The Least Dangerous Branch?

Deviations from the Constitution will always end in disaster. It reminds me of Thomas Jefferson quote from his letter to Samuel Kercheval in 1816:

“A departure from principle in one instance becomes a precedent for a second; that second for a third; and so on, till the bulk of the society is reduced to be mere automatons of misery, and to have no sensibilities left but for sinning and suffering. Then begins, indeed, the bellum omnium in omnia [the war of all against all], which some philosophers observing to be so general in this world, have mistaken it for the natural, instead of the abusive state of man.”

The left hates the Constitution of the United States. They have since the days of Woodrow Wilson. They believe it is a dusty old parchment dreamed up by old slave owning cis-gendered white men to preserve white supremacist patriarchy.

You don’t have to believe me – just listen to them when they say the Second Amendment is invalid because there is no way the founders could have foreseen the invention of the AR-15 or when it comes to the radical social engineering they favor, engineering that cannot stand without the coercive force of government being applied.

So, just imagine my chagrin when these same people -people who hate the Constitution – hold up signs saying they want to “defend the constitution” from an “un-American president”.

They believe when some leftist justice finds a convoluted way to create some “right” from whole cloth – that is what the Constitution is. It isn’t.

Alexander Hamilton wrote in Federalist #78 that “…the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.”

Hamilton also argued that the “Necessary and Proper” clause of the Constitution did not mean the federal government powers were unlimited, that Congress could only enact laws necessary to support the powers enumerated in the Constitution itself.

Boy, I can’t imagine the look on old Alex’s face if he could see what has happened to his “least dangerous” branch. He had an inkling how despotism could come about – reading a bit further down in Federalist #78, we find this:

“It equally proves that though individual oppression may now and then proceed from the courts of justice, the general liberty can never be endangered from that quarter: I mean so long as the judiciary remains truly distinct from both the legislature and executive; for I agree that “there is no liberty if the power of judging be not separated from the legislative and the executive powers.” And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but it would have everything to fear from its union with either of the other departments.”

If we take an honest look at the Supreme Court, over the past century, in addition to it’s power to interpret the laws, it has assumed the power of the Executive to enforce and the power of the Legislative to regulate. Rather than creating a “union with either of the other departments” the SCOTUS usurped those powers and is shielded from retribution by the idea of “judicial supremacy”, a concept twisted from John Marshall’s opinion in Marbury v. Madison (1803), elevating the Supreme Court to the single and sloe arbiter of that which is constitutional.

But Marshall’s opinion said none of that. Marshall never expressed that SCOTUS should be the ultimate arbiter – he simply held that Congress could not extend the jurisdiction of the Court beyond that which the Constitution had provided. President’s all the way through Lincoln saw the three branches as equal in interpretation of the Constitution – essentially saying that the judiciary could be overridden by the other two branches.

The first moves to politicize the courts gained momentum under Woodrow Wilson and continued with FDR trying to pack the Supreme Court when the Republican majority ruled many of his New Deal actions unconstitutional. Conservatives wanted to strengthen the court against FDR’s machinations and in doing so, set the stage for things to come.

The first real expression of “judicial supremacy” came about in the Warren court in 1958 when the justices claimed that Marbury v. Madison had “declared the basic principle that the federal judiciary is supreme in its exposition of the law of the Constitution, and that principle has ever since been respected by this court and the country as a permanent and indispensable feature of our constitutional system.”

The Warren Court went a long way toward politicizing and weaponizing the court system and setting SCOTUS up as a super-legislative body that is not co-equal to the other branches but one that sits above them…and that is why the progressive left sees control over the Supreme Court as a matter of life or death. For their ideology, it is.

One thought on “The Least Dangerous Branch?

  1. Excellent and Timely commentary.

    The Scotus is out of Control. Our entire Court system is in fact. I agree with Mark Levin’s assessment contained in his Liberty Amendments. There needs to be the ability of the States as well as the Legislature to nullify completely any Unconstitutional ruling with 3/5th vote.

    In truth though I think the whole concept of a Supreme Court is itself an abomination. It is antithetical for a truly FREE society…..or one created on its premise. Marbury v Madison in my mind proves its most fundamental flaw, out of the gate basically.

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