiciary today. For some reason this branch of government has been so elevated that many view the judiciary as being above partisanship. Jefferson knew that wasn’t the case. Both recognized that they were fallible, capable of making unconstitutional decisions, and needed to be held into account.
Jefferson said that the people themselves should be the “safe depository of the ultimate powers of society” not the courts, but some just don’t get that. The courts must be held accountable, the Constitution did not give them the role of super legislature. It did not give them the ability to change the Constitution as they see fit through their rulings. Even if you subscribe to the Constitution being a “living and breathing” document. It is the people, not the courts who get to decide how the Constitution is changed through the amendment process.
When they stray… when they go beyond their Constitutional it is our duty to exercise whatever means we are given constitutionally to provide redress. Whether that is through a retention vote, a constitutional convention or through returning to judicial elections.
They must be reminded of their proper place.