Many conservatives hold conflicting positions about dealing with illegitimate federal court rulings. They blast rulings from the high courts as unconstitutional, illegal, and improper, while stating the other branches of government must follow these rulings.
Conservatives watched in disbelief, for example, as federal courts ruled that President Trump’s treatment of foreign nationals was unconstitutional. Considering the seven applicable federal statutes, the president was on the firmest legal footing with three separate executive orders limiting immigration from countries that pose a national risk. While the Supreme Court months later upheld parts of these travel bans, this was just the latest example of a more central problem: lawless judges using their position to launch political attacks that slow or halt conservative policy.
The Supreme Court usurping legislative power by rewriting the Obamacare “tax” and creating a right for homosexual couples to marry in Obergefell v. Hodges make clear the highest court of the land rejects any notion of judicial restraint. Some conservatives claim that nothing can be done as a direct response to improper rulings. After every ruling, they reiterate that federal courts and the Supreme Court are the final adjudicator on constitutional matters, that their rulings are final and must be upheld no matter their lack of legal reasoning.
The belief in the finality of federal judicial decisions runs contrary to our earliest descriptions of the judiciary. In 1788 Alexander Hamilton detailed the power of the judicial branch.
The Limits Alexander Hamilton Understood for Courts
One of the early objections to the Constitution was the role it outlined for the judiciary. Many antifederalists withheld their support for this new governing document until a better description of the power of the judiciary was provided. An antifederalist using the pseudonym Brutus published an essay in 1787 concerning the power the Constitution provides the judiciary.
“There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself,” he writes in Anti-Federalist 15.
Many Americans share this concern today. Brutus believed the judiciary would possess unchecked power to affect laws, which would give them power over the legislature, and, therefore, the people themselves. Hamilton responds in Federalist 78 by explaining the judiciary’s lack of power: “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments,” he writes in Federalist 78.
Hamilton states judgements from the judiciary must be legally sound, and that the court’s entire judicial power rests on the acceptance of their judgements. The inverse is also true. If their judgements are not legally sound, they will not be accepted. The courts have neither “the sword or the purse,” “neither force nor will.” The judiciary has no power to enforce their rulings, ensuring the soundness of their judgements. The court’s reliance on the “executive arm” safeguards the public from improper rulings imposed upon them from a rogue court.
Federal judges take an oath to uphold the Constitution. So do legislatures, and so does the president. Are they to break their oaths to uphold what is constitutionally sound because a federal court has issued a ruling? The real question is, “Is the judicial branch the only branch that is given the responsibility to determine constitutionality?” The answer should be obvious.
The Idea of Judicial Review
The seminal case of judicial review is Marbury v. Madison. In that ruling, John Marshall sets the precedent of the courts declaring an act of the legislature unconstitutional. Should courts be able to deem a certain law unconstitutional? The answer was actually provided well before the 1803 Marbury v. Madison ruling. In 1788, Hamilton explained that determining constitutionality of legislation is a proper function of the court:
It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Federalist 78
The courts are to be obligated to the Constitution over an act from the legislature if the two come into conflict. Therefore, if an injured party comes before a judge with a situation where the legislature has acted unconstitutionally, the judge is bound to follow his oath to uphold the Constitution. Does this make the judiciary superior to the legislature? Again, Hamilton provides the answer:
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental (emphasis added). Federalist 78
The Constitution is the legal representation of the “laws of Nature and of Nature’s God” laid out in the Declaration of Independence. No law the legislature enacts can take precedent over the Constitution.
The same can be said about unconstitutional court rulings. When a president or legislature is faced with a dilemma of following a ruling they know has no constitutional basis or follow the actual constitution itself, they should heed Hamilton’s advice. Follow the law that is fundamental, the law that has its foundation in natural law, rather than simply coming from the mind of a few jurists.
Unconstitutional Court Rulings Happen Aplenty
Some of the most egregious court rulings in our nation’s history have contributed to the horrific treatment of African Americans. One of the most significant causes of the Civil War was the Dred Scott v. Sandford ruling in 1857. Roger Taney, writing the opinion of the court, proclaimed that Dred Scott could not be recognized as a citizen of any state. With this ruling the court sent the message to abolitionists that there was no path to end slavery through the political system.
If President James Buchanan and the 35th Congress had stated that they had no intention of following a Supreme Court ruling that violated the very natural law of liberty that ungirded the entire U.S. Constitution, Congress would have felt added pressure to find a political solution, and the nation may have avoided the Civil War. This ruling allowed Congress to shift responsibility to the court and thus enshrined the deplorable continuation of slavery until more than 600,000 Americans lay dead.
Another example of the court setting back rights for African Americans was the Plessy v. Ferguson ruling in 1896. Even though the Fourteenth Amendment with its Equal Protection Clause had been ratified in 1868, the court found that the Louisiana law separating blacks from whites was constitutional. This ruling legitimized the Jim Crow laws of the South.
Instead of a president or a subsequent Congress repudiating this decision, the nation waited until Brown v. Board of Education in 1954 for the court to correct their outrageous decision. If the president is sworn to uphold the Constitution, why would he use his power as the chief executive to enforce a court decision that clearly violates the Constitution?
The decision to take on the legitimacy of a federal court ruling should not be made lightly. There must be a clear violation in the decision that the president articulates. This criteria would be met with any of the recent court rulings limiting the president’s power to curtail immigration. Congress should also move to limit the court’s jurisdiction over matters that involve immigration policy, per the Constitution’s Article III Section 2. While this is redundant considering the courts have no jurisdiction in many of these cases, this would place the judiciary on notice that their violations of clear legal precedent will meet swift action.
Objections to Following the Constitution Don’t Square
Those who reject Hamilton’s view often state that ignoring Supreme Court rulings could lead to anarchy. Then the Left would ignore rulings they don’t agree with and the nation would head toward lawlessness.
We are already at a time where the Left doesn’t abide by federal law. The sanctuary cities all over the country are great evidence of the Left’s lack of respect of federal law. At this point the Left can and does undo any legislation in such ways, so lawless court rulings mute election victories for the Right. The electorate gave Donald Trump the presidency in part to deal with the illegal immigration problem, but unlawful decisions from federal courts have made his ability to institute his policies nearly impossible.
Daniel Horowitz argues the courts are “irremediably broken,” that there is no correcting this shift to the Left. Those who reject defying unconstitutional court rulings do not have a valid solution. Their first response is to call for nominating better judges. This answer is feeble at best, and a red herring at worst.
As law schools shift further and further to the Left, it is increasingly difficult to find judges that interpret the Constitution in accordance with its original intent. Nominating originalist judges has proven a difficult task for even the most conservative of presidents. President Ronald Reagan nominated Anthony Kennedy to the Supreme Court. Kennedy wrote the opinion creating a right to marriage for homosexual couples in Obergefell v. Hodges, a right which has no constitutional precedent.
Impeachment and constitutional amendments have proven to be futile. There is yet to be a successful example of an impeachment of a Supreme Court justice, and a constitutional amendment stripping the court’s power could be years, maybe even decades away. Every day the country is bombarded by erroneous federal court rulings that dismember the Constitution. Conservatives must rally around a response to these assaults of our political system or even when they win elections they will never be able to institute their agenda.
Stop Talking, and Start Acting
If America continues to allow the judiciary to act outside of its proper role in government, the country will continue to fall away from its constitutional foundation. Every summer Americans sit with bated breath, waiting to see what parts of the Constitution remain intact after that year’s Supreme Court decisions.
Conservatives write article after article detailing the damage done by these rulings. These commentators lament the state of the judiciary, and declare that we need better judges. Then nothing changes and the following year the scenario plays itself out again.
Hamilton has prescribed a solution that could begin tomorrow. The judicial branch must be held accountable for its rulings. The president and congress must force the judiciary to base their rulings in the Constitution.
Federal court rulings have authority only if they are grounded in the Constitution. The branch Hamilton called “beyond comparison the weakest of the three departments of power” must be forced to operate within its constitutional constraints, or the country will move closer toward being ruled by a judicial oligarchy.
