The Constitution's limits on the power of government, including the limits on the power of the courts, are of real significance only to the extent that they are respected in practice. The limits on the power of the Federal courts, chief of all the Supreme Court, under the constitutional system, merit careful consideration in this discussion of limited government.
The Federalist is a rich source of knowledge in this regard. In the following comments, reference is made to some of its pertinent essays ---notably numbers 78-83 devoted mainly to the subject of the Judiciary. It is believed that readers of this study-guide will find certain portions of that material of such great interest and practical value to the clarity of their thinking, which is of the gravest importance to enlightened and sound self-government in America, that it will be helpful if ready reference can be made to these selected portions of the original text; so they are presented in a special section in the Appendix (pages 271-286, post). Main additional references are the volumes reporting the debates in the Framing Convention of 1787 and in the State Ratifying Conventions in 1787-1788: The Records of the Federal Convention of 1787, four volumes edited by Max Farrand, and The Debates in the Several State Conventions on the Adoption of the Federal Constitution, etc., edited by Jonathan Elliot, in five volumes (fifth presenting debates in Framing Convention).
It merits stressing at this point that there is no mystery about the fundamentals of self-government under a written Constitution. Common sense is all that is needed to understand the subject in its essentials. As John Adams stated, with regard to the virtues of the forefathers in America before his day:
"They knew that government was a plain, simple, intelligible thing, founded in nature and reason, and quite comprehensible by common sense."
This applies to all aspects of constitutionally limited government, including the meaning of the Constitution which is readily understandable if considered with common sense and studied adequately. As Chief Justice John Marshall stated for the Supreme Court in the 1824 Gibbons case (page 188 of opinion):
During the ratification debates in 1787-1788, one of The Framers, Oliver Ellsworth, who later became Chief Justice of the United States, highlighted the common-sense wording of the Constitution, stating:
"As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said."
The common-sense approach applies to all aspects of constitutionally limited government including the limited role assigned, and the limited power granted, by the people to the Supreme Court as a part of the constitutional system.
"It is an excellency of this Constitution that it is expressed with brevity, and in the plain, common language of mankind."
Some essentials regarding this limited role and power of the Supreme Court will now be considered--as understood and intended by those who framed and adopted the Constitution and created the constitutional system, according to their writings, notably The Federalist, as is clear when they are studied with requisite competence and intellectual integrity: free from warping bias stemming from any hostility to The Founders and their handiwork.
1. The Constitution is controlling, as the "supreme Law of the Land." Article VI makes it supreme over all laws (legislative Acts)--as well as over treaties, as we have seen--and requires all judges and other officials, Federal and State, to be "bound by Oath or Affirmation, to support this Constitution." It automatically makes null and void all governmental Acts (laws), decisions, orders, pronouncements, and actions in conflict with it--null and void from the time each one may occur. (See, for example, The Federalist, nos. 33 and 78 by Hamilton.) "Affirmation" is permitted for those whose religion forbids "swearing."
2. The original meaning is controlling, as determined by the intent of those who framed and adopted the Constitution in 1787-1788 and by those who framed and adopted each amendment on behalf of the sovereign people, who alone can change it as their fundamental law and only by amending it. This was commonly understood in the 1776-1787 period, as noted in The Federalist number 53 by Madison:
"The important distinction so well understood in America between a constitution established by the people, and unalterable by the government; and a law established by the government, and alterable by the government, seems to have been little understood and less observed in any other country."
The government is powerless to change the Constitution; and this applies to the Judiciary, acting alone or in collaboration with the other Branches. A particularly impressive restatement by the Supreme Court--of the basic rule that "the original meaning is controlling"--in the 1905 South Carolina case, is presented in a special section of the Appendix (page 291, post).
3. The original meaning is ascertainable from the Constitution's own words--construed in the light of the intent of the framing and ratifying bodies with respect to the particular provision (of the original instrument, or any amendment) under consideration--as supplemented by all pertinent historical records which cannot change or be changed, just as that intent is unchangeable.
4. The strictly limited role of judges in "interpreting" the Constitution--the role as clearly defined under the constitutional system and well understood by all competent and .reliable authorities ever since 1788--is to ascertain, define and apply this intent and meaning solely on the basis of its words and the above-mentioned historical records. That is, merely to clarify--not to make--the fundamental law (which the Constitution itself determines) as intended by those who framed and adopted it (per pars. 2 and 3 above). As explained particularly in The Federalist number 78 by Hamilton, in so doing judges are obligated to apply their honest Judgment to such ascertainment, definition and application; and not to indulge their Will, or whim, in disregard of the original intent and meaning mentioned above. As Hamilton there also emphasizes, in deciding cases thus involving principles of the Constitution, judges--chief of all those on the Supreme Court as the highest judicial authority--are obligated to respect precedent (to abide by prior decisions which have so ascertained, defined, and applied that unchangeable intent and meaning on the basis of those historical records). Therefore, they may not change their minds as and when they please concerning the meaning of this fundamental law, concerning the definition of these principles. Any such power so to change their minds could not but result in its belittlement, if not doom, as the intended source and basis of stability of limited government in America--as the reliable guide for the conduct of the people and the dependable bulwark of their liberties. In this connection, decisions by the Supreme Court must be made impartially, "according to the rules of the Constitution," as Madison asserted in The Federalist number 39. (See also number 81, by Hamilton.)
5. Interpreting, or construing, the provisions of the Constitution properly, in keeping with the foregoing traditional precepts--which is all that judges are empowered and authorized to do under the constitutional system--is entirely different, and must always be distinguished, from the role of judges in the entirely separate field of ordinary, day-to-day, law (called Common Law) which involves not the Constitution but judge-made rules pertaining to matters such as contracts, Wills, real estate transactions, and so on. Judges may, of course, change the legal rules which they themselves have power to make (separate and apart from the Constitution and legislative Acts); but they have no power to change either legislative Acts--which the enacting, legislative body alone may make and change---or the Constitution, which the people alone may make and change. This is elementary, and a controlling principle, in constitutional law--under the constitutional system--as intended by The Framers and Adopters. The principle of stare decisis (meaning "adhere to prior decisions and do not disturb settled points") is the general rule even in the field of judge-made law (Common Law), because Law is designed primarily to provide a stable guide for the people's conduct of their affairs and not to be changed from day to day according to the whims of judges; which indicates the difference between the antithetical systems of Rule-by-Law and Rule-by-Man. If Justice requires, however, in a particular case in this field of judge-made law, the judge of course has power to disregard prior judge-made rules and to make a new rule to fit the facts of that case. This stare decisis principle permits such changing only in the field of judge-made law (the Common Law) because it has nothing to do with the field of people-made law: that is, the people's fundamental law, the Constitution, which the people alone have the power to make and change; as various Supreme Court cases have made entirely clear, notably the 1935 Dimick case. Nothing but common sense is needed to understand this vitally important difference between the two entirely separate fields of judge-made law and people-made law.
6. Judges possess the power of "judicial review" (reviewing legislative Acts, or any governmental pronouncements or actions--so as to decide their validity under the Constitution) under the American constitutional system due to the basic principles of limited government, although there is no express mention of this judicial power in the Constitution, as Hamilton pointed out in The Federalist number 81--also noting there the point that the Constitution must always be considered the controlling standard and supreme over laws. (This point is discussed in other numbers also, for example 33, 39, 78 and 80.) The fact that the courts have the power, and are under an obligation, so to enforce the Constitution--by deciding in appropriate cases that all laws found to be in conflict with the Constitution are null and void from the start--was well understood and repeatedly stated in the Framing Convention and in the State Ratifying Conventions: notably by Madison, Gerry, King and Mason in the Framing Convention and, in State Ratifying Conventions, by a number of members including two who later became Chief Justice of the United States: Oliver Ellsworth (Conn.) and John Marshall (Va.), also by James Wilson (Pa.) who became a member of the Supreme Court. It is important to keep in mind that it is only the Constitution itself which makes a conflicting law void, from the start, and not the decision of the Court--which has power merely to ascertain and declare this to be the fact; therefore the court has the power thus to clarify and explain the existing legal situation (under the Constitution), meaning the existing law, but not create it--not make law in the constitutional field. The principle that a constitution is supreme and makes void all laws in conflict with it was well understood in America long before the United States Constitution was framed--for instance, in arguing in 1761 in a Boston court against the infamous "Writs of Assistance" law enacted by Parliament, James Otis declared: "An act against the constitution is void." (Likewise in 1764 in his "The Rights of the British Colonies.") Debatable as to that (British) "constitution," it is unchallengeable as to a written Constitution of the American type. This is unquestionably correct as to a law in conflict with a written Constitution such as the United States Constitution.
7. Judges are limited by Article III, Section 2, to deciding genuine controversies in cases properly brought before any court, including the Supreme Court---controversies which are capable of final settlement by a court in accordance with legal principles. They have no power to offer "advisory opinions," or to consider political issues (which are properly determinable only by the Executive or the Legislative Branches). This is in accordance with the Constitution's definition of the judicial authority and jurisdiction of the Federal courts. Judges are, of course, powerless to enlarge their own authority, or jurisdiction; as Hamilton emphasized in The Federalist number 83.
8. Supreme Court decisions do not constitute the "supreme Law of the Land." Its decision in a case is limited by the facts involved and constitutes only "the law of the case," binding merely the parties to the case. This is true as to all cases and all courts, including the Supreme Court. Even in a case involving consideration of the Constitution, therefore, the Supreme Court's decision--involving a mixture of legal rules and principles as applied to the facts involved--cannot and does not constitute a part of the "supreme Law of the Land;" which the Constitution (Article VI) defines as including only this fundamental law itself, as well as Federal Laws, meaning Acts of Congress, and treaties (which conform to the Constitution).
9. Once the meaning of any part of the Constitution has been properly ascertained, in keeping with the original intent (Paragraphs 2 and 3 above), and defined accordingly as a principle of the Constitution by the Supreme Court as the highest judicial authority on the basis of all pertinent, historical records (which can never change or be changed), so as to clarify the original intent and meaning, this definition--as first determined by the Supreme Court--becomes in effect a part of the Constitution's words thus construed (as concerns the Court's power to interpret) and cannot thereafter be changed by the Court; because the records and intent are unchangeable. This meaning and principle--as so ascertained and defined for the first time---may thereafter be nullified and supplanted only by the people and only by amendment. Once the Supreme Court thus first determines the definition in any particular, it thereby exhausts its power and authority as to this particular topic and thereafter has no power to make any new and conflicting definition of the Constitution's words involved--according to the constitutional system as understood and intended by the Framers and Adopters in 1787-1788. This is necessarily true because any power of the Court to "change its mind" at its pleasure--to re-define at will the words of the people's fundamental law--would be a power without limit; and the effect would be endless "changing of mind" and endless changing of definitions so as to have judge-made law in place of the Constitution's people-made law to the doom of the intended stability as a guide for the people's conduct and as a bulwark of their liberties. This would be a monstrous absurdity, according to the American philosophy of Man-over-Government proclaimed in the Declaration of Independence--necessarily put into practice through constitutionally limited government. Such changeability by judges would spell unlimited Rule-by-Man.
10. Any judge's decision is null and void if in conflict with the Constitution in its original meaning (per paragraph 2 above)--so nullified automatically from the start by the Constitution itself due to the fact of such conflict. This applies to all judges and all courts. Any judge, acting alone or as one of a group of judges on a court, who makes such a conflicting decision thereby acts outside of the scope of his judicial authority under the Constitution--therefore outside of the Law, in violation of Rule-by-Law (basically the people's fundamental law: the Constitution). It amounts to Rule-by-Man.
11. Any judge who violates the Constitution acts as a usurper, in conflict with his oath of office. Every Federal judge is sworn to support the Constitution only (necessarily in its original and controlling meaning) so his responsibility and culpability--legally and morally--as a usurper is individual and personal in each case. Usurpation by a higher court cannot excuse violation of his oath of office and the Constitution by a lower-court judge, through his adhering to the anti-Constitution policy and decisions of the higher court and claiming their leadership as an excuse for his default as a public trustee.
12. The real chaos of Rule-by-Man, supplanting Rule-by-Law (basically the people's fundamental law, the Constitution), would inescapably result from any violation of the Constitution--in its original and controlling meaning--by judges who would misinterpret it so as to make it seem to mean something different, to suit their own wishes, changing from time to time according to their changing aims. This would apply especially to the highest judicial authority: the Supreme Court. Considered from the standpoint of the stability and security of the Republic and of the God-given rights of every Individual--entirely dependent for their security upon a stable Constitution-any such Rule-by-Man practices could not but produce judge-made chaos. For any lower-court judge to violate his oath of office (to support the Constitution only) by collaborating with higher-court judges in any such usurpation of power would amount to his helping to produce this chaos of Rule-by-Man, this judge-made chaos. (It is pertinent at this point to refer to the comment on page 175, ante, about judges not being given the Rule-by-Man type of power to construe the words of the Fourteenth Amendment, in relation to the Bill of Rights, according to their changing whims.)
13. What is sometimes referred to as "judicial chaos"--meaning the situation created by a lower-court judge's refusal to give unlimited and unquestioning submission to judges on a higher court--could apply only to a Rule-by-Man system under which highest judges would be omnipotent and fill the role of The Authority Supreme (not bound by any Constitution as the supreme law); than which nothing could be more hostile to the American philosophy and system of constitutionally limited government. The term "judicial chaos" obviously has no place, therefore, under the American philosophy and system of Rule-by-Law based upon the Constitution as the "supreme Law of the Land" with every judge sworn, as a public servant and trustee of the people, to support the Constitution only (necessarily in its original and controlling meaning). Every judge is not only not obligated to obey any usurper-judges on a higher court but is clearly obligated to defy and denounce such violators of the Constitution as defaulting trustees.
14. Any violation of oath of office by way of usurpation of power is the gravest of civic offenses. It is "treasonable usurpation upon the power and majesty of the people," as Alexander Hamilton correctly characterized any flouting of the people's fundamental law. ("Letters of Phocion," 1784: regarding violation of the New York Constitution.) Any such usurpation "is criminal and odious," as declared by President John Quincy Adams in his first annual Message to Congress (1825). Such condemnation of usurpation--either by misusing granted power, or by grasping power which has not been granted--is in keeping with The Federalist's denunciation of this most heinous offense by any public official as a defaulting public trustee, including especially any and every judge because especially charged with the particular duty of enforcing respect in practice for this basic law.
15. Just as the Constitution and its prescribed oath of office allow for no exceptions in requiring faithful support of this fundamental law by every official including every judge, so does the moral law permit no exception to its pertinent precept that the end does not justify the means--that an alleged good end can never justify resort to evil means. Usurpation by an oath-breaking judge (or by any other public official) is therefore, in effect, despite any "good intentions," anti-Constitution, anti-moral, anti-Rule-by-Law, anti-Republic, and anti-Liberty (Freedom of Man from Government-over-Man); it is utterly hostile to the security of the God-given rights of every Individual and to the principles of the Declaration of Independence. It is hostile to everything governmental for which America has stood traditionally.
To repeat, the foregoing considerations (in the numbered paragraphs)--presenting some essentials of the American constitutional system--reflect in substance the thinking of those who framed and adopted the Constitution, according to their pertinent writings (notably The Federalist) when judged on the basis of the requisite competence and intellectual integrity: free from any warping bias stemming from hostility to The Founders and their handiwork.
The foregoing points, considered together with the related portions of the text of The Federalist presented in a special section of the Appendix (pages 271-286, post), are sufficient to clarify the strictly limited authority and role of all judges--notably all the members of the Supreme Court--under the American philosophy and system of constitutionally limited government. (This is a principal subject of the present author's writings--separate and apart from this book--based upon many years of exhaustive research in this field.)
The critical importance--from the standpoint of the security of the people's liberties and of Posterity's just heritage--of the constitutional system's prohibition against the Judiciary's intruding into the field of political policy was emphasized in his Lectures in 1790-1791 by Justice James Wilson of the United States Supreme Court (who was one of The Framers) in these words:
"Nothing is more to be dreaded than maxims of law and reasons of state blended together by judicial authority. Among all the terrible instruments of arbitrary power, decisions of courts, whetted and guided and impelled by considerations of policy, cut with the keenest edge, and inflict the deepest and most deadly wounds."
The subject of limited government, under the Constitution, involves various important aspects other than those discussed up to this point; but, for present purposes, the foregoing will suffice to make clear some most important considerations, conducive to research by readers.
Before concluding this presentation of background material, there are two other topics which merit special mention because of their profound significance in relation to the traditional American philosophy--one in the religious realm and the other in the economic realm. They will be discussed briefly.