Constitutional Supremacy versus Judicial Supremacy: Do We Live in an Enduring Republic or a Potential Oligarchy?

If the American people do not rise up in opposition to judicial supremacy whenever it occurs—but instead choose to habituate themselves to the practice—they ultimately risk losing their freedom, as the legislative choices they make to govern their lives, through their chosen representatives, will be nullified time and again by unelected elites in black robes.  In the end, Constitutional supremacy must be affirmed, lest the American people lose their free republic.

“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.  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 privilege of their corps. . . .  [T]heir power [is] 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 and party, its members would become despots.  It has more wisely made all the departments co-equal and co-sovereign within themselves.  If the legislature fails to pass laws . . . as prescribed by the constitution, or if they fail to meet in congress, the judges cannot issue their mandamus to them; if the President fails to provide the place of a judge, . . . the judges cannot force him.  They can issue their mandamus or distringas to no executive or legislative officer to enforce the fulfilment of their official duties, any more than the president or legislature may issue orders to judges or their officers.”  —Thomas Jefferson’s Letter to Mr. Jarvis, dated September 28, 1820, at Monticello, wherein he affirms the co-equal powers of the branches of government


Marbury v. Madison: Background

Just before the end of President John Adams’s term as president, Adams appointed 16 Federalist judges to the federal circuit courts and another 42 jurists to lesser courts.  This action was allowed, due late passage of a statute called the Judiciary Act of 1801, which doubled the number of court circuits from three to six and loaded them with Federalists, in an attempt to thwart the incoming Democratic Republicans.  These judicial appointments became known as the “Midnight Judges.”  Although the new judgeships were hastily approved, and the nominees to the posts were expeditiously ratified by the lame-duck Senate, the commissions to these posts had to be delivered to the individual appointees to become official.  The job of carrying out the delivery of these commissions fell to John Marshall, who, although he had recently been appointed Chief Justice of the Supreme Court, was still busy fulfilling his duties as the acting Secretary of State for President Adams. Although Marshall succeeded in delivering a majority of the commissions to the intended recipients, the clock ran out before Thomas Jefferson was sworn in as the new president.

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One of the first acts by Jefferson as chief executive was to cancel delivery of the remaining commissions.   According to Jefferson’s point of view, the commissions, having not been delivered on time, were null and void.  And Jefferson’s new government, dominated by his own party, would eventually proceed with repealing the Judiciary Act of 1801, thereby ridding the federal judiciary of a host of Federalist judges.  Marbury saw as his remedy taking his case to the Supreme Court, in order to force the Jefferson Administration to deliver him his commission.


Marbury v. Madison: the Case

On February 24, 1803, the Supreme Court ruled unanimously that Marbury had the right to his commission but that the Court had no power to force the delivery of it.  So, in short, John Marshall, now the sitting Chief Justice, wrote, in his legal opinion, that the non-delivery of the commission violated the law; also, the laws of the United States did offer Marbury a legal remedy in his dispute; but the Court did not have the legal jurisdiction to issue a writ of mandamus to force the executive branch to comply with the law.  In other words, there was a legal remedy already available that did not require an intervention by the Supreme Court.  This being the end of the matter, nothing more need be said.


Obiter Dictum or Enduring Principle?

However, Marshall refused end the matter totally, going on to explain that, in his view, the Judiciary Act of 1789’s assigning of jurisdiction to the Supreme Court, of issuing a legal remedy like the one being requested by Marbury, was in conflict with Article III of the Constitution, which clearly defined the Supreme Court’s original and appellate jurisdictions, and which did not include this extra one assigned by Congress.  Marshall was saying that Congress had no authority to modify the Supreme Court’s original jurisdiction.  So, since the Court had before it a conflict between a federal law and the Constitution, Marshall had decided that, in such an instance, the Court must side with the Constitution, finding any act of Congress that came into conflict with the Constitution to be un-Constitutional and, therefore, not law.  In other words, Marshall had just declared, definitively, and in writing, that the Supreme Court was the proper authority in deciding all questions of Constitutionality, among the three branches of government.  Marshall opined the following ( “[I]f both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case.  This is of the very essence of judicial duty.  If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

So, by ruling that it had no jurisdiction to hear this case assigned to it by an act of Congress, due a conflict between that act and the Constitution, the Supreme Court had now established itself to be the final word on the meaning of the Constitution, in the eyes of many.  However, there was no universal agreement in this regard.  There were, in fact, many who refused to agree on this point.


Jefferson’s Viewpoint

Indeed, Thomas Jefferson wrote in his Letter to Judge Johnson, dated June 12, 1823, at Monticello, (in Memoir, Correspondence, and Miscellanies, from the Papers of Thomas Jefferson, edited by Thomas Jefferson Randolph) that “[t]his practice of Judge Marshall, of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and very censurable . . . [since] the Chief Justice went on to lay down what the law would be, had they jurisdiction of the case; to wit, that they should command this delivery.  The object was clearly to instruct any other court having the jurisdiction, what they should do, if Marbury should apply to them.  Besides the impropriety of this gratuitous interference, could any thing exceed the perversion of law?”  Jefferson sees John Marshall as having clearly gone outside the lines of his role as Chief Justice, by prescribing to any court that might take up the matter what it is that court should decide.

Moreover, Jefferson writes, “[W]hatever is in the executive offices is certainly deemed to be in the hands of the President; and, in this case, was actually in my hands, because, when I countermanded them, there was as yet no Secretary of State.  Yet this case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversion [censorious comment] on its being merely an obiter [incidental] dissertation of the Chief Justice.”  So, Jefferson believes that since the Court lacked jurisdiction, and admitted as much, any other commentary by the Court upon this matter should be of no legal consequence.  Once the Supreme Court has quitted the case, it did not have any authority to go on, ruling beyond the limits of the case at hand.  The case was closed at the moment the Court found there was no jurisdiction.  Any further commentary was merely extra-legal and incidental, without applicable legal value.  Further, Jefferson seems to propose that the executive has just as much right to interpret the Constitution as the judicial branch does.  This would also suggest that the same is true of the legislative branch.  According to Jefferson’s notion expressed here, each of the three branches has a say in how the Constitution is to be interpreted.  And the Supreme Court is not the ultimate arbiter of Constitutional interpretation—indeed, it is the American people who must have the final word.

Jefferson continues: “But the Chief Justice says, ‘there must be an ultimate arbiter somewhere.’  True, there must; but does that prove it is either party?  The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two thirds of the States [per Article V of the Constitution].  Let them decide to which they mean to give an authority claimed by two of their organs.  And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force.”  It is obvious that the Jeffersonian ideal is one where the people decide the issue, per the amendment process laid out in Article V of the Constitution.


Lincoln Asserts Constitutional Supremacy over Judicial Supremacy

In a book review of The Constitution: An Introduction, appearing in the Washington Post (, Michael S. Paulsen discusses the tension between “Constitutional supremacy” and “judicial supremacy.”  Republican candidate Abraham Lincoln stood for the former notion, while Stephen Douglas, his Democrat opponent in a series of seven debates, during their now-famous 1858 contest for the Senate, stood for the latter.  According to Paulsen, “Lincoln stood for constitutional supremacy, and against the prospective binding authority of the Supreme Court’s betrayal of the Constitution in Dred Scott v. Sandford. . . .  [I]t seems fair to say that one cannot embrace the modern view of reflexive judicial supremacy without simultaneously opposing nearly everything Lincoln said and did as President.  Indeed, on a thoroughgoing judicial supremacist view, it could fairly be argued that the South was justified in seceding—in reaction to the election of a president committed to a lawless course of action. . . .  Lincoln’s position on slavery in the territories and the Supreme Court’s decision in Dred Scott were in direct contradiction.  Today it seems clear that Lincoln’s interpretation of the Constitution was right and the Supreme Court’s interpretation was wrong—horribly, willfully wrong.  Yet, was Lincoln not bound to regard the Supreme Court’s decision against his position as deciding the matter?  Indeed, are not all public officials, and all citizens, obliged to treat the Court’s decisions as settling constitutional questions, whether they agree with those decisions or not?”  Lincoln’s argument was that the Supreme Court’s opinions are only binding upon the outcome of each case set before it; they were non-binding on the President of the United States and on the Congress.  Thus, unlawful rulings by the Court may be legally ignored by the executive and legislative branches until such time as those harmful decisions are finally reversed or overturned in favor of Constitutional ones.  Lincoln insisted that this was part of the Constitution’s system of checks and balances.  “The alternative, in Lincoln’s mind, was resignation of free, popular government under the Constitution into the hands of the Court, no matter how wrongheaded it’s decisions.”  And popular sovereignty, according to the letter and the spirit of the Constitution, was never intended to yield to a judicial-based system of elitist oligarchy, wherein a relative few elites in black robes dictate law by legislating from the bench.


Other Cases Where the Supreme Court Got It Wrong

Two other cases, besides Dred Scott, where the Supreme Court went totally off the rails, by ruling into law Constitutional rights without any basis at all in the Constitution itself, are Roe v. Wade and Obergefell v. Hodges.  Both rulings were out of line with Constitutional principles.

Roe ( was ruled on by the Court, in 1973, and provided the finding that a woman had a Constitutional right to have an abortion.  Since the US Constitution does not address reproductive rights anywhere in its text—which is a no-brainer to anyone who cares to read its 17,000 plain words—abortion becomes a Tenth Amendment issue, left for the states to decide, not the federal judiciary.  The correct ruling would have been for the Court to have ruled that it had no jurisdiction in the matter.

In the case of Obergefell (, over four decades later, the Court ruled that gay marriage was a Constitutional right.  The problem here is that, once again, this is an issue properly left for the sovereign states to decide, since the Constitution is mum with regard to the institution of marriage.


Why Constitutional Supremacy Needs to Be Affirmed

While many people were cheering for the outcomes which came about, even those people are hurt by these bad Supreme Court rulings in the long run, for the setting of any precedent that the Supreme Court has the right to make new laws for the people, outside of the regular legislative process, robs the people—all of the people—of their right to decide what laws they want for themselves, through their elected representatives.  All that is needed for the federal court system to evolve into an unelected oligarchy—a set of likeminded rulers, 90% of whom have all graduated from the same ten law schools—is for the people to accept, time and again, this brand of judicial overreach.  It is nothing new.  And it has been vigorously opposed by Thomas Jefferson, Abraham Lincoln, and many others.  If the American people do not rise up in opposition to judicial supremacy whenever it occurs—but instead choose to habituate themselves to the practice—they ultimately risk losing their freedom, as the legislative choices they make to govern their lives, through their chosen representatives, will be nullified time and again by unelected elites in black robes.  In the end, Constitutional supremacy must be affirmed, lest the American people lose their free republic.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by

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