In declaring his nominee for the Supreme court today, President Obama declared, “The men and women who sit on the Supreme Court are the final arbiters of American law.” Truth be told, however, this idea that the Supreme Court is the final arbiter is a fiction created by the Supreme Court itself.
When this fiction was first created by the Court about 200 years ago, men immediately began to write and take them to task for it. For example, Thomas Jefferson wrote a letter to William Jarvis in September of 1820, wherein he stated, “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.”
The Supreme Court wrote themselves into this role – as lone and final arbiter of the Constitution – through their rulings. Though men will always try to forbear, the judiciary’s continued lawlessness is bringing this 200 year old debate to a head. Men are realizing they no longer have the convenience of acting indifferent towards the unjust and immoral actions of the federal judiciary.
The federal judiciary has invaded and usurped all jurisdictions and branches of government. Jefferson warned of this nearly 200 years ago. He wrote: “The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.” (Letter to Charles Hammond, August 18, 1821)
Two years later he wrote: “At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance.” (Letter to A. Coray, October 31, 1823)
The Supreme Court has usurped its constitutional restraints and has been playing the tyrant.
Understand, you cannot appease a tyrant – you must confront him.
Governors, Attorney Generals, and state legislatures (as well as county and local governments) simply must interpose against such judicial lawlessness and complicit executive and legislative federal branches. A true federalism understands that whenever one branch of government begins to play the tyrant – it is then more incumbent than ever for all other branches (whether federal, state, county, or local) to uphold the Constitution and resist the branch playing the tyrant – even if that branch is the Supreme Court.
Through so-called “Judicial Supremacy,” the federal courts claim to be the lone and final arbiter of what is constitutional and what is not. They claim this through the so-called “Supremacy Clause” – Article 6, paragraph 2 of the Constitution. But when one actually reads Article 6, paragraph 2 they see that the Supreme Court is not even mentioned there (nor any federal court). Rather – it is the Constitution itself that has supremacy.
The words of Thomas Jefferson are again appropriate here: “Our Constitution . . . intending to establish three departments, co-ordinate and independent that they might check and balance one another, it has given—according to this opinion to one of them alone the right to prescribe rules for the government of others; and to that one, too, which is unelected by and independent of the nation. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” (Letter to Judge Spencer Roane, Sept. 6, 1819)
Matthew Trewhella is the pastor of Mercy Seat Christian Church (MercySeat.net). He and his wife, Clara, have eleven children and reside in the Milwaukee, Wisconsin area. You can obtain his book The Doctrine of the Lesser Magistrates: A Proper Response to Tyranny and A Repudiation of Unlimited Obedience to Civil Government at Amazon.com or by going to the websites www.DefeatTyrants.com or www.LesserMagistrate.com.
