Tuesday, January 26, 2010

Activist Judges

There has been a lot written about the recent Supreme Court decision on Citizens United v. Federal Election Commission that invalidated parts of the 2002 Bipartisan Campaign Reform Act, commonly known as the McCain-Feingold Act. Some people agree with the decision and some people don't.

But what is not being asked is where did the Supreme Court get the power to decide if something is unconstitutional?

Ask 100 people on the street, and probably 99, if not 100, of them will answer the Constitution. They will be wrong. Article 3 of the Constitution defines the Judicial Branch. No where in there is the Supreme Court given the power to decide what is constitutional and what is not.

Well then, where did it come from? It came from a Supreme Court decision. Yes! They gave the power to themselves. It came from Marbury v. Madison in 1803. This case made them the ultimate power in deciding constitutional adherence.

Thomas Jefferson, founding father and president at the time, was not happy. He knew the intent of the writers of the constitution. Hell, he knew the writers of the constitution! This is what he had to say at the time.

"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

"Despotism of an oligarchy"

Have we reached that condition?


  1. The justices get no pressure from Congress, Obama spoke against their ruling that corporations are people, but that wasn't real pressure, just talk. So you ask: Have we reached that condition? Seems like it.

  2. I think much of the common persons ambivalence (or ignorance) about the scope of the courts powers has led us to our present state. It would take a might push to get this horse back in the barn.

  3. Yes, we have (reached that condition).