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.