A Rasmussen poll conducted in July of this year found that 33% of Americans now believe it is time for the states to openly defy the federal judiciary – that was a nine percent increase from its previous polling just four months earlier.
The reason for such a huge number of Americans holding this view is because the federal judiciary continues to behave lawlessly. The latest opinions on Obamacare and homosexual marriage have fueled the fire of discontent. When such injustice and immorality can be decreed to be just and moral by the mere whims of a court’s opinion – the credibility of the court is destroyed.
And men understand and realize such tyrannical acts must be resisted.
Judicial Supremacy v. Constitutional Supremacy
The federal judiciary has long built this fiction that they are the sole and final arbiter of what is constitutional or unconstitutional. They base this upon the Supremacy Clause which is Article 6, paragraph 2 of the U. S. Constitution. They claim that Article 6, paragraph 2 grants the Supreme Court supremacy to determine whether laws are constitutional or unconstitutional.
Funny thing is – when one actually takes time to read Article 6, paragraph 2, they realize that the Supreme Court isn’t even mentioned. In fact, federal courts aren’t even mentioned. What is mentioned – and is declared to have supremacy – is the U. S. Constitution itself and all laws made in accordance therewith.
In other words, America’s founders did not establish judicial supremacy as the Supreme Court is wont to assert (and thereby usurp all other branches of government) – rather they established constitutional supremacy.
All magistrates in America – whether federal, state, county, or local – did not take an oath of subservience to the federal government nor the federal judiciary. Rather, they took an oath to uphold the U. S. Constitution.
True federalism understands that all magistrates – whatever their level or sphere of jurisdiction – possess lawful authority. And that whenever one branch of government begins to play the tyrant – all other branches (whether federal, state, county, or local) have the duty then more than ever to uphold the Constitution and oppose that branch acting tyrannically – even if that branch is the Supreme Court.
Jefferson’s Words of Warning
Some I know try to tell me that this “fiction” I speak of was created by the Supreme Court about 200 years ago and if it was so bad – why didn’t men speak against it back then? The truth is good men have spoken and written against it for the last 200 years.
In fact, back when the fiction was first created, Thomas Jefferson – amongst others – spoke extensively against it. He wrote to William Jarvis on September 28th, 1829: “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
Jefferson wrote to Charles Hammond on August 18th, 1821: “The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”
Jefferson wrote to A. Coray on October 31st, 1823: “At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance.”
Jefferson’s words of warning (and others) have gone unheeded. The federal judiciary is an oligarchy – a lawless, corrupt, oligarchy.
A Fiction – The Supreme Court is the Sole and Final Arbiter
The U. S. Constitution nowhere declares the Supreme Court, nor any federal court, to be the sole and final arbiter of what is constitutional or unconstitutional – it is a fiction created by the Court itself. A fiction promulgated by lawyers.
Again – true federalism understands that all magistrates – whatever their level or sphere of jurisdiction – possess lawful authority. And that whenever one branch of government begins to play the tyrant – all other branches (whether federal, state, county, or local) have the duty then more than ever to uphold the Constitution and oppose that branch acting tyrannically – even if that branch is the Supreme Court.
The states are not mere provinces of the federal government – they possess lawful authority. Not only should the states interpose against lawless, immoral, unjust, unconstitutional judicial opinions – but they have a duty to interpose.
James Madison, known as the architect or father of the U. S. Constitution, stated that when the federal government acts outside its constitutional limits, “…the states who are parties thereto [parties to the U.S. Constitution], have the right, and are in duty bound, to interpose for arresting the progress of evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.”
The duty of states is not to glibly obey while the federal judiciary and federal government take the whole nation over the side of the cliff – rather their duty is to interpose against the evil. May we rally our lesser magistrates to do exactly that.
Matthew Trewhella is the pastor of Mercy Seat Christian Church (MercySeat.net). He and his wife, Clara, have eleven children and reside in the Milwaukee, Wisconsin area. You can obtain his book The Doctrine of the Lesser Magistrates: A Proper Response to Tyranny and A Repudiation of Unlimited Obedience to Civil Government at Amazon.com or by going to the websites www.DefyTyrants.com or www.LesserMagistrate.com.