Judicial Supremacy

The Founding Fathers and other greats agree with

“Checks-and-Balances” Constitutionalist

Mike Huckabee

in rejection of Judicial Supremacy

“I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial. But I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments.”

 James Madison1789, the Father of the U.S. Constitution


“The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.”

Thomas Jefferson, letter to Thomas Ritchie, 1820


“[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.’ May that not be the case in our nation.”

— Abraham Lincoln

“An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others.”

James Madison, Federalist No. 58, 1788


“This natural law, being as old as mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, from this original.”

–William Blackstone, Commentaries on the Law of England (1765) 


“We should never forget that everything Adolf Hitler did in Germany was ‘legal’ and everything the Hungarian freedom fighters did in Hungary was ‘illegal.’”

— Dr. Martin Luther King, Jr., Letter from a Birmingham Jail

“It has long, however, been my opinion, and I have never shrunk from its expression … that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body, (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a 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.”

Thomas Jefferson, letter to Charles Hammond, 1821


“There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”

— James Madison, speech to the Virginia Ratifying Convention, 1788


“Of all the dispositions and habits which lead to political prosperity, Religion and Morality are indispensable supports. In vain would that man claim the tribute of Patriotism who should labor to subvert these great Pillars…Let us with caution indulge the supposition that morality can be maintained without religion. Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle…Morality is a necessary spring of popular government…Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation?

And of fatal tendency…to put, in the place of the delegated will of the Nation, the will of a party; – often a small but artful and enterprising minority…They are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the Power of the People and to usurp for the themselves the reins of Government; destroying afterwards the very engines which have lifted them to unjust dominion…

But this leads at length to a more formal and permanent despotism…Disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an Individual…(who) turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty…The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism…”

Let there be no change by usurpation…It is the customary weapon by which free governments are destroyed.”

— George Washington, Farewell Address


“The public good is in nothing more essentially interested than in the protection of every individual’s private rights.”

“Those rights, then, which God and nature have established, and are therefore called natural rights, such as life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolate. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture.”

— William Blackstone


“True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, although neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal a part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by Senate or People, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly called punishment …”

— Marcus Tullius Cicero, 59 – 47 B.C.

“Human law is law only by virtue of its accordance with right reason; and thus it is manifest that it flows from the eternal law. And in so far as it deviates from right reason it is called an unjust law; in such case it is no law at all, but rather a species of violence.”

— Thomas Aquinas, Summa theologiae, Ia-Ilae, q. xciii, art. 3, ad 2m.


“[A]ll men are equally bound by the laws of nature, or to speak more properly, the laws of the Creator.”

— Samuel Adams


“Any law contrary to God’s Law is no law at all.”

–St. Thomas Aquinas


“We must obey God rather than man.”

–St. Peter


“No enactment of man can be considered law unless it conforms to the law of God.”

–Sir William Blackstone


“There is a transcendent fixed rule of law that must govern man and societies.”

–Samuel Rutherford, “Lex Rex”


“Judicial supremacy”–the notion that a decision of the Supreme Court is to be taken as the supreme law, until overruled either by some subsequent decision of the Court or a constitutional Amendment–is nonsense on its face. The Constitution itself declares that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties * * * shall be the supreme Law of the Land”. Art. VI, cl. 2. No mention is made of judicial decisions as having that status, for the simple reason (known to everyone in 1788) that judicial decisions are not the Constitution, or “Laws”, or “Treaties”.

Now, consider: If the Supreme Court tomorrow declared that it, not Congress, had the power “[t]o declare War”, and as a consequence of that declaration that it also had the power to function as “Commander Chief of the Army and Navy of the United States”, would anyone–and I mean anyone in the entire world who was in his right mind–believe that, on the basis of “judicial supremacy”, the Court actually had such a power and status? If any such example can be put forward which refutes “judicial supremacy”, then “judicial supremacy” must in general be false. Oh, you say, that is an “extreme” example? No. It demonstrates what should be self-evident: namely, that in any case the existence of “judicial supremacy” can and must be judged by a standard superior to “judicial supremacy”. That superior standard is the Constitution, not the mental vacuity or malevolence of the Fifth Fool on the Supreme Court whose errant vote tips a four-to-four division one way or the other.

The fact is that the Supreme Court reverses itself on constitutional questions all the time. See the lengthy footnote to this effect in Payne v. Tennessee. Now, if the Court in case B has reversed its earlier decision in case A, what can we say with any sort of scientific confidence? That A is incorrect and B is correct? Or that A is correct and B is incorrect? Or that both A and B are incorrect (because they both cannot be correct)? What is the standard for determining the question? How can we verify or falsity A or B? Can the standard be that what is “correct” is simply what the Supreme Court has said most recently, even when it claims the power to change its mind at any time? Apparently that is the sum total of “judicial supremacy”: namely, “our word is law” (or l’etat c’est nous), for the time being. That may be a “form of government”, but it is not one the Constitution recognizes.

— Dr. Edwin Vieira, Ph.D., J.D.


“One may well ask: ‘How can you advocate breaking some laws and obeying others?’ The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all.’

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.

…Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong. …A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law.

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.

We should never forget that everything Adolf Hitler did in Germany was ‘legal’ and everything the Hungarian freedom fighters did in Hungary was ‘illegal.’ It was ‘illegal’ to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country’s antireligious laws.”

–Dr. Martin Luther King, Jr., Letter from a Birmingham Jail





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