Back When There Were THREE Branches of Government (Not to Mention “The States Respectively, or the People)
Americans are ruled by a lawyereaucracy. Most of our “citizen legislature” (i.e. Congress) is comprised of lawyers; executive branch agencies are crawling with them; and the federal judiciary is dominated by left-wing politicians posing as objective “judges.” This last point was demonstrated once again when, after President Trump issued his revised “travel ban” executive order an old law school pal of Obama’s from Hawaii, who is now an Obama-nominated federal judge, issued another one of those lawyerly Decrees From Upon High declaring the executive order null and void everywhere – not just in Hawaii.
This is a very old story: Congress passes a law that the hardcore left-wing lawyereaucracy disapproves of; a leftist lawyer cherry picks a left-wing extremist judge somewhere, anywhere, to issue a decree invalidating Congress; and Congress (and everyone else) genuflects to the leftist lawyereaucracy’s wishes.
It wasn’t always that way in America. As “progressive” icon Woodrow Wilson wrote triumphantly in his book, Constitutional Government in the United States (p. 178), “The War between the States established . . . this principle, that the federal government is, through its courts, the final judge of its own powers.” No longer could the people of the “free and independent states,” as they are called in the Declaration of Independence, nullify a federal law that they thought was unconstitutional, as was very common prior to 1865. No longer could a president or Congress even challenge the constitutional monopoly of the lawyereaucracy.
Prior to 1865 there were many instances of presidents, Congress, and the people of the free, independent, and sovereign states simply ignoring the opinions of the black-robed deities of the Supreme Court, under the quaint belief that there are three branches of government, not just the judiciary branch, and on top of that, the people of the states also had and equal voice, as articulated in the Tenth Amendment to the Constitution. New England states nullified the Jefferson/Madison trade embargo; Wisconsin and other states nullified the federal Fugitive Slave Act; Jefferson and Madison wrote articles of nullification regarding the suppression of free speech under the Sedition Act (the Virginia and Kentucky Resolves of 1798); South Carolina nullified the 1828 Tariff of Abominations; the New England states relied on the idea of state interposition or nullification to not participate in the War of 1812; and so on.
The words “judicial review” do not appear in the U.S. Constitution. This was an invention of the Hamiltonian lawyer John Marshall when he was the chief justice of the U.S. Judicial review existed, but it was not considered to be any more important than executive branch review, congressional review, or the review of the constitutionality of federal laws by the people of the free and independent states. Perhaps the most famous example of this truth is how President Andrew Jackson responded to Marshall’s personal opinion that a bank run by politicians out of the nation’s capital, primarily for the benefit of politically-connected private stockholders in the government-subsidized bank, was constitutional. In his veto message regarding the re-chartering of the Second Bank of the United States
(http://avalon.law.yale.edu/19th_century/ajveto01.asp) in 1832, Jackson wrote that “To this conclusion I can not assent.” The states were opposed to the existence of such a bank by a four-to-one margin, he pointed out, and that carries more weight than the opinion of one man, John Marshall.
The opinions of the Supreme Court “ought not to control the coordinate authorities of this Government,” he wrote. Furthermore:
The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.
The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities . . .
If President Trump were to begin defying the left-wing lawereaucracy, beginning with the absurd and ridiculously –worded ruling by Obama’s Hawaiian pal, he would be in sync with the man he looks up to as his presidential role model, Andrew Jackson.
Thomas J. DiLorenzo [send him mail] is professor of economics at Loyola University Maryland and the author of The Real Lincoln; How Capitalism Saved America; Lincoln Unmasked; Hamilton’s Curse; Organized Crime: The Unvarnished Truth About Government; and most recently, The Problem With Socialism.