Judicial Supremacy: Not in the U.S. Constitution, Not the Intention of the Founding Fathers

First up are a couple of excerpts and a list of links to articles worth reading on the topic of judicial supremacy

Below that are just a few links to articles on the topic of the “Originalism-Living Constitutionalism” debate.

The debate over judicial supremacy is actually not complicated: The Founding Fathers created three branches of the federal government — and the Supreme Court is the highest court in the land, not the highest governing body.

You seem to consider the judges 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 … and their power are the more dangerous as they are in office for life, and are 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…. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves…. — Thomas Jefferson

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If “the judiciary is the last resort in relation to the other departments of the government,” … , then indeed is our Constitution a complete felo de so. … 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 may please (Living Constitution). 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 nowhere but with the people in mass. They are inherently independent of all but moral law… — Thomas Jefferson

Court as Supreme Is Antithetical to Founders’ Vision by Louis DeBroux
The Founders saw the judiciary as the weakest of the three branches, called upon to settle legal disputes, but without power to exert its will as could the elected branches. In 1788, writing in Federalist No. 78, Alexander Hamilton described the judiciary as the “least dangerous” branch, arguing that the executive “holds the sword” and the legislative “commands the purse,” but the judiciary “has no influence over either the sword or the purse, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment.”

Trump Heroically Defies a Lawless Supreme Court by Matthew Vadum
The court’s ruling on young illegals is an abomination that must not stand… President Donald Trump is quietly turning a stinging defeat at the Supreme Court over an illegal amnesty for hundreds of thousands of young illegal aliens into what could end up being a victory for the Constitution and the rule of law.

Time to End the Tyranny of District Court Judges’ Nationwide Injunctions by GianCarlo Canaparo
Question: What is the difference between God and a federal judge? Answer: God knows that He isn’t a federal judge.

It’s Time to Restore Our Judicial Branch by Lathan Watts
Sadly, many judges in America act like policymakers instead of working as impartial arbiters of our nation’s laws. The result is an unnecessary politicization of the judicial branch. This trend needs to stop.

The Supreme Court Is Not The Final Say On The Constitution by Benjamin R. Dierker
The judiciary’s rulings are not the supreme law of the land, even rulings from the Supreme Court. The judiciary is not the only or even final arbiter on the Constitution. Americans have been told a lie about the constitutional balance of power. Despite activist assertions to the contrary, the Supreme Court is not a supreme constitutional council with the sole and final say on legal matters. We have accepted a larger than life picture of the judiciary, and it is slowly destroying individual liberty and the constitutional order laid down by the founders. The Constitution outlines the role of the courts, but for some time they have been operating beyond their proper function.

Fix the Supreme Court by Following the Constitution by Daniel Greenfield
The good news is that while judges may be partisan, the Constitution isn’t. When judges follow the law, instead of making up their own laws, then their partisan tilt doesn’t really matter. However, when judges invent their own laws, they undermine representative government and the rule of law. “To consider the judges as the ultimate arbiters of all constitutional questions,” Abraham Lincoln said, quoting Thomas Jefferson during the Lincoln-Douglas debates, would be “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” The Constitution is not purely the legacy of the Court, for it to reshape, transform and even usurp, as it sees fit. It belongs to all the three branches of government and to the people of the United States. The Court without the Constitution will always be an oligarchy whose despotism is up for grabs.

Reining in the Activist Federal Judiciary by Bruce Thornton
How we can roll back the progressive assaults on our political liberty.

Against Judicial Supremacy: The Founders and the Limits on the Courts by Carson Holloway
Americans’ contemporary understanding of judicial power is inconsistent with the argument put forward by Hamilton and Madison in The Federalist. Although The Federalist affirms the power of judicial review—and hence the role of the judiciary as a check on the other branches—it does not present this as the first or most important function of the courts. Moreover, The Federalist does not support the vast implications of judicial review as including a power to decide the great moral issues of the times and to adjust the Constitution to trends in public opinion. Finally, The Federalist lends no aid to the belief that the Supreme Court is the ultimate interpreter of constitutional meaning, unanswerable for its interpretations to any authority but itself.

A Clash of Judicial Visions by John Yoo and James C. Phillips
Defining the proper role of the Supreme Court in our constitutional system.
National Review Editor’s Note: [This article] is the first in a series of articles in which Mr. Yoo and Mr. Phillips will lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track. (To read the others, visit this page. You may have to click on a link to get to more article titles.)

Kavanaugh Will Not Fix The Problem Of Judicial Supremacy by Ryan Walters
Even if Brett Kavanaugh turns out to be a tremendous originalist justice, the courts still represent a major threat to the republic.

The Supreme Court Has Been Making Policy by Jay Cost
It’s not what the Founders intended, and it’s riling up and dividing Americans.

Warnings: Concentrated Power of Despotic Establishment from American Minute with Bill Federer

Draining the Judicial Swamp by Selwyn Duke
The Supreme Court was only meant to be supreme among courts. 

Time to Rescue the Rule of Law from a Judicial Aristocracy by Mat Staver and Keith Fournier

Legal Scholars Rise Up Against the Supreme Court’s Judicial Despotism by Dr. Michael Brown

Legal Scholars Urge Disobedience to Gay Marriage Ruling by Austin Ruse

Excerpts from ‘How the Court Became Supreme’ (Part 1) by Robert Lowry Clinton

Excerpts from ‘How the Court Became Supreme’ (Part 2) by Robert Lowry Clinton

How the Court Became Supreme by Robert Lowry Clinton

Ask the Candidates What They Will Do About the Supreme Court by James W. Lucas

The Myth of Judicial Supremacy by By Clarke D. Forsythe

Why Judicial Supremacy Isn’t Compatible with Constitutional Supremacy by Ramesh Ponnuru

Why the Supreme Court is Not Supreme by Matt Barber

The Myth of Judicial Supremacy by Paul Moreno

The Unsoundness of Judicial Supremacy by Paul R. DeHart

The Rocky Road to Ending Judicial Tyranny by Richard Winchester

SCOTUScare, SCOTUSsexuality, and SCOTUSocracy by Michael L. Grable

Fighting Supreme Court Arrogance by Bruce Walker

Obergefell Threatens U.S. Democracy by Deseret News

Judicial Supremacy Has Its Limits by John Yoo

Why Not One Governor is Qualified to be President: Perhaps it needn’t be stated, but the power of judicial review isn’t in the Constitution. By Selwyn Duke

Huckabee Understands The Constitution Like Those Who Wrote It: To say that the Supreme Court is the final arbiter of the U.S. Constitution overthrows constitutionalism itself. By Paul DeHart

Court and Constitution–The Argument Against Judicial Supremacy: The GOP often concedes too much to the courts–a notion of judicial supremacy at odds with the best of the Republican Party’s history. By David Corbin and Matt Parks

Constitutional Conservatism Rejects Judicial Supremacy: Conservatives should defend the Constitution and the rule of law, but they should not defend judicial supremacy. The Constitution—not the Supreme Court—is our country’s highest authority. By Carson Holloway

Judicial Supremacy and Federalism: A Closer Look at Danforth and Moore: The doctrine of ‘‘judicial supremacy’’ is nothing new. James Madison was skeptical about the Supreme Court’s role as the ultimate arbiter of matters of federal constitutional interpretation, stating initially that judicial supremacy ‘‘was never intended and can never be proper.’’ By Edward J. Loya Jr.

Constitutional Disorder in the Era of Judicial Supremacy–The Founders’ Understanding of the Court: Judicial supremacy is inimical to the separation of powers, to republicanism, and even to constitutionalism and the rule of law. By Matthew J. Franck

Elitism and Judicial Supremacy: Faced with an increasingly democratic political system, American elites have turned to the courts as an alternate means of enacting their political and constitutional agenda. By Robert Lowry Clinton

The Marbury Myth: John Marshall’s famous decision does not support judicial supremacy. By Robert Lowry Clinton

Judicial Supremacy and the Constitution: We need to reclaim the Constitution from the Supreme Court. By Robert Lowry Clinton

The Myth of Marbury v Madison by TJ Martinel

Judicial Supremacy: How Did this Far-Fetched Claim Originate? by Louis Fischer

Gingrich, Desegregation, and Judicial Supremacy: Those who oppose judicial supremacy follow in the footsteps of Abraham Lincoln himself. By Joel Alicea

What Is The Proper Role of the Courts? From the Heritage Foundation

How to Stop Judicial Supremacists From Eagle Forum

No, It Is Not the Law of the Land by Daniel Horowitz

Lincoln on Judicial Despostism by Robert P. George

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The Troubling Stakes of the Originalism-Living Constitutionalism Debate by S. Adam Seagrave
Any defense of constitutional originalism depends on accepting the principles of natural law and natural rights on which the Constitution was founded. Unfortunately, these principles no longer have meaning for most judges, politicians, and ordinary citizens today—which has troubling implications for the future of our republic.

The Living Constitution Revisited by Carson Holloway
William Brennan’s vision of a living constitution continues to dominate contemporary constitutional interpretation, in spite of its troubling inconsistencies.

Originalism and Judicial Restraint by Gregory J. Sullivan
Originalism must guard against an overconfident reliance on history. Restraint and judicial caution are needed in an age of judicial overreaching.

Even more articles on both topics can before found perusing the Judicial Branch and U.S. Constitution tags on this website.

Image credit: www.rightsofthepeople.com.