The primary purpose of the federal judiciary is to make sure that anything the federal government does is almost never, ever, ruled to be unconstitutional. This is Hamilton’s constitutional regime. A believer in unlimited government, Alexander Hamilton’s constitutional belief was that the constitution can and should be used as a rubber stamp on unlimited government — as long as the government is run by “well behaved” politicians like himself, he insisted. His political nemesis, Thomas Jefferson, took the opposite view that the government needed to be “bound by the chains of the Constitution.”
Andrew Napolitano pointed out in his book, The Constitution in Exile, that the federal government’s “supreme” court did not rule a single federal law to be unconstitutional from 1935 to 1997. The eighteenth- and nineteenth-century Jeffersonians warned that if the day ever arrived that the federal government, through its judiciary, would be the sole arbiter of constitutionality Americans would then live under a tyranny. That judicial tyranny was cemented into place in April of 1865 with the destruction of the rights of nullification and secession and the evisceration of the Tenth Amendment – the real purposes of the “Civil War.”
The latest example of our bullying and tyrannical federal judiciary is Chief Justice John Roberts’ nasty rebuke of President Trump’s recommendation of impeaching a federal judge who issued one of those Stalinist-sounding federal judicial “decrees” saying that the president has no authority to deport illegal aliens who have committed such felonies as rape and murder, as he did with over 200 members of a notorious El Salvadoran criminal gang.
Americans – and American presidents – were not always bullied by black-robed totalitarians. They once understood that there are three branches of the federal government, not just the judicial branch, and that federal judges are not black-robed deities. President Andrew Jackson, who President Trump apparently reveres, is a good example of such a president. After Chief Justice John Marshall “ruled” in 1819 (McCulloch v. Maryland) that the Second Bank of the United States (BUS), a precursor of the Fed, was constitutional despite not being one of the delegate powers in Article 1, Section 8, and despite its being voted down during the constitutional convention, Jackson voiced his disagreement by vetoing the recharter of the BUS in 1832.
Paying “solemn regard to the principles of the Constitution,” Jackson said in his veto message, he had “come to the conclusion that it (the BUS) ought not to become a law . . .” The BUS, in his opinion, was incompatible with justice, sound policy, and “the Constitution of our country.” Its grants of “almost a monopoly of the foreign and domestic exchange” had increased the value of its stock (The BUS was 80 percent privately owned, 20 percent government owned) so much that a few hundred stockholders had become very wealthy by it, he said. As to Marshall’s opinion that the bank was constitutional, President Jackson simply said, “To this conclusion I cannot assent.”
He mocked Marshall’s theory that mere precedent – the existence of the BUS – established its constitutionality. A slavish follower and worshipper of Hamilton, Marshall here repeated Hamilton’s totalitarian-minded theory that whenever government does something that is unconstitutional, the fact that it did that thing magically makes it constitutional! No constitutional amendment is needed!
Stating the common understanding of all Americans outside of Marshall and his nationalist comrades in the legal profession, Jackson explained the truth about constitutional interpretation that “The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution.” To that Jefferson would have added “the people of the free and independent states” as he called them in the Declaration of Independence. “The authority of the Supreme Court,” Jackson continued, “must not, therefore, be permitted to control” the other two branches.
When Jefferson debated Hamilton on the constitutionality of a national bank run by politicians Hamilton based his argument on the “Necessary and Proper” clause of the Constitution. Jefferson’s response was that the country already had banks, so a national bank run by politicians was not “necessary and proper” but only convenient for the political class.
Arrogant and totalitarian-minded federal judges, educated in America’s hopelessly left-wing, socialist law schools have issued dozens of dictatorial “rulings” that attempt to stop President Trump from following through on his campaign promises. He has every right to ignore them, as Andrew Jackson did, and so should governors of the free and independent states when these same black-robed tyrants seek to impose even more governmental tyranny and mayhem on their states.
