Judges Are Not Special Guardians of the Constitution

Judges are vexed at the Trump administration’s lack of deference.

One hundred fifty retired state and federal judges recently signed a letter condemning the administration’s spats with the judiciary. Prepared by the Society for the Rule of Law, a Never-Trump organization formed by self-described “conservative lawyers and jurists,” the letter accuses the administration of myriad efforts to “intimidate and threaten the judiciary.” Such efforts will fail, the signatories assert, “because the American people trust judges as guardians of the Constitution and the Rule of Law.”

Such a lofty role for the judges is a modern invention.

Americans at the time of the Revolution did not deify judges as we do today. As the American colonists formed new state constitutions, they understood that the legislature and executive could act in dangerous extra-constitutional manners.

The people did not look to the courts to protect them from unconstitutional enactments. Instead, the people believed that the best security would be internal safeguards such as bicameralism, delaying veto, term limits, frequent elections and juries. And while not all these safeguards appeared in each state constitution, some combination of them did.

Moreover, as pointed out by historian Gordon Wood, “the early constitution-makers had little sense that judicial independence meant independence from the people.” Juries were especially sacrosanct bodies and could not be overridden by a judge even if the judge believed the jury’s decision was against the greater weight of the evidence.

Judges were often relegated to deciding pretrial motions and other ministerial matters. In the words of Thomas Jefferson, written shortly after penning the Declaration of Independence, judges should be “a mere machine” when performing their duties. If judges took actions tending to undermine customary rights or republican government, citizens expected that the jurors would check them by ignoring or overturning the judges’ opinions and determinations.

Eventually, Americans accepted that principles of popular sovereignty established the judiciary as a co-equal branch of government. But judges were not transformed into special “guardians of the Constitution.” Yes, they could review certain decisions of the coordinate branches and overturn executive or legislative actions, but their word was not the final say on the Constitution nor the powers of the other branches.

Writing to Abigail Adams in 1804, Jefferson summed up this commonsense constitutionalism as follows: “That instrument meant that its co-ordinate branches should be checks on each other. But the opinion which gives to judges the right to decide what laws are constitutional, and what are not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch.”

Jefferson realized that the coordinate branches would occasionally disagree on matters of constitutional interpretation. Rather than any one branch having the power to decide for the others or serve as a special guardian, he envisioned the people acting through the ballot box or in convention to make the final decision.

But didn’t Chief Justice John Marshall state in Marbury v. Madison (1803) that “it is emphatically the province of the judicial department to say what the law is?” He did. But it was not until modern times that these words were interpreted to mean something outside Jefferson’s understanding as expressed to Adams.

As Charles F. Hobson, the editor of “The Papers of John Marshall,” has noted: “For nearly a century after the decision, Marbury was almost always cited in connection with issues of original jurisdiction … not as authority to pronounce laws unconstitutional.” Yale Law School’s Akhil Amar has also observed that “not until the late twentieth century did the Court begin to describe itself as the ‘ultimate interpreter’ of the Constitution.”

Of course, even if we accept the judiciary as special guardians of the Constitution, they deserve the Trumpian apprentice treatment of “you’re fired!” The judges have stretched the Constitution beyond recognition. The “few and defined” federal powers James Madison wrote about in The Federalist have become numerous and indefinite powers under judicial interpretation. The courts serve as continuous constitutional conventions, twisting and molding the Constitution to support a European-style unitary state. The federation created by the framers has been rejected by judges who claim supreme authority over American law.

In sum, the Society of the Rule of Law gets judicial power wrong. But even if the Society was right, it’s laughable to claim that Americans should “trust” the judges considering their long track record of selling out American first principles of limited government.