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Demagogues, Judicial Supremacists, et al. v. the Constitutional Sovereignty of the People

In Federalist 78, Hamilton rightly observes that, in order respectfully to apply a law “the courts must declare the sense of the law.” But he acknowledges it to be a proven fact that “the judiciary is beyond comparison the weakest of the three departments of power.” He thereby admits that, though their declaration of the sense of the law effectively binds their own judgment, it does automatically bind the action of the other branches. If it did, the conclusion that the judiciary is the weakest branch of government would be an illogical conjecture, not a logically demonstrated fact.

Hamilton’s reasoning makes it clear that the Constitution aims to assure that the judges and justices have an independent say. Unlike the judicial supremacists of our day, however, he does not pretend (as Eric Holder recently did) that the courts “have final say.” This difference becomes starkly evident when, in Federalist 81, Hamilton points out

“…the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.”

Today the ambition driven, self-serving legions of the legal profession scoff at the notion (which Hamilton takes for granted) that members of the judicial department may be impeached because their decisions constitute “a series of deliberate usurpations on the authority of the legislature.” Today’s legal elites deliberately deceive and debase the public’s understanding in this regard with the patently nonsensical contention that judges may be impeached for ordinary crimes and misdemeanors, like stealing public funds, but not for the “high crimes and misdemeanors” involved in stealing the sovereign powers which, by the provisions of the Constitution, the people have entrusted to the other branches.

Hamilton’s honest reasoning makes it clear that the “final say” in matters of constitutional interpretation rests with the people, in and through their representatives in the legislature. But the people’s power to impeach and remove members of the judiciary also extends to the person vested with the government’s executive power. So, according to the provisions of the Constitution, if on Constitutional grounds, the people strongly resent the decisions of the Judiciary their representatives have the power to impeach and remove its offending members. By the same token, if the executive declines to act on a decision of the Judiciary, and the people strongly resent that inaction, their representatives have the power to impeach and remove the recalcitrant executive. To be sure, if both the Executive and the Judiciary join in disapproving some action of the legislature, the Constitution’s requirement that the Chief Justice must preside at the impeachment trial of the President adds to their ability to take issue with legislative acts they regard as unconstitutional.

For the removal of either the President or the members of the Judiciary the Constitution requires a two-thirds majority in the deciding body (the U.S. Senate). In and of itself, this assures not only that the people’s resentment must be strong, but also that it will be generally distributed throughout the country (since the U.S. Senators are chosen State by State.) All in all, when we reflect upon the provisions of the U.S. Constitution in light of Hamilton’s honest discussion of the impeachment/removal power, it is clear that the ultimate effect of those provisions is to assure that the people themselves will have the final say as to the sense or meaning of the Constitution, but only if and when the threat to the Constitution becomes so clear that it gains the attention and rouses the opposition of a numerous and nationwide majority of the people.

The false notion that the Supreme Court is the ultimate arbiter of Constitutional issues is intended to thwart this Constitutional implementation of the sovereignty of the people. It is part of a strategy meant to overthrow their constitutional self-government by allowing the members of a self-serving elitist faction to abuse the appearance of Constitutional legality as they impose their self-seeking and licentious will upon the whole body of the people, without regard for the principle of just government that requires their consent.

This strategy implements the classic plan of demagogic tyranny. On the one hand, it involves encouraging people to shrug off the discipline they must impose upon themselves through the Constitution (Obama’s sly attack on the proper Constitutional authority of the “unelected” Judiciary). On the other it invites them to surrender to that very same “unelected” Judiciary their sovereign role as the final arbiter of Constitutional disputes (Holder’s deceitful “courts have final say”.)

Instead of giving in to this ironic betrayal of America’s liberty, Americans would be better advised to reacquaint themselves with the more sanely balanced view of Framers such as Alexander Hamilton, whose sound reasoning helped sway the people of the United States to ratify the Constitution in the first place. They sought to inculcate and encourage the discipline imposed by respect for “the manifest tenor of the Constitution.” But they also understood that the people must never forget or surrender their sovereign responsibility to police the use and abuse of the powers they have delegated to the government they establish by means of its provisions. Though this responsibility is reflected in the Constitution’s provisions, it does not derive from them. Rather it arises from the endowment of the Creator, whom the American Declaration of Independence acknowledges as “the Supreme Judge of the world.” This is, of course, the same source from which arise the unalienable rights all human governments are instituted to secure; and from whose sovereign sway over their hearts and will a free people derives their sovereignty over the Constitution of government which expresses and implements their liberty.

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  • op_tomlinson April 8, 2012, 12:14 pm

    Poignant and salient as always Alan. Your knowledge and wisdom shine forth, but as we are sucked down the rat hole of socialism, we are separated from one another by ever increasing distances and light like yours become less than pin points of ever dimming and indistinguishable hopelessness.

    All that you say is deep and profound and true, though I am inclined to side with Jefferson that the SC was meant only a court to protect individual citizens from abuse. Has history not proven Jefferson correct concerning abuse by the court? Another time.

    There is only one thing that will save America now, only one thing that will retrieve us from the rat hole and the ever nearing teeth of socialism that seek to macerate what is left of us, shoving us down its gullet in preparation for complete digestion in the acid of its maw.

    There will be national repentance or there will be national death.

  • Guy Stevenson April 7, 2012, 12:06 pm

    “DemGOPs” or demigods for short, your choice to lose ?

  • Frederick Bastiat April 6, 2012, 9:24 pm

    Excellent work; as always. Thanks.

  • Gregory Poulos April 6, 2012, 10:58 am

    This should be well understood by people who have been appropriately educated in the operations and role of government, in what used to be called Civics classes.  The principles require observation, thought, and action by citizens, something the Founders obviously intended.  I do not think government schools today work to develop such understanding or responsibility. 

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