The Elly Report: Heritage & Faith in Action

The Judiciary: The Weakest Branch?

by William J. Gillmeister, PhD, and Mark W. Worthington, JD, LLM

James Madison, primary author of the US Constitution and 4th President, believed that the judiciary would be the weakest branch of the new government. Yet Thomas Jefferson saw the judiciary becoming a "despotic branch" should the other two branches fail to keep it in check. Which one is right? Both. The weakest became the strongest. To understand how this happened, we must follow judicial encroachments on the other two branches in two areas: the judiciary's authority in interpreting the constitution and the judiciary's policymaking function.

Madison proposed the three branches of government to the Constitutional Convention of 1787, finding support in Isaiah 33:22: "For the Lord is our judge, the Lord is our lawgiver, the Lord is our king; it is he who will save us." Under the terms of God's Covenant with His people, the Hebrews, God ruled. That is, all three branches of government were under the power of the one true and righteous God - otherwise known as a theocracy.

Madison and the other founders understood the significant difference between a theocracy and rule by men. They understood and firmly believed in the fall of mankind in the Garden of Eden and the implications of sinful man. They knew that if all three powers were vested in one authority, then that authority would quickly become corrupt. Each power had to be conferred in a single authority and each authority had to be able to protect itself from encroachment by the others. Madison and Hamilton in "The Federalist Papers," numbers 47 through 49, map this structure out. The U.S Constitution provides the checks and balances, such as impeachment, advice and consent, the veto of the president, and others. The Massachusetts Constitution is explicit in Article XXX of Part the First that no branch may exercise the powers of the others; this section also contains impeachment, veto, and similar powers.

Each branch has a duty to guard against the encroachment of another branch. In the 1803 US Supreme Court decision Marbury v. Madison, the Court asserted that "It is emphatically the province and duty of the judicial department to say what the law is." This assertion, however, was made to deny the Court the authority to act on a certain matter, and seems to have been understood as a rather unremarkable assertion of judicial authority regarding the meaning of the Constitution as it pertained to decisions made by the Court, and not as an assertion of judicial exclusivity and supremacy regarding Constitutional interpretation. Indeed, Chief Justice Marshall noted in that opinion that not only the Court, but the other two branches, were bound by the Constitution.

This view of the three branches (or "departments" in 18th century lingo) having concurrent responsibility to interpret the Constitution, each in its own sphere of authority, each subject to the checks and balances of the other two branches, has been powerfully articulated by many of the greats of our country. None other than Madison in the First Congress denied that "any one department draws from the constitution greater powers than another, in making out the limits of the powers of the several departments?" And Lincoln, in his First Inaugural Address, stated that "the people will have ceased to be their own rulers" 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."

Now at the same time, throughout the 19th Century, the US Supreme Court both confined itself to its allotted function of deciding "cases and controversies," and fairly attempted to follow the Constitution, only occasionally veering into policymaking by distorting the Constitution with pretextual decisions, as in Plessey v. Ferguson, the 1896 case that upheld state government imposition of Jim Crow on southern businesses. But the pace of unconstitutional distortion to effect judicial policy preferences picked up dramatically throughout the 20th century; the 2005 Kelo takings case in New London, Connecticut being merely the most recent and egregious example. The Court now routinely renders decisions that are no longer based on the Constitution but on any standard it sees fit - international law, national and international opinion (!), even mere pretext based on nothing but personal opinion and a desired result.

The Courts could not have gotten away with assuming a policymaking (even executive at times) role without asserting supremacy in its role as interpreter of the Constitution. And this it could not have done without the acquiescence of the other two branches. As we rolled into the 20th Century, an understanding of Marbury took hold that held that the US Supreme Court was the exclusive and supreme authority over the meaning of the Constitution. By the time the Court finally came out and said so in Cooper v. Aaron (1958), this interpretation of Marbury seemed so settled that those few who dared argue otherwise were ridiculed. The other branches passively let this happen. The President and the Congress have long alternately felt helpless to do anything about decisions they do not agree with, or glad at a result they did not have the political will or support to achieve, or simply relieved that the responsibility has been removed from them.

Over the past 20 years, however, academic scholarship has seen a strong, surprising, and welcome rejuvenation of the idea that all three branches each have an independent right and a duty to follow the Constitution, an independence made workable by our system of checks and balances. More recently, President Bush has made attempts to reign in the "despotic branch" and curtail policymaking by the judiciary by nominating contructionist judges who will make best efforts to interpret the Constitution according to what it says, not what the judge would like it to say. The Demagogues in the US Senate, however, continue to filibuster nominees, preventing the Senate from fulfilling its Constitutionally mandated role of giving or denying consent to the President's appointees. The House has failed to proceed with impeachment proceedings against any federal judge for using foreign laws on which to establish U.S. jurisprudence; a practice that arguably violates Clause 3, Article VI of the Constitution which binds judicial officers by oath or affirmation to support the Constitution.

At our state level, the Massachusetts Supreme Judicial Court decided that the laws of Massachusetts and even Common Law define marriage as between one man and one woman. In spite of that, four judges on that court decided that the very state constitution drafted by John Adams in 1780 did not permit this, and ordered the other two branches to conform state law. The State Constitution gives all authority over marriage to the legislature, the governor, and the governor's council, yet so powerful is the unquestioned understanding of Marbury articulated in Cooper that the Governor and Legislature believe they have no independent say in what the State Constitution means, but rather must bow to the whims of the SJC.

A small group of brave legislators is attempting to remove, by Bill of Address, the four justices who violated the Massachusetts Constitution. Unfortunately, few others have the fortitude to exercise their duty to check the state judiciary. At each turn and at each level of government, the executive and the legislative branches have failed in their duty, and thus, have overseen the creation of Jefferson's despotic branch.

One, just one, of the sad effects of the usurpation of power by a few unelected anointed, and the inexcusable acquiescence in it by our elected officials, is the driving of God out of the public square, despite the will of the People otherwise. James Madison once wrote that "the belief in a God All Powerful, wise, and good, is so essential to the moral order of the world and to the happiness of man, that arguments which enforce it cannot be drawn from too many sources nor adapted with too much solicitude to the different characters and capacities impressed with it." Federalist Patriot, No. 05-19.

President John Adams wrote: "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." The judiciary's driving of God from the public square undermines the "moral order of the world and…the happiness of man," (Madison) and our very ability to survive as a nation.

I conclude, then, that at present we may consider that the weakest branch is a fourth not yet mentioned - We the People. We must demand that our elected officials more forcefully perform their duty to restore judicial integrity. Our freedom, the ideals of western civilization, our very survival, depend upon it.

William J. Gillmeister is a Ph.D. Agricultural Economist who performs policy analysis on state and federal agricultural issues, is a school committee member in Brookfield, MA, and a devoted family man.

Mark Worthington is a Worcester attorney who specializes in estate planning and elder law; he holds an LLM in Taxation. He is a Certified Elder Law Attorney and an Adjunct Professor in the Graduate Program in Estate Planning and Elder Law at Western New England College Law School. He is a devout Christian, loving husband and father, and avid fan of CS Lewis and William F Buckley.