Magazine article from The New American, Vol. 28, No. 10 – May 21, 2012
Have you ever considered the harm being done to the constitutional balance of power by an activist federal bench and blamed it on James I of England?
No? Well, that, will change after you read William J. Watkins’ illuminating and timely new book, Judicial Monarchs.
For Watkins the answer to the question of how the court has been able to usurp so much power and the question of how to disgorge it of that power lies in the restoration of sovereignty to its rightful place: with the people.
In a brief though expertly crafted review of English history, Watkins presents a compelling argument that the Supreme Court, specifically, and all federal courts, generally, have ascended to the pinnacle of sovereignty by wresting that right away from the people. The court’s oldest and most useful tool in climbing to this lofty position is judicial review and the wide-spread notion that the Constitution grants to the court the role of final arbiter of all that is or is not constitutional.
From the introduction, Watkins, a research fellow at the Independent Institute and author of Reclaiming the American Revolution, encloses the entire landscape of the history of an overreaching judicial branch within the framework of sovereignty.
For example, in his comparison of early American history (including the history of the transformation of the English constitution), Watkins illustrates how sovereignty shifted in England from the Kings who asserted a divine right to rule, to Parliament, which, as a result of the Glorious Revolution, rejected the idea that the King was God’s chosen representative and established the legislature as the ultimate authority and locus of power.
This evolution, Watkins argues, eventually culminated in the restoration of the people as the natural and rightful rulers of a nation, as expressed in the Declaration of Independence, and with the assumption of the full powers of the English Parliament by the American state legislatures.
“The rejection of parliamentary sovereignty and connection with the king left ultimate sovereignty in each legislature,” Watkins writes. The American Revolution, then, was less a revolution (from one form of government to another) than a restoration of the right of self-government that was the inheritance of every freeborn Englishman and thus of every American.
This relocation of the right to rule was not the completion of the sovereignty cycle, however. Americans (and many Englishmen before them, such as the Levelers of the 17th century) were not content to permit any artificial body such as a legislature (regardless of whether it met in Williamsburg or Westminster) to exercise unfettered lawmaking power over them, they who were the organic source of all sovereignty.
As the author writes: “Such power resided in the people themselves. Putting this principle into practice, the states–starting with Massachusetts–used popular conventions to adopt written constitutions. The act of a legislature was viewed as insufficient to create fundamental law.”
The people’s self-identification as the final authority on all questions of constitutionality was reflected in the framing of the U.S. Constitution in Philadelphia in 1787 and in the requirement that in order for the document to be of legal force, the people, acting in their collective role as states, would have to give their assent to it in ratifying conventions. “Popular sovereignty,” explains Watkins, “became the cardinal principle of the American constitutions.”
While such cogent declarations of power were consistent with the observable are of authority from monarch to parliament to people, it wasn’t long after the Constitution of 1787 took effect that the locus of sovereignty sustained such a severe blow that the trajectory of constitutional authority was thrown far off its historic course.
In 1803, Chief Justice John Marshall issued a landmark ruling in the case of Marbury v. Madison. In his masterful analysis of this oft-cited decision, Watkins demonstrates that Justice Marshall did not intend to divest the people of their hard-won sovereignty–nor did he intend to assume that power on behalf of the Supreme Court, regardless of how often that scenario is taught in the nation’s universities and law schools.
As Watkins so convincingly explains in Judicial Monarchs, John Marshall, in his decision in Marbury, did not declare the Supreme Court to be the final arbiter on the meaning of the U.S. Constitution. Rather, Marshall’s reasoning very closely reflected similar statements included in the opinions of state court judges who addressed the critical issue of the balance of power, particularly that portion allotted to the court.
In his seminal ruling, Marshall held that, as a co-equal branch of the central government created by the Constitution of 1787, the Supreme Court must recognize constitutional provisions when deciding a case or controversy. In fact, Watkins insists that Marshall argued in Marbury that the court should show significant deference to the elected branches of government.
How, then, did Marbury v. Madison become the touchstone of constitutionality for generations of proponents of judicial review? In answering this question, Watkins once again demonstrates his extraordinary understanding of one of the more complex and controversial aspects of American constitutional law.
Watkins, a former law clerk to Chief Judge William B. Traxler, Jr. of the Fourth Circuit Court of Appeals, demonstrates these impressive chops in laying out chapter and verse of how the court has become the end all and be all of constitutional interpretation–a role, he argues, the Founders never intended it to take.
“Contemporary reaction to Marbury supports a narrow reading of the opinion,” argues Watkins. “Jefferson never objected to Marshall’s claim that the court was a coequal branch that could exercise judicial review. In his 1804 letter to Abigail Adams, Jefferson espoused his affirmation that “nothing in the Constitution has given [the judges] a right to decide for the Executive, more than the Executive to decide for them.” Therein, is the clue to unravelling the various threads of judicial tyranny that have been woven by Presidents, Congressmen, and Justices in the 208 years since Marbury.
While Watkins admits that the precise path taken by the Supreme Court from co-equal branch of the federal government (and agent of the people) to sole possessor of interpretational authority is difficult to determine, he posits that one contributing factor may be simply the passage of time from independence to today.
“The locus of sovereignty was the driving principle of the American Revolution. Today, modern Americans think of the Revolution as a tax protest movement and do not have a clue about the struggle for sovereignty,” Watkins laments. “They assume,” he continues, “that courts, at least since 1803, have enjoyed the final word on the constitutionality of state and federal statutes.”
In light of the near universal assumption of the preeminence of the judicial branch in matters of constitutionality, why would Congress not combat the prevalence of this position and work to re-establish the balance of power as set by the framers of our Constitution?
In an interview with THE NEW AMERICAN, Watkins proposes that Congress not only does not want the scales balanced, but they, more often than not, put their weighty thumb of influence on the side of the judiciary.
“By allowing the Supreme Court to get elevated to the supreme branch of government,” Watkins says, “the Congress gets to avoid taking tough stands on controversial social issues that might lose them votes.”
It would seem, then, that there is a perfect storm of congressional lassitude and popular misconception of sovereignty that will continue blowing the ship of state off course. Unless, that is, something drastic is done to right the Republic.
In order to retake control of the helm, the American people must first realize that “judicial independence, to the founding generation, never meant independence from the people. State and federal judges are not high priests of the constitutional order”; they are, Watkins reminds us, “mere agents of the people” and must not be allowed to continue to “rebel against their masters and usurp power.”
Watkins recommends a sustained effort by the people, as sovereigns, to impose restraints on the judiciary. His roster of potential remedies includes the infusion of greater authority in juries; the removal of activist judges from the bench, or the nullification of the policy pronouncements included in their decisions; the installation of term limits on judges or providing for their popular elections; and (the one most palatable to a majority of constitutionalists) the specific spelling out by Congress of the jurisdiction of the federal courts as they are empowered to do by Articles I and III of the Constitution.
Regardless of the solution (or combination thereof) chosen by the American people to address the problem of judicial usurpation of legislative and executive power, the time for action is now. Americans must come to understand that “judicial supremacy is not a sacred Founding principle highlighted by John Marshall in Marhury v. Madison.” They must demand that their elected representatives act boldly in their exercise of constitutional power that is their prerogative. Finally, Americans must accept that We, the People, are the ultimate sovereigns and the final arbiters of what is or is not constitutional.
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