Recently, a rogue U.S. District Court Judge issued and a panel of the Ninth Circuit Court of Appeals affirmed one of the most egregious judicial decisions in American history, dramatically undermining and thus relegating the issue of the sovereignty of this nation to the courts and unelected judges. This was the culmination of decades of ever expanding judicial activism enabled by the failure of Congress to enforce its prerogatives and rein in this runaway usurper of political power. The matter of the supremacy and influence of the judiciary in a representative republic has been an issue of contention since this nation’s inception, as the founders, while geniuses in their overall concept of government, erred greatly in the creation of an unaccountable Judiciary by relying on a factious Congress to serve as a check and balance on a co-equal branch when necessary.
A major issue of debate during the Constitution ratification process in 1788 was the structure, power and control of the Judiciary. The issue was twofold: 1) the degree of independence and the level of accountability of federal judges; and 2) Judicial Review of laws and statutes passed by Congress.
This prompted Alexander Hamilton (a staunch defender of the current system), using the pseudonym “Publius,” to write in the Federalist Papers No 78 that the Judiciary would be the weakest of the three branches, as it would not be able to overpower the Congress since they controlled the purse strings and the President controlled the enforcement of the Courts’ decisions. Thus, the Courts would have to depend on these branches to uphold its judgements. Further, federal judges must have life tenure and thus independence; however, Congress could remove a sitting judge via impeachment for high crimes and misdemeanors. He also argued that the Courts should be tasked with the duty of reviewing statutes passed by Congress to determine if they are consistent with the Constitution as a means of restraint on the legislature. Hamilton further stated that because of the Courts’ inherent weakness in enforcing their judgements, the possibility of corruption affecting judicial reviews would be a non-issue.
Countering Hamilton’s argument was Robert Yates, using the pseudonym “Brutus” in the Anti-Federalist papers, who contended that his primary concern was that judges would substitute their will for the plain text of the Constitution. He wrote: