“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 any body, either upon the executive, or the people.”
That’s from Lysander Spooner, reminding us of an essential, but long-forgotten fundamental principle repeatedly affirmed by the Framers: The Constitution is supreme, not acts of Congress, not the views of the president, and not opinions of the courts.
That brings us to a crucial question: Who decides when the Constitution is violated?
According to the Founders, the answer was simple – everyone. And that’s the key to understanding what real “checks and balances” under the Constitution are all about.
The Judiciary’s Limited, Constrained Role
Thomas Jefferson strongly rejected the idea that the judiciary had exclusive and final authority to decide all constitutional questions. Writing to William Torrance, he made this clear:
“Certainly there is not a word in the constitution which has given that power to them more than to the Executive or Legislative branches.”
Most people today think that all constitutional questions are only answered by the Supreme Court. And – as a result, their view is not that the Constitution means what the Constitution says, or what the founders and ratifiers told us it means, but instead, the constitution means what the supreme court says it means – until it changes its mind.
But that’s not even close to the system of the founders under the constitution. It’s much closer to the British system they fought a long, bloody war to secede from.
In a letter to William Charles Jarvis, Jefferson called that system an oligarchy:
“You seem … to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy.”
Constitutional Supremacy
To understand this further, we have to go to the text of the Constitution, the supremacy clause in Article VI, Clause 2, which explicitly states:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The supremacy clause in the Constitution does not declare that all federal laws are supreme – only those made pursuant to the Constitution. That means any federal act that goes beyond the powers delegated to the government is, by definition, not supreme law at all.
Alexander Hamilton made this point crystal clear in Federalist 33:
“it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION.”
As Michael Stokes Paulsen and Luke Paulsen explain:
“All branches of government are equally bound by the Constitution. No branch of the federal government – not the Congress, not the President, not even the Supreme Court – can legitimately act in ways contrary to the words of the Constitution.”
This means that no single part of government has the final say over what the Constitution allows or forbids. Instead, every branch has an obligation to follow and uphold the Constitution as written.
“Indeed, Article VI requires that all government officials – legislative, executive, and judicial, state and federal – ‘shall be bound by Oath or Affirmation, to support this Constitution.’”
That oath is a direct acknowledgment that all public officials serve under the Constitution, not above it. It is the supreme law, and no institution has the power to twist or redefine it for its own purposes.
“Thus, the idea of a written constitution is closely tied to the idea of constitutional supremacy: In America, no branch of government is supreme. The government as a whole is not supreme. The Constitution is supreme.”
This is the essence of true constitutional government – not rule by any single branch, but by the clear words of the Constitution itself.
Corruption
The Founders understood that the judiciary – like all branches of government – was made up of people, and people are prone to the temptations of power. Judges, despite their robes and lofty titles, were no exception.
Thomas Jefferson warned that judges, like other officials, could be swayed by ambition, partisanship, and the desire to expand their own authority. He put it bluntly:
“Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privileges of their corps. Their maxim is ‘boni judicis est ampliare jurisdictionem,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party its members would become despots.”
Jefferson understood that concentrated power, especially in an unelected judiciary, would inevitably lead to despotism. Judges could claim more and more authority, slowly eroding constitutional limits under the guise of interpretation.
James Madison reinforced this concern in his Report of 1800. He pointed out that it wasn’t just the executive or legislative branches that could overstep their bounds – the judiciary, too, could usurp power beyond what was constitutionally granted:
“The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution.”
Madison’s warning was clear: there is no built-in immunity to judicial overreach. Just as a president might claim powers not delegated, or Congress might pass unconstitutional laws, the courts, too, could sanction violations of the Constitution by expanding power beyond what was delegated.
Spooner: No Intrinsic Authority
Spooner reinforced this principle, pointing out what should be painfully obvious – a court opinion does not become legitimate simply because a judge issued it.:
“If a judicial decision be according to law, it is binding; if not, not. An unconstitutional judicial decision is no more binding, than an unconstitutional legislative enactment”
He continued, echoing Jefferson’s warnings from decades earlier, exposing the dangerous implications of treating judicial opinions as automatically binding:
“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.
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.”
Spooner took this argument to its logical conclusion, warning of the inevitable result if the judiciary’s opinions were treated as supreme, final and absolute, no matter what:
“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.”
This is precisely the danger the Founders sought to avoid. Allowing the judiciary to be the sole arbiter of the Constitution’s meaning transforms it into an oligarchical ruling class. Instead of serving as a check on power, the courts become a source of power itself – one that, if left unchecked, would destroy the very foundations of liberty.
Coequal and Independent Branches
Because of these maxims of government and human nature, the founders set up a system of “co-equal” branches, rather than giving one branch any level of superiority over the others. Jefferson again explained that the constitution:
“has more wisely made all the departments co-equal and co-sovereign within themselves.”
Jefferson continued:
“the constitution, in keeping the three departments distinct & independant, restrains the authority of the judges to judiciary organs, as it does the executive & legislative, to executive and legislative organs.”
As James Madison explained in Federalist 49, the equality and independence of the three federal branches means no branch is the boss over any of the others, and none has the power under the constitution to compel the others to do or not do anything.
“The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”
Michael Stokes Paulsen summarized Madison’s view:
“That is as categorical a rejection of one-branch interpretive supremacy, and as unequivocal an embrace of interpretive coordinacy, as it is possible to imagine. It entails a rejection of judicial supremacy every bit as much as a rejection of congressional supremacy or executive supremacy in constitutional interpretation.”
No FORCE or WILL
Judges issue opinions, they don’t make laws. And they don’t have an enforcement arm, either. Alexander Hamilton explained it like this in Federalist 78:
“The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
Simply put, the judiciary has no army, no police force, and no power to compel obedience beyond the willingness of the other branches to respect its opinions. This was no accident – it was an intentional design of the Constitution to ensure that courts could not become tyrannical.
Hamilton reinforced this point in Federalist 81, emphasizing that the courts are incapable of imposing their will without external enforcement:
“This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force.”
Carson Holloway addressed this issue, explaining Hamilton’s perspective:
“Hamilton’s assurance here depends on the assumption that the executive might legitimately decide not to lend its ‘force’ to support a judicial decision that could be considered an ‘encroachment’ or a ‘usurpation.’ This, in turn, supposes that the executive may make its own determination on such questions.”
The Duty of Each Branch
For the founders, it was a duty to follow the constitution – even if other branches disagree. John Jay, the first Chief Justice, stated:
“That by the Constitution of the United States the government thereof is divided into three distinct and independent branches and that it is the duty of each to abstain from and to oppose encroachments on either.”
This principle was essential to maintaining the balance of power under the Constitution. John Jay strongly reaffirmed this in 1801:
“To secure the Liberties of the People and the legitimate Rights of their Government, against Encroachment and usurpation, it has from Experience been found necessary to divide the powers of Government into three distinct and independent Departments – aggregately considered, they possess all the power of Government; and are always in Capacity to defend their respective authorities against improper assumptions of Power”
Thomas Jefferson explained how this worked in practice:
“Each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.”
Jefferson specifically pointed to how he responded to the Sedition Act, explaining that both the judiciary and the executive had a duty to interpret the Constitution for themselves:
“You seem to think it devolved on the judges to decide on the validity of the sedition law. but nothing in the constitution has given them a right to decide for the executive, more than to the Executive to decide for them. both magistracies are equally independant in the sphere of action assigned to them. the judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the constitution. but the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. that instrument meant that it’s co-ordinate branches should be checks on each other.”
In short, the executive was not required to enforce what it viewed as an unconstitutional law just because the judiciary upheld it. Each branch had an obligation to act within its authority and reject unconstitutional actions by the others.
Jefferson warned that allowing the judiciary to dictate constitutional meaning to the other branches would create judicial despotism:
“the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature & executive also in their spheres, would make the judiciary a despotic branch.”
The Real Final Arbiter: The States
The Founders agreed on a fundamental principle: all power flows from the people of the several states – not from the federal government. The federal government is merely their agent, created to exercise only those powers delegated to it.
Given this, it would have been absurd for that agent to have the final say over the limits of its own power.
James Madison made this point explicitly in the Report of 1800:
“The states then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated.”
Madison left no doubt – there was no higher authority than the people of the several states themselves when it came to determining whether the Constitution had been violated. This applied to every branch of the federal government:
“the ultimate right of the parties to the constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.”
But it was Thomas Jefferson who gave the most forceful and unambiguous statement on the subject in the Kentucky Resolutions of 1798. He warned of the danger in allowing the federal government to be the sole judge of its own powers:
“That the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers”
This was the core issue – if the federal government, through any of its branches, had the sole authority to decide the limits of its own power, then there were, in reality, no limits at all. Instead, Jefferson laid out the true constitutional remedy:
“As in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode and measure of redress.”
Under the Constitution, no single branch holds absolute authority over its meaning. Each branch, and ultimately the people of the states themselves, must judge constitutional violations and act accordingly. This is the true system of checks and balances created and implemented by the Founders.
