8.2 Judicial Tyranny in America
The understanding of how American freedom was lost in and through the judiciary should already be visible from our discussions of previous topics. We have seen how the John Marshall courts energized and applied the centralizing effects of the Constitution and the power of the “Federalist” coup in the areas of localism, State’s rights, commerce, money and banking, taxation, and more. The precedent set by Marshall’s activism was embraced by later justices who picked it up and ran in the areas of education, welfare, and again, much more. Legislation by the bench has been an American tradition—tyrannical as it may be—since the beginning.
Partisan Politics and the Supreme Court
If you remember correctly, the establishment of a single national Supreme Court was one of the major issues objected to by the anti-federalists. Candidus warned that the court would “occasion innumerable controversies.” “A Friend to the Rights of the People” said the Supreme Court may prove “a source of mischief and ruin to thousands” by which “the course of public justice may be much obstructed, the poor oppressed, and many undone.”1 “An Old Whig” called the Court’s constitutional appellate power “destructive to the principles of liberty,” and yet this power could not be extinguished even by legislation.2 Brutus, as we noted earlier, warned clearly, “If . . . the legislature pass any laws, inconsistent in the senses the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature.” He saw the great danger of unelected and unaccountable judges to the future peace of the country:
when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but with a high hand and an outstretched arm.3
For reasons such as this, The Federal Farmer believed “we are in more danger of sowing the seeds of arbitrary government in this department than in any other.” He saw the established State courts as largely adequate and warned against expansion:
judicial power is of such a nature, that when we have ascertained and fixed its limits, with all the caution and precision we can, it will yet be formidable, somewhat arbitrary and despotic—that is, after all our cares, we must leave a vast deal to the discretion and interpretation—to the wisdom, integrity, and politics of the judges.4
The “politics of the judges” indeed became a major factor. The American judiciary was politically compromised from very early on as most Court appointees held Nationalist sympathies. We have mentioned how Marshall spent his career legislating Hamilton’s state papers from the bench. It was much more widespread than just Marshall—his brand of judicial activism trickled down to all inferior courts as well.
The District Court was crawling with partisanship. In 1793 a Federalist civil servant “commented that the federal judiciary had ‘assumed a party complexion.’” That same year, William Ellery wrote to Alexander Hamilton saying of the federal judges, “They have become a band of political preachers.” Another critic in 1797 said, “It has . . . become a regular practice of the federal judges to make political discourses to the grand jurors throughout the United States.”5 These men were politically committed before they ever got to the bench. Indeed, out of 28 district court judges during the Nationalist-dominated 1790s, 21 had been politically active in support of the Federalist cause; of these, 14 were either delegates to the Constitutional Convention or to state ratifying conventions.6 Only three ever even questioned nationalization, and these came to favor it afterward. Throughout their careers these judges remained active in party politics and often were described or even boasted themselves in such terms. Nathaniel Chipman of Vermont, for example, was one of the State’s “major political strategists,” and an “effective and unscrupulous practitioner of magnate politics.”7
Federal judges during this era openly participated in party meetings and election campaigns. Some did not shy from private intimidation. Judge James Duane—a former delegate to the Constitutional Convention and member of the Hamiltonian cabal of New York—owned large tracts of rental property in upstate New York. He is described as a “powerful landlord” who would “exert undue pressures on tenants at election time.”8 Duane’s partisan eagerness took him too far eventually when he seized French ships in violation of existing treaties. When confronted by fellow Federalist and Secretary of State Edmund Randolph for his offense, the New York cabal cited a Jeffersonian conspiracy of “partizans of the French Sans Culottes” (revolutionaries). The propaganda effort failed and Duane was eventually forced to resign.9
And of course, being the main part of their job, their judicial decisions reflected their biases. In one case, District Judge David Sewell of Maine used his bench to bully a jury into a guilty verdict against his political rivals. Certain defendants had been charged with violating the wildly unpopular Jay Treaty. “Sewell instructed the jury to find him guilty. In his charge to the jurors, he pointed out that both the defendant and his defense attorney were political opponents of the government and Constitution.”10
After John Adams’ Alien and Sedition Acts of 1798, the Federalist political activism grew even more overt and pervasive. Despite the despotic nature of the Acts which allowed Adams to deport people who merely criticized him or the government in print—a blatant infraction of the First Amendment—a full half of the sitting district court judges eagerly enforced the new laws.11 In various politically-motivated cases during this time, political rivals in court were specifically targeted as examples, ridiculed and mocked, denied copies of court documents pertaining to their hearings, had juries stacked against them (a practice encouraged and promoted by judges), refused time to prepare adequate defense, and even rushed to trial without their lawyers present.12
The historian concludes,
[W]hat happened in the district and circuit courts in the 1790s cannot simply be written off as the bias of a few partisan judges involved in a handful of isolated cases. . . . Political activism helped loosen political emotions and corrupt the objectivity of otherwise distinguished, highly qualified jurists in every part of the nation. Thus, it may be said, if an independent federal judiciary did emerge as a basic building block of American liberties, it was a lodgment that took place only after the generation of the Founding Fathers.
It is clear . . . that both the first United States district and circuit courts were among the most thoroughly politicized federal judicial institutions in American history.13
The Establishment of Broad Construction
Among those most annoyed by judicial partisanship in this era was the most outstanding spokesman of the rival party, Thomas Jefferson. He was involved directly in the landmark case Marshall alley-ooped to himself, Marbury v. Madison (1803). As Secretary of State under Adams, and in the waning days of that administration, Marshall signed and sealed several appointments of “midnight judges” to further pack the judicial system with Federalist activists. But upon change of administration, Jefferson took office and forbade the Secretary, Madison, from delivering the letters. But Marshall had orchestrated the whole thing. One of the appointees, William Marbury, filed suit to obtain his office anyway. The case went to the Supreme Court and Marshall decided it. Thus, while Secretary of State, he tossed the case in the air, then moved over to the Justice position and slam-dunked it.
And in deciding it, he made a very clever move: he used the judicial function of the Court itself to declare that the Court itself had no jurisdiction to decide the case! In the process of this decision, he declared the Judicial Act of 1789—which had given the Supreme Court power to hear such cases as this—was actually unconstitutional. Thus Marshall used the trivial case of Mr. Murbury as a Trojan horse to trump legislation with judicial dictum. The activity has since been called the doctrine of “judicial review.”
Jefferson was quite perturbed by Marshall’s activism. Late in his life, in a letter to Justice William Johnson (whom he had appointed in 1804), Jefferson opined:
This practice of Judge Marshall, of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and very censurable. I recollect another instance, and the more particularly, perhaps, because it in some measure bore on myself. Among the midnight appointments of Mr. Adams, were commissions to some federal justices of the peace for Alexandria. These were signed and sealed by him, but not delivered. I found them on the table of the department of State, on my entrance into office, and I forbade their delivery. Marbury, named in one of them, applied to the Supreme Court for a mandamus to the Secretary of State, (Mr. Madison) to deliver the commission intended for him. The Court determined at once, that being an original process, they had no cognizance of it; and therefore the question before them was ended. But the Chief Justice went on to lay down what the law would be, had they jurisdiction of the case, to-wit: that they should command the delivery. The object was clearly to instruct any other court having the jurisdiction, what they should do if Marbury should apply to them. Besides the impropriety of this gratuitous interference, could anything exceed the perversion of law? . . . Yet this case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversion on its being merely an obiter dissertation of the Chief Justice.14
That letter, written in 1823, is a long lament of how the nationalist/Federalist party had already corrupted so much of what America had promised to be. This included the tyrannical power of her court system, for which even the Bill of Rights was no match:
The States supposed that by their tenth amendment, they had secured themselves against constructive powers. They were not lessoned yet by Cohen’s case, nor aware of the slipperiness of the eels of the law. I ask for no straining of words against the General Government, nor yet against the States. I believe the States can best govern our home concerns, and the General Government our foreign ones. I wish, therefore, to see maintained that wholesome distribution of powers established by the constitution for the limitation of both; and never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may more secretly he bought and sold as at market.15
These “constructive powers”—and the “slipperiness of the eels of the law”—Jefferson by this late age knew all too well. In his 1791 argument with Hamilton over the establishment of a national bank, Jefferson fought these powers with his “strict construction” view of the Constitution. He was joined by Madison against Hamilton, who argued that Congress had the power to do anything necessary as a means to its ends—and this included incorporating a national bank even though such an animal was nowhere mentioned as a Congressional power in the Constitution. Instead, Hamilton (and Marshall) would argue, such a means to an end was an implied power.
In this debate, though Madison sided with Jefferson on the constitutionality of the bank bill, his own writings came back to bite him. For he himself had written of the very “necessary and proper” clause in the Federalist Papers No. 44: “No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.” It was nothing less than this “original intent” of the Constitution which Hamilton and his party wished to leverage: for the necessary end of solidifying public credit, the necessary means of a national bank should be authorized. When Madison’s own words were recalled on the floor on Congress, the debate was essentially over.
The two sides in this debate reached their final battleground upon Washington’s desk in the personal written admonitions of Jefferson and Hamilton. The President sided with his Treasury Secretary and the Bank was born.
Thus prevailed the doctrine of “broad construction” and “implied powers” of the Constitution—a doctrine by which the rule of law becomes a wax nose wrung in the hands of activist judges. It was this same doctrine Marshall upheld, applied, and elucidated in McCulloch v. Maryland (1819) (another bank case!):
The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, so far as human prudence could insure, their beneficial execution. This could not be done, by confiding the choice of means to such narrow limits as not to leave it in the power of congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.
This, of course, places a tremendous premium on the opinions and decisions of the leadership—particularly the judges and those in positions to influence legislation, as was Hamilton. In short, a broad construction view of the Constitution immediately breeds elitism and cronyism.
The historian Prince notes the elitism of the judicial activists of the era: “The Federalist judges believed that talented, superior men like themselves, by virtue of their inherent stature, could stretch and dilute their judicial mandate with impunity in the best interests of the nation and its people as they saw those interests.”16
This is the exact same elite impulse by which every other politician, government official, senator, president, and judge has decided they too have the ability to reinterpret and bend the law as they see fit—from Hamilton and Marshall to the leftists judicial activists more recent decades. Indeed, it could be said that the “living constitution” view of partisans like Oliver Wendell Holmes, Jr., Louis Brandeis, Woodrow Wilson, Earle Warren, and the radicals of today is the direct logical outworking of the so-called “broad construction” view of Marshall and Hamilton (and Washington). Indeed, Marshall’s landmark decision in McCulloch provides one of the key evidences that modern liberal proponents of a living constitution use in their favor.
There is a fundamental problem with such elitism, however. What happens when elected—and especially unelected—leaders depart from traditional values and foundations of law? In such a case, you have not only judicial tyranny, but judicial destruction of society. And when such degeneration of legislative and especially judicial values is simultaneously entrusted with the power of broad construction and implied powers of the Constitution, you have a recipe for the decay of the whole civilization.
For this reason, the anti-federalists warned of undue trust placed in great leaders. As we have seen, Candidus foresaw a time when illustrious elites would not be available: “though this country is now blessed with a Washington, Franklin, Hancock and Adams. . . posterity may have reason to rue the day when their political welfare depends on the decision of men who may fill the places of these worthies.” Another, “An Old Whig” announced the same warning: “We ought not to repose all our liberty and all our happiness in the virtue of our future leaders. . . . Idolatry is the parent of errors in politics as well as religion;—and an implicit confidence in our rulers now, will be abused as much as implicit confidence in priests ever was in the days of superstition.” For this reason, he concluded, “If we perish in America, we shall have no better comfort than the same mortifying reflection, that we have been the cause of our own destruction.”17
True to the warnings, strange leaders did arise, new values did present themselves. Constitutional lawyer Herb Titus explains how in 1887, Oliver Wendell Holmes “overthrew a 600-year old tradition with a single paragraph.”18 The paragraph was from Holmes’ attack on The Common Law:
The life of law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy … even the prejudices which judges share with their fellow-men,… [primarily] determine the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries.… In order to know what it is, we must know what it has been, and what it tends to become.19
Holmes’ disciple, Louis Brandeis, replaced all former Supreme Court precedent with Holmes’ view in a 1938 decision, Eerie Railroad Co. v. Tompkins. In that case Brandeis proclaimed it a “fallacy” to assume there is any “transcendental body of law” by which federal or State courts could judge common cases. Instead, only the laws of State legislatures or opinions of State Supreme Courts should stand as binding. In other words, only the laws of men and State institutions are valid—there is no such thing as a transcendent (godly) law.20 Out of these same humanist-driven Court precedents has come Supreme Court protected abortion, easy-divorce, and homosexual marriage, just to name a few21
And thus, the very means used for making an allegedly strong, dependable nation under Marshall and Hamilton became the means for making an unstoppably progressive, liberal nation—a massive Welfare State built on a Warfare State—under Wilson, FDR, LBJ, etc.
Perhaps one of the most egregious offenses came with the so-called Reconstruction Amendments, particularly the 14th. While certainly aiming at some admirable goals, this Amendment essentially became the means for extending central government powers into every crevice of American life—under the guise of the “due process” clause. This includes Roe v. Wade, as we discussed earlier. The Amendment basically reversed the original intent of the Bill of Rights—which was to protect freedoms of State from encroachments or legislation by the National government. Now, the Supreme Court uses the 14th Amendment as a means of interpreting and enforcing upon the States, lower governments, and citizens a whole array of laws allegedly implied in the Bill of Right or Constitution. Thus what was intended as a control upon the central government has become the central government’s control of the people.
This judicial tyranny is so much the case that Raoul Berger could write of Government by Judiciary in 1977:
The Fourteenth Amendment is the case study par excellence of what Justice Harlan described as the Supreme Court’s “exercise of the amending power,” its continuing revising of the Constitution under the guise of interpretation.22
There is so much more we could say in this regard that we could write an entire book just on the subject of judicial tyranny in America. Indeed, whole books have been written.23 What we have written so far should be enough to see how the biblical ideal of courts described above has been absolutely treaded upon and obliterated by political partisanship from the earliest minutes of this Constitutional Republic. And the precedents of elitism and broad construction established by Hamilton and the Marshall Court became the tools of judicial activism which demolished the moral and spiritual foundations of our legal heritage. And these are just the political considerations; we have not even really touched upon corporate influences—except for the banks—which joined the political powers in perverting our Court systems.
The decline and degradation are thus clear. The question of course is, What can we do to reestablish freedom in our Courts? There are indeed some things we can do. We’ll discuss them in the next section.
Next section: Restoring Freedom in the Judiciary
- Storing, 4:241.(↩)
- Storing, 3:47.(↩)
- Storing, 2:442.(↩)
- Storing, 2:315.(↩)
- Carl E. Prince, The Federalists and the Origin of the U. S. Civil Service (New York: New York University Press, 1977), 242.(↩)
- Prince, 242–3.(↩)
- Prince, 244.(↩)
- Prince, 246.(↩)
- Prince, 248–9.(↩)
- Prince, 249.(↩)
- Prince, 250.(↩)
- Prince, 251–2.(↩)
- Prince, 252.(↩)
- Jefferson to Judge Johnson, June 12, 1823, The Works of Thomas Jefferson, ed. Paul Leicester Ford (New York and London: G. P. Putnam’s Sons, 1905), 12:256–7n.(↩)
- Jefferson to Judge Johnson, June 12, 1823, The Works of Thomas Jefferson, 12:258–9n.(↩)
- Prince, 252.(↩)
- Storing, 3:47–8.(↩)
- Herb Titus, The Common Law (Chapel Hill, NC: Professional Press, 1998), 5.(↩)
- Quoted in Herb Titus, The Common Law, 5. Emphasis Titus’s.(↩)
- See Titus, 6.(↩)
- Titus, 6–7.(↩)
- Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, MA: Harvard University Press, 1977), 1.(↩)
- See Carroll D. Kilgore, Judicial Tyranny: An Inquiry into the Integrity of the Judiciary published at the beginning of the Third Century of American Independence (Nashville, TN: Thomas Nelson, 1977); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, MA: Harvard University Press, 1977).(↩)