TAC: The Judicial Supremacy Lie

 

The Judicial Supremacy Lie Lysander Spooner vs the Supreme Court  (article | podcast)

“An unconstitutional judicial decision is no more binding than an unconstitutional legislative enactment.” That’s how Lysander Spooner rejected the dangerous doctrine of judicial supremacy - the idea that a judicial opinion becomes law simply because judges say so. Spooner’s warning wasn’t new. It echoed the Founders and reinforced a principle that once formed the foundation of constitutional understanding: The Constitution is supreme - not opinions about the constitution from anyone. But today, this principle has been almost entirely forgotten - or worse, ignored. What is Judicial Supremacy? Judicial supremacy is the idea that the Constitution means whatever the courts - especially the Supreme Court - say it means, until they change their minds. It places judicial opinions above the President, Congress, the states, the people - and even the Constitution itself. But as Spooner wrote in A Defence for Fugitive Slaves (1850): “The Constitution is the fundamental, the paramount law, and all officers of the government are sworn to support it.” In short, judicial opinions carry no special weight unless they’re in line with the Constitution. “A judicial decision, as such, has therefore no intrinsic authority at all; its constitutional authority rests wholly upon its being in accordance with the constitution.” This means Supreme Court decisions aren’t automatically binding. Judges are just as capable of violating the Constitution as Congress or the President. “There is not a syllable in the constitution that makes a decision of the judiciary - of its own force, and without regard to its correctness - binding upon anybody, either upon the executive, or the people.” Replacing constitutional supremacy with judicial supremacy means there’s no limit to what the courts can declare “constitutional.” That, Spooner warned, is the road to despotism. “If a judicial decision contrary to the Constitution were binding simply because it were a judicial decision, the judiciary could constitutionally make themselves absolute sovereigns at once.” This would transform judges into a permanent class of unelected rulers with unlimited power. “If we take the decision as authority for the meaning of the constitution, all decisions will of necessity be constitutional, and the judges are of course, constitutionally speaking, absolute despots.” The Founders Supported Constitutional Supremacy Too Spooner didn’t invent these ideas. He was just repeating what the Founders had already made clear. Hamilton, in Federalist No. 78, wrote: “Every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.” To deny that would be to claim “that the servant is above his master.” Madison reminded us of the proper chain of authority: “The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind.” Tucker warned that laws not in line with the Constitution are no laws at all: “Otherwise they are not laws, but a mere nullity; or what is worse, acts of usurpation.” Despite what you may have heard, even John Marshall, in Marbury v. Madison, took the side of constitutional - not judicial - supremacy: “A law repugnant to the constitution is void; and... courts, as well as other departments, are bound by that instrument.” Jefferson knew better than to trust the courts: “Our judges are as honest as other men, and not more so... the constitution has erected no such single tribunal... it has more wisely made all the departments co-equal and co-sovereign within themselves.” And Madison emphasized that courts, like all branches, can violate the Constitution: “The judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution.” Spooner took this to its logical conclusion: if unconstitutional decisions aren’t law, they don’t have to be followed. “An unconstitutional judicial decision is no more binding than an unconstitutional legislative enactment - and a man has the same right to resist, by force, one as the other.” And for public officials who take an oath to the Constitution, Spooner said it’s not just a right - it’s a duty: “His oath to support the constitution (as he understands it) forbids him to execute any law that he deems unconstitutional.” This view reiterated what St. George Tucker wrote about the oath to the Constitution in 1803: “The people are not only not bound by them [unconstitutional acts], but the several departments and officers of the governments, both federal and state, are bound by oath to oppose them… They must violate that oath whenever they give their sanction, by obedience or otherwise, to any unconstitutional act of any department of the government.” JOIN TAC, SUPPORT LIBERTY! Let’s keep building the foundation! For as little as $2/month, help us take a stand for the Constitution and liberty - whether the government likes it, or not. (they don’t!) details here 5 Essential Truths from Lysander Spooner - echoing the views of leading founders. If judicial opinions are law just because judges say so - then we don’t have a written constitution, at all. Instead, we live under the British system of arbitrary power the founders fought a long, bloody war to secede from. That was the essence of Lysander Spooner’s warning. And from his writings, we’re left with five essential truths: The idea that judicial opinions are binding simply because they’re judicial opinions is the definition of tyranny. The Constitution - is the supreme law of the land. Judicial opinions are only binding when they align with the Constitution. Every official at every level takes an oath to the Constitution - not to anyone’s opinion about the Constitution. Refusing to enforce unconstitutional acts from any branch isn’t just a good idea - it’s required by that oath. Spooner nailed it: “The idea, so constantly asserted, that the permanent judiciary, the judges, have a right to decide all constitutional questions, authoritatively for the people, is one of those gross impostures, by which men have always been defrauded of their rights.” The bottom line: Judicial supremacy isn’t law. It has no basis in the Constitution. It’s tyranny. 📖 Much more in this article - Read now → HERE 🎙️ Watch or listen to the podcast → HERE It’s no wonder government-run schools never teach us much of this - if anything at all. That’s part of why we work so hard every single day to reach and teach more people about this essential history - and these essential foundational principles of the Constitution. But we can’t do it alone. Your membership support is crucial to keep these enduring ideas alive, shared, and put into practice. JOIN US TODAY! Here’s the link, you know what to do: https://tenthamendmentcenter.com/members/ Prefer to make a one-time donation? Pitch in here: https://tenthamendmentcenter.com/donate/ You can also mail a check to: Tenth Amendment Center 16755 Von Karman Avenue Suite 200 PMB 705 Irvine, CA 92606 Brick-by-brick. Person-by-person. Building a strong foundation for liberty – whether the government happens to like it, or not. (they definitely do not) Thank you so much for reading - and your support! Concordia res parvae crescunt (small things grow great by concord) Michael Boldin, TAC