by Steve McCann, American Thinker:
Recently a gaggle of rogue U.S. District Court judges have issued numerous restraining orders and opinions aimed at curtailing, and in some cases overturning, the constitutional authority of President Trump as the head of the executive branch of government. There have been a series of court orders that rival the most egregious judicial decisions in American history, virtually all of which dramatically undermine constitutional separation of powers as well the sovereignty of this nation.
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What the country is witnessing is the culmination of many decades of ever-expanding judicial activism and the cowardice of the Congress to exert its prerogative to rein in this runaway usurpation of political power.
The matter of the supremacy and influence of the Judiciary in a representative republic has been an issue of contention since this nation’s inception as the Founders, while brilliant in their overall concept of government, erred greatly in the creation of an unaccountable judiciary by relying on a factious Congress to serve as a check and balance on a co-equal branch when necessary.
A major debate during the constitutional ratification process in 1788 concerned the structure, power, and control of the Judiciary. The issue was twofold: 1) the degree of independence and the level of accountability of federal judges and 2) Judicial review of laws and statutes passed by Congress.
This prompted Alexander Hamilton (a staunch defender of the current system), using the pseudonym “Publius” to write in Federalist Paper No. 78 that the Judiciary would be the weakest of the three branches as it would not be able to overpower the Congress, since it controlled the purse strings and the President controlled the enforcement of the court’s decisions.
Thus, the courts would have to depend on these branches to uphold their judgements. Further, federal judges must have life tenure and thus independence; however, Congress could remove a sitting judge via impeachment for high crimes and misdemeanors. He also argued that the courts should be tasked with the duty of reviewing statutes passed by Congress to determine if they are consistent with the Constitution as a means of restraint on the legislature. Hamilton further stated that because of the court’s inherent weakness in enforcing their judgements, the possibility of corruption affecting judicial reviews would be a non-issue.
Countering Hamilton’s argument was Robert Yates, using the pseudonym “Brutus” in the Anti-Federalist papers, who contended that his primary concern was that judges would substitute their will for the plain text of the Constitution. He wrote:
There is no power above them [the Courts] 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.
Thomas Jefferson, a staunch opponent of a powerful central government, also recognized the potential abuse of power by an out-of-control Judiciary and a recalcitrant Congress. In a letter to a Mr. Jarvis in 1820 Jefferson wrote:
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