This article is taken from one I blogged on July 15, 2012 when I was running for the Supreme Court of Washington. My platform at the time was the court’s weren’t working and there was a need for change. I think the need for change has grown even stronger since then.
Now the whole country knows a majority of our land records are falsified, except for the courts. Something is wrong, when the courts can simply ignore the truth.
Anyway, this is an article i wrote a couple years ago challenging the basis of judicial review. Courts should not be given such power unless they make more right decisions than wrong ones. Our’s don’t any more.
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We are taught that our nation’s Constitution sets forth a government based on checks and balances. But the United States Supreme Court decided in Marbury v Madison that the judicial department gets the final say over what the Constitution means. Chief Justice Marshall wrote: “It is emphatically the province and duty of the Judicial Department to say what the law is.” But is it?
The Constitution does not specifically say this. Marbury only decided this as precedent. Precedent can and should be overruled when it becomes harmful.
My judicial and bar association critics appear to believe that any thoughtful discussion of the present legitimacy of judicial review is heresy. This dogmatic position suggests my critics are not scholars. Just as the Court overruled its previous limitation on corporate spending in elections by its decision in Citizens United, the Supreme Court can and should overrule Marbury if the evidence shows the judicial department has become a part of the political branches of our government.
My views in this regard are not particularly novel. Alexander Hamilton stated in Federalist Paper No. 78 (http://www.constitution.org/fed/federa78.htm , which is regarded as the central document supporting judicial review: “I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers’.” It is difficult to see how United States Supreme Court remained separate from the executive branch when it anointed George W. Bush president.
In arguing that the judicial department should have the final say with regard to the meaning of the Constitution Hamilton assumed in 1776 it would be the weakest branch of government. In this regard, Hamilton stated:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; … 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.
This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; …”
In the twenty-first century the judicial branch is not the weakest branch of our government. Nor is there any danger of courts being overpowered or awed by coordinate branches. Indeed, the judicial department has become so comfortable in its assumed role as the ultimate ruler of our nation that it appears to change precedent for political reasons. Such conduct is more characteristic of an oligarchy than the democratic republic our nation was intended to be. See Justice Stevens dissent in Citizens United.
Thomas Jefferson, our third President, was so disturbed by the concept of judicial review he commented in a letter written to author William Jarvis in 1820 that:
You seem … to consider the judges as the ultimate arbiters of all constitutional questions; 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 power [is] 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.
Another President, Abraham Lincoln, commented after the Supreme Court next exercised the power of judicial review in Dred Scott v Sanford that
[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. …
Now as the power of judicial review is increasingly utilized to ultimately decide the most important political issues of our day, it is certainly appropriate to consider whether this nine person panel acts more like a beneficent philosopher king or an oligarchy for the privileged. And the answer does matter. Because the final check on the judicial branch in our Constitutional system is you and me and the other people in this country.
This explains why judges and lawyers happy with the present system are circling up the wagons and aiming their guns at me.
Just this year after Chief Justice Robert’s decision in National Federation of Independent Businesses v Sebelius, Lawrence Tribe, one of Robert’s law school professors, observed:
As Alexander Hamilton famously said in Federalist No. 78, the Supreme Court has no control over “either the sword or the purse; no direction either of the strength or of the wealth of the society.” Its only real power is the power of reason and persuasion, and it is the public that is the ultimate judge of what counts as persuasive. The court depends on its public legitimacy for the efficacy of its decisions.
Tribe concludes with what should be obvious to my judicial and bar association critics:
That court exists in a system of government that depends deeply on a publicly trusted and politically independent judicial branch to define and police the boundaries of that system’s architecture, and to protect the rights of those that the system itself (or temporary majorities of the electorate) might otherwise oppress.
I am not willing to stand down on my challenges to the Court in these times. I want the judicial department and our entire government to know that we, the people, are the masters of their fate and our own destiny. We will not allow the judiciary to rule us an oligarchy. But many believe that is precisely what is going on.
Constitutional lawyer and author John V. Whitehead speaks for many when he writes:
[T]he system of government under which we labor today is a government of the elites, by the bureaucrats and for the corporations. This political enterprise that passes itself off as a democracy is in reality little more than a “pay to play” banana republic, a plutocracy run by a powerful and corrupt oligarchy from the corporate, military and political sectors.
Although lawyers and judges may not like it, we must learn from history lest we repeat it. As we force people en masse from their homes to line the pockets of the rich, ponder this:
In case No. 3 of the Nuremberg Trials 16 defendants who were former German judges, prosecutors or officials in the Reich Ministry of Justice, were found guilty of committing war crimes and crimes against humanity. The tribunal found, in effect, that while on paper the rights established by the Weimar Constitution were retained by the Nazis, there was a progressive degeneration of the judicial system under Nazi rule and that substantially every principle of justice enumerated by prior German law was violated by the Hitler regime. Seehttp://law2.umkc.edu/faculty/projects/ftrials/nuremberg/Alstoetter.htm
We, the people, the source of all governmental power need to be wary that the same thing does not happen here. Judicial review is a slippery slope which at the end of the slide results in nine persons running our government for as long as they live.