Common Myth 2

Supreme Court

Myth No. 2: The Supreme Court is the final authority as to the meaning of the Constitution.

The Supreme Court, like taxes, government and political parties, is a necessary evil.  One of the purposes of government as noted in the preamble to the Constitution is to “insure domestic tranquility”.  This can only be accomplished through the rule of law that  allows us to enjoy an ordered society with our liberties protected from encroachment by others. A Supreme Court is necessary as the final arbiter of those laws. However, like taxes, government, and political parties, the Supreme Court must be kept in check or else it gradually expands its powers to destroy the very liberties it was empowered to protect.

Since 1803, the Supreme Court has acted as the final arbiter on questions concerning the constitutionality of laws passed by Congress.  This function of the Court is referred to as “judicial review”. The doctrine of judicial review is derived from Article 3.2.1 and 3.2.10 of the Constitution.

Not all the Founders agreed with this application of the Constitution, however. Thomas Jefferson in a letter to Judge Roane, September 6, 1819 made this observation concerning the doctrine of judicial review,

    “….The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes.  Independence can be trusted no where but with the people in mass….”

Jefferson again warned of the dangers of this doctrine in a later letter to William C Jarvis in 1820.

    “….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…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 erected no such tribunal, knowing that to whatever hands confided, with the corruption of time and party, its members would become despots….”


Nevertheless, the doctrine has been firmly established in constitutional law by time and is not likely to be reversed.  As Jefferson observed, Judges are mortal like the rest of us and subject to the same passions and prejudices.  The result of this human characteristic is the emergence of “judicial activism” which has become more prevalent in our judicial system as time goes on. Judicial activism occurs when a court finds meaning in words like “liberty” and phrases like “equal protection” that was never intended by the Framers. The court then uses these newfound meanings to impose their own political, moral and social views on the people.

The Constitution provides a number of remedies for judicial activism, often referred to as “legislating from the bench”, but for political reasons, they are seldom used.  The first remedy is the power of impeachment found in Article II, Section 4.  Impeachment does not correct the infraction, but it does remove the judge or Justice from office.  In our 200+ year history, only thirteen federal judges have been impeached and only one Justice of the Supreme Court.  Justice Samuel Chase was impeached by the house in 1804 but later acquitted by the Senate.

The power of impeachment was considered by the Framers to be a sufficient check on the actions of the Supreme Court.  Alexander Hamilton expresses this view in Federalist No. 81.

    “….It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom.  Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.  This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force.  And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachment…would give to that body [Congress] upon the members of the judicial department.

    This is alone a complete security.  There never can be danger that judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations….”


The means for correcting misinterpretations of the Constitution by the Supreme Court is also provided for in Article V establishing the process for constitutional amendments.  The amendment process can be used to change the Constitution, correcting or nullifying arbitrary decisions by the Court.  However this method has been used only four times in our history.  The Amendments that specifically overturned prior Supreme Court rulings were the twelfth, thirteenthfourteenth, sixteenth and the twenty-sixth.

In addition to these remedies, Congress has the power to restrict the jurisdiction of the Supreme Court under Article 3.2.10 concerning any matter of law that may be brought before it.  There are three reasons why the courts have been allowed to, as Jefferson says, “reduce the Constitution to a mere thing of wax in the hands of the judiciary”.  First, there is an appalling lack of knowledge on the part of our elected officials concerning the content of the Constitution.  Second, liberals have successfully used judicial activism to establish laws they could never get through the legislative process, therefore they have no interest in reining in the courts. Third, the American people and their elected representatives have been conditioned to accept the decisions of the Supreme Court as the final word in Constitutional interpretation.

For these reasons the defense of the Constitution is left up to “we the people”.  We are the final judge of its meaning.  It is up to us to make sure that the representatives we elect to office will take their oath of office seriously and use the Constitutional remedies provided to exercise the necessary checks on the judicial system.

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