Judicial activism found its opening with this case—the un-checkable power to create new laws by twisting or ignoring the Constitution to mean something the Founders never intended it to mean.
CASE: Martin vs. Hunter’s Lessee (1816)
PRECEDENT: The Court declared itself the supreme authority.
STORY: At issue was a State’s interpretation of a federal law. The Court refused the States any authority to interpret federal law. This case was good because it helped unify the new nation under a single, unified, common understanding. It was bad because it eroded State sovereignty, making it tough for the States to challenge federal laws that were bad or unfair or conflicted with State law. It contributed to the loss of State’s rights and State sovereignty.
CASE: Gibbons vs. Ogden (1824)
PRECEDENT: Unleashed power to regulate almost everything.
STORY: The case involved New York giving Robert Fulton 100 percent control of steamboat operations along the Hudson so nobody else could compete. The Supreme Court declared it unconstitutional, saying that competing steamboat operators could engage in trade along a coast—it was an interstate commerce activity. This was later interpreted to mean Congress could also regulate the actual steamboat itself, the means of its construction, all safety issues, loading docks, fares, and just about everything else. This wiped out a State’s right to set any of those parameters, clearly a violation of States rights to control their own commerce.
CASE: United States vs. Butler (1936)
PRECEDENT: Removed restrictions on taxing and spending, defined “general welfare” as a blank check.
STORY: Ever since the Constitution had been ratified, Hamilton and Madison had argued over the actual meaning of the Constitution’s list of enumerated powers granted to Congress in Article 1, sections 8 and 9. Hamilton said the list was mere suggestion, and Madison disagreed, stating unequivocally that there is a strong limit for what Congress may tax and spend.
In the Butler case, the Supreme Court settled the debate by siding with Hamilton, saying Congress could raise taxes for anything it deemed important for “the general welfare.” Did that change things? Yes. In 1936, the federal budget was under $6 billion. By 1980, it had grown to about $600 billion, and now pushes past $4 trillion, and 30 times that amount in national obligations. The Butler case turned America’s economic power on its head. Today, the burden of that foolishness is being felt across the country and worldwide.
CASE: Everson vs. Board of Education (1947)
PRECEDENT: Forced Bill of Rights onto the individual States.
STORY: This case involved State legal support for children attending private religious schools in New Jersey. The Court ruled the practice was unconstitutional, citing “Congress shall make no law respecting an establishment of religion.” This case gave the federal government jurisdiction over States if their laws conflicted with federal law. It was the beginning of the removal of religion from America’s public institutions. Later on, the courts would stand atop this ruling to stomp all over States’ rights by forcing all public schools to eliminate prayer, the Bible, and God from their curriculum and in-school activities.
CASE: Roe vs. Wade (1973)
PRECEDENT: The Court turns State issue into a federal issue.
STORY: Abortion is an enormously complex issue that has consumed billions of words across millions of pages. In Roe vs. Wade, the court mandated that abortion was a legal medical procedure in America, and available for the asking.
The very most the Court should have done was to turn the issue over to the States where it belonged. The “Jane Roe” in the lawsuit, Norma McCorvey, has since regretted her role and petitioned the court to re-hear the case based on evidence that abortion also harms the mother.408 The court refused.
CASE: Garcia vs. San Antonio Metro. Transit Authority (1985)
PRECEDENT: Destroyed Tenth Amendment.
STORY: The Tenth Amendment reserves to the States all the powers not specifically granted to the federal government. In National League of Cities vs. Usery (1976), the Court declared that Congress had no authority under the Tenth Amendment to dictate wages and overtime rules for local governments. In Garcia (1985), the Court overruled itself and said that Congress could indeed dictate on the local level.
At issue were volunteer government employees, such as policemen volunteering as ambulance drivers, and teachers volunteering for extra duties for their students. The Court ruled that Congress could indeed force the municipalities to pay wages. The point of volunteering was purely to help local governments short on cash to improve their communities. In violation of the Tenth Amendment, the Court said Congress could control those activities. The Court mandated that either the 80,000 employees from State and local governments go without this extra volunteer help, or they must pay wages to get it.
CASE: Kelo vs. New London (2005)
PRECEDENT: Destroyed Fifth Amendment and private property.
STORY: This controversial case allowed the transfer of private property from its rightful owner to another private owner whose purposes promised an increase in jobs and tax revenue. The decision destroyed the distinction between private and public use of property. The dissenting justices declared that this action amended the Constitution by erasing from the Fifth Amendment the words “for public use” and replacing them with “for whatever use the government decides.”
CASE: “ObamaCare,” national health care (2012)
PRECEDENT: The Court expanded congressional powers beyond constitutional boundaries, again.
STORY: In its most damaging swipe against freedom in 100 years, the Supreme Court upheld the individual mandate in President Obama’s national health care program, giving Congress authority to force Americans to buy health insurance under Congress’s power to “lay and collect taxes.” In a carefully crafted slight of hand, the Court said the government could not order people to buy health insurance, but it could tax those who didn’t. The Court also said the federal government could not force States to expand Medicaid to cover millions that were uninsured. It rejected Congress’s claim it could force health care as an enumerated right in the Commerce Clause.
In 2008, Robert A. Levy and William Mellor published a list of a dozen other cases where the Supreme Court409 ...
Radically expanded government—Helvering vs. Davis (1937), and, United States vs. Butler (1936).
Allowed expanding powers of regulation—Wickard vs. Filburn 1942, and, Gonzales vs. Raich 2005.
Destroyed the sanctity of private contracts—Home Building & Loan Association vs. Blaisdell 1934, and, Gold Clase Cases 1935.
Gave law-making power to government agencies, bypassing the constitutional law-making authority of Congress—Whitman vs. American Trucking Associations, Inc. 2001.
Eroded freedom of speech—McConnell vs. Federal Election Commission 2003, and, Buckley vs. Valeo 1976.
Curtailed gun-owners’ rights and other civil liberties all in the name of national security—United States vs. Miller 1939; Korematsu vs. United States 1944.
Forced people to surrender private property without the opportunity to appeal the judgment in a court of law—Bennis vs. Michigan 1996.
Infringed on the right to earn an honest living—United States vs. Carolene Products 1938, and, Nebbia vs. New York 1934.
Violated equal protection under the law for reasons of race—Grutter vs. Bollinger 2003, and, Regents of the University of California vs. Bakke 1978.
Protected the rights of unions to destroy private property, intimidate, and commit violence during a strike—See “Revolutionary: Union Organizers” in Chapter 58).Jefferson Offers Better Direction
Thomas Jefferson had plenty to say about the tyranny of the Court, and proposed some solutions. One was to remove life-time terms and make them earn reappointment by the president every 4-6 years, with approval from both houses.41
0 Another was to overturn a bad Court decision by calling a constitutional convention. That provision from Article V allows the States to bypass all three branches of government, and with a 2/3rds majority vote, set things right again. By the time Jefferson became president, the Court was already taking power it wasn’t granted, and he sent stern warnings about that unconstitutional usurpation.411
“The judiciary branch is the instrument which, working like gravity, without intermission, is to press us at last into one consolidated mass. ...If Congress fails to shield the States from dangers so palpable and so imminent, the States must shield themselves, and meet the invader [the judiciary] foot to foot.” How else would Jefferson propose the States shield themselves except with a constitutional convention or an Amendment returning power to the States?412
As president, Jefferson expressed his concerns about the Judiciary in a letter to Abigail Adams:
“You seem to think it devolved on the judges to decide on the validity of the sedition law, but nothing in the Constitution has given them a right to decide for the executive, more than to the executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them.
“The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because the power was placed in their hands by the Constitution.
“But the executives, believing the law to be unconstitutional, were bound to remit [refrain] the execution of it, because that power has been confided to them by the Constitution. That instrument meant that its coordinate branches should be checks on each other.
“But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action, but for the legislature an executive also in their spheres, would make a judiciary a despotic branch.”413
Jefferson on Marbury vs. Madison
Jefferson objected to the Court taking upon itself unbounded powers of decision, and wished to abolish the precedent the Court established in Marbury vs. Madison—
“The Constitution intended that the three great branches of the government should be coordinate, and independent of each other,” Jefferson wrote. “As to acts, therefore, which are to be done by either, it has given no control to another branch.... It did not intend to give the judiciary ... control over the executive.... I have long wished for a proper occasion to have the gratuitous opinion in Marbury vs. Madison brought before the public, and denounced as not law.”414
Jefferson on Corruption of Justices
In a letter to William Charles Jarvis in 1820, Jefferson pointed out that Court justices are no more immune from corruption than anyone else, and with life-long appointments, there is little incentive to stay responsible to the people and the Constitution:
“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.”415
Jefferson on Unconstitutional decisions
Continuing in his letter to William Charles Jarvis, Jefferson points out that all others in the federal government are responsible to those who elected them. But not the Court, and this is dangerous to freedom:
“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; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”416
“If ever this vast country is brought under a single government, it will be one of the most extensive corruption, indifferent and incapable of a wholesome care over so wide a spread of surface.”417
Jefferson on Original Intent
Putting the Court in a position to pronounce what the Constitution meant was not what the Founders intended. They wanted the Court to apply the Constitution, not interpret or twist its meaning. The Founders wanted the justices to be pro-Constitution, not anti. As president, Jefferson wrote:
“On every question of construction, [let us] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” 418
Constitution Not a Blank Paper
Jefferson declared that the Constitution is not an arbitrary set of flexible rules. Had America adhered to that counsel, how many looming problems might never have developed? Said Jefferson:
“When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”419
An Unchecked Judiciary Will Destroy Democracy
Jefferson believed the Supreme Court and its lesser offices posed the greatest danger to liberty. He said,
“...The germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government or another, and will become as venal and oppressive as the government from which we separated.”420
Making the People Weak
While the Courts, the people, and economic experimenters tried new opportunities in the revolutionary 1800s, a more subtle and dangerous manifestation of socialism was quietly eating into the core of national stability. It was a failure system that one day would embrace all seven pillars and all the world’s nations. It carried the moniker state welfare. But first, before that final temptation towards power could be tried, the people had to be weakened—
* * *
406 A summary of the Founders’ concerns may be found in Skousen, The Making of America, pp. 569-581.
407 See Edwin S. Corwin, editor, The Constitution of the United States, Annotated, Library of Congress, 1953.
408 “Court rejects challenge to abortion ruling,” Associated Press, February 22, 2005.
409 Robert A. Levy, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, 2008.
410 Jefferson to James Pleasants, December 26, 1821.,
411 See Jefferson to William Johnson, June 12, 1823 (“The Chief Justice says, ‘there must be an ultimate arbiter somewhere.’” “True,” says Jefferson, but “the ultimate arbiter is the people” who may meet in a constitutional convention [Article V] and override the Judiciary and “let them decide to which they meant to give an authority..
.”); and, to Nathaniel Macon, August 19, 1821 (If the Judiciary rule unconstitutionally, and the other two branches “relapse into the same heresies,” impeach them all, an act made possible by Article V, a convention of the states), The Works of Thomas Jefferson, Vol. 12, Correspondence and Papers 1816-1826.
412 Jefferson to Archibald Tweat.
413 Bergh, 11:50.
414 Bergh, 11:50, p. 213.
415 Ibid., p. 277.
416 Ibid.
417 Jefferson to W. T. Barry, August, 4, 1822.
418 Bergh 15:449; See also Bergh 10:248.
419 Bergh, 10:418.
420 Thomas Jefferson letter to C. Hammond, 1821.
Chapter 64: Early Progressive Milestones
For a hundred years, American liberty survived the buffeting of usurpers and tyrants. Could it survive another century against the new progressives of the 1900s?
When Theodore Roosevelt became president in 1901, he started decades of destruction of constitutional restraints. This grab for power was supported by the Supreme Court, and unleashed all manner of avoidable problems. This episode shows how the establishment of Ruler’s Law was streamlined with the installation of an all-powerful ruler.
The Problem of Too Much Success?
America’s amazing growth during the industrial revolution was racing white-hot at the turn of the century—with more to come during the “roaring twenties.” For the general public in the early 1900s, all they read and heard about were tycoons taking over businesses, finances, and labor practices. Popular resentment began to spread. People wanted some kind of national police power to step in and get things under control.
The Naked Socialist Page 36