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Summer 1996
David Barton - 06/1996

The Runaway Branch

The government established by our Founding Fathers included unique provisions virtually unknown to other governments of that time. Of those provisions, the "separation of powers" between the branches was probably the feature which contributed most to America's becoming the world's longest ongoing constitutional republic.

Regrettably, much of that original plan, with its constitutional checks and balances, has been set aside in recent years. The result is that one branch—the judiciary—now regularly dominates the other two.

Creating Safeguards

The Founders' desire to separate and check power was rooted in the principle in Jeremiah 17:9: "The heart is deceitful above all things and desperately wicked; who can know it?" This verse encapsulated what Puritans, Calvinists, and others termed the "depravity of man"; that is, the unrestrained heart of man naturally moves toward moral and civil degradation. Society, therefore, would be much safer if all power did not repose in the same authority.

By utilizing the division of powers a wicked branch might be checked by the other two branches. As George Washington explained in his "Farewell Address":

A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power by dividing and distributing it into different depositories . . . has been established."

Alexander Hamilton similarly explained:

Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint. . . . [T]he infamy of a bad action is to be divided among a number than . . . to fall singly upon one.

The Founders attempted to avoid the consolidation of power in one branch; and the single branch they most feared of abusing power was the judiciary. For that reason, the Constitution secured the Founders' specific design that the judiciary be the weakest branch.

Weak by Design

This intent is confirmed by the Founders' numerous writings, especially in The Federalist Papers (described by James Madison as "the most authentic exposition of the heart of the federal Constitution as understood by the body which prepared it and the authority which accepted it"). In that work, James Madison first declared that in our government "the legislative authority necessarily predominates"; and then Alexander Hamilton explained that "the judiciary is, beyond comparison, the weakest of the three departments of power. . . . [and] the general liberty of the people can never be endangered from that quarter.

The judiciary could not endanger the liberty of the people because the Founders specifically withheld all policy-making powers from the courts. Furthermore, at the Constitutional Convention, they explicitly rejected all proposals allowing the judiciary to strike down laws or policies passed by the other two branches. As Thomas Jefferson later explained:

[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not . . . would make the judiciary a despotic branch. . . . [T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The Constitution has erected no such single tribunal.

A Redistribution of Powers

Today, that wise design has been ignored; the Supreme Court is no longer simply one branch among three but is now the "supreme" branch. In fact, in recent years, it has described itself as "a super board of education for every school district in the nation," "a national theology board," and amateur psychologists on a "psycho-journey."

Many of our current policies on criminal justice, education, morality, etc., are not the result of the legislature but rather the judiciary. Furthermore, in a number of recent cases, the courts have unilaterally reversed the outcome of direct elections by the people. For example:

  • In Missouri v. Jenkins, citizens voted down a proposed tax-increase; nevertheless, the courts ordered the tax to be levied;

  • In Compassion in Dying v. Washington and in Quill v. Vacco, courts overturned the election results of Washington and New York in which citizens forbade physician-assisted suicides;

  • In Yniguez v. Arizona, the courts overturned the vote by Arizona citizens that English be the official language of the State;

  • In Gregorio T. v. Wilson, the courts suspended the vote by California citizens to withhold State-funded taxpayer services from those who are illegally in the country; and

  • In Romer v. Evans, the courts overturned a constitutional amendment approved by Colorado citizens to forbid awarding special, rather than just equal, rights to homosexuals.

The Fundamental Principle

Such judicial decisions are violations of the fundamental principle of the Constitution—a principle articulated by President George Washington:

[T]he fundamental principle of our Constitution . . . enjoins [requires] that the will of the majority shall prevail.

Thomas Jefferson similarly stated:

[T]he will of the majority [is] the natural law of every society [and] is the only sure guardian of the rights of man.

This principle was so clear that it resulted in a direct declaration not only in the opening line of the federal Constitution ("We the People") but also in virtually every early State constitution: "All power is inherent in the people and all free governments are founded on their authority."

Despite the clarity of this constitutional truth, courts now regularly strike down policies authorized by the people and instead implement their own judicial policies. Yet, this tendency is not new.

Policy-making was attempted by the judiciary even during the early years of the Republic and has continued periodically since. However, contrary to current policy, in earlier years, judicial activism and policy-making often resulted in the recourse authorized by six different references in the Constitution: impeachment!

Using Impeachment

Succinct declarations by numerous Founding Fathers and early constitutional authorities (e.g., Alexander Hamilton, James Wilson, Joseph Story, George Mason, Luther Martin, Elbridge Gerry, William Rawle) confirm that if a judge began to act politically—if he disregarded the public interests, or directly affronted the will of the people, or introduced arbitrary power by attempting to become a policy-maker—impeachment was the remedy. In fact, in 1805, Chief-Justice John Marshall declared:

The present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment."

Interestingly, some argue today that to impeach judges for political acts violates the independence of the judiciary - that it makes the judiciary a "political" branch. However, no one can be so naïve as to assert with credibility that the current judiciary has not established itself as a political branch. In fact, in his stinging dissent in Romer v. Evans (which struck down a vote against preferential treatment for homosexuals), Justice Antonin Scalia accurately noted:

Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision. . . . Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans. . . . Striking it down is an act, not of judicial judgment, but of political will.

Since the judiciary is now a political branch, impeachment, rather than violating the independence of the judiciary, simply makes all public officials—including those unelected— accountable for the exercise of their official powers. As explained by Justice James Iredell (nominated to the Supreme Court by President George Washington):

Every government requires it [impeachment]. Every man ought to be amenable for his conduct. . . . It will be not only the means of punishing misconduct, but it will prevent misconduct.

Without a restraint over unelected judges, there is nothing to prevent judicial tyranny, oppression, or usurpation. As Thomas Jefferson wisely observed:

It should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent is absolute also. . . . Independence can be trusted nowhere but with the people in mass.

Without such restraints, Samuel Adams explained that the ultimate result to the people would be slavery:

[I]f the public are bound to yield obedience to [policies] to which they cannot give their approbation, they are slaves to those who make such [policies] and enforce them.

Because the people were not to become "slaves" to policies they did not authorize, the judiciary was not allowed to disregard or to set aside the will of the people and substitute its own. Unfortunately, because impeachment has been neglected, the warning of Thomas Jefferson has now become reality:

The Constitution . . . is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.

What to Do Now

The examples provided throughout our history for the use of impeachment should be observed today. Yet, why has this tool been neglected? Does the current Congress lack the will to make judges accountable? Definitely not.

In fact, many Congressional leaders indicate that there is a strong willingness, and even an overt eagerness, to limit and restrain overactive judges. Why, then, is impeachment not pursued? The simple answer: a current lack of public support.

For example, Congressional leaders recently called for the impeachment of Harold Baer, Jr., an activist judge who threw out concrete, irrefutable evidence (eighty pounds of seized cocaine accompanied by voluntary confessions from defendants) as well as verbally attacking police officers in general. That call for impeachment was vehemently and boisterously criticized both by judicial leaders and media columnists. While such opposition was not unexpected, what was surprising was that the Congressmen found little public support for their call to impeach. Very few among the grassroots rebutted the media's defense of activist judges (with letters-to-the-editor, calls to talk-shows, etc.).

The Congress needs to feel it has a mandate from the people before it is willing to subject itself to what it knows will be harsh media criticism. Therefore, it is time that we citizens become informed not only about the use of impeachment - that is, what constitutes legitimate grounds for impeachment and how that process occurs - but also knowledgeable about the most prominent runaway judges. As Thomas Jefferson explained:

I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them but to inform their discretion by education. This is the true corrective of abuses of constitutional power.

Once we have "informed our discretion by education" on this issue, we must begin to speak out and educate others and then urge our Congressional Representatives to take action. To help achieve these objectives, we have prepared a new book: Impeachment! Restraining an Overactive Judiciary. This book provides a full historical examination of this important tool (including scores of quotes by our Founding Fathers) and also provides concrete suggestions on how citizens can help the process move forward. (To order this new resource, use the order form at the center of this newsletter.)

It is time to reassert the power of the people!

Food for Thought, Matthew 4:12
Remember to Say "Thank You!"

The Bible says that one of the ungodly characteristics of the end times is that people will be "unthankful" (2 Timothy 3:2). We certainly do not want to be included in that description.

Rather, we want to be thankful and express thankfulness (see Proverbs 3:27). One such opportunity to do so involves many Godly Congressmen—particularly those in the 1994 Freshman class—who have worked long and hard this session for pro-family values of faith and freedom.

Regrettably, their diligent efforts on our behalf and on many important issues have not only been strongly criticized by the media, but have apparently gone unnoticed by many of those who should be the most appreciative. In my recent conversations with such leaders, they have expressed their dismay, and even their discouragement, over having so infrequently received encouragement from God-fearing, moral Christians.

It is a distressing characteristic of human nature that we write or call if angry or upset at them, but too often remain silent while they courageously stand for the right. Let's not participate in the attitude of the "end time" by being ungrateful; rather, let us take time to express our appreciation.

Remember to write your Representative and Senators when they stand for Biblical values, and let them know how grateful you are and that you are praying for them and their families; they will be greatly encouraged. (Their address is: Name of your Representative, U.S. House of Representatives, Washington, dc 20515; Name of your Senator, U.S. Senate, Washington, dc 20510.)

A Word to the Wise

Many citizens wrongly believe that the upcoming election is primarily to select our next President. Consequently, many Christians - vocally criticizing both major candidates - have threatened not to vote. This would condemn to defeat many Godly candidates in the down-ballot races (e.g., federal and State Representatives and Senators, judges, school boards, etc.). Therefore, make sure you vote in November - regardless of how you feel about the Presidential candidates. As Founder John Witherspoon reminded us:

Those who pay no regard to religion and sobriety in the persons whom they send to the legislature of any State are guilty of the greatest absurdity and will soon pay dear for their folly.

Out of Control!

The American judicial branch is out of control, illegitimately dominating both the executive and legislative branches. David Barton's book Restraining Judicial Activism (formally titled Impeachment) reveals how the Founding Fathers restrained overactive courts through the constitutional tool of impeachment. We can do the same today. Order your copy of Restraining Judicial Activism for only $6.95 from our online store. This is a must read for friends, family, and elected officials.

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