OPINION: Good Speeches Are Not Enough To Combat Judicial Tyranny

Alan Keyes Former Assistant Secretary of State
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Conservatives always claim that they favor “strict construction” of the U.S. Constitution. I assume that this means that it should be construed according to its terms. 

This as distinct from inferential mazes of thought that take its words as the starting blocks for conclusions that run entirely against their meaning — as well as the premises and principles from which the people of the United States derive their authority to define and limit their government’s powers. 

This week, Attorney General Session’s gave a speech at the Heritage Foundation in which he strove to articulate his concern about contemporary “judicial activism.” He warned against court actions that “deeply compromise the work of the Executive Branch.”

As is often the case, he offered his critique in view of the damage done to the energy and coherent responsibility of the Executive when “a single trial judge with limited geographic responsibility issues an order binding the entire country and [he] accused courts of taking cases they have no power to hear.”

I found myself wondering what Constitutional language defining the Supreme Court’s jurisdiction the attorney general had in mind. Though the inferior courts of the Federal Judiciary are, for administrative purposes, regionally defined, they are established by law on the strength of constitutional language that vests them with “the judicial power of the United States.” 

The cases to which that judicial power extends are described in Article III, Section II of the Constitution. It gives the Supreme Court “original jurisdiction” in some cases. But it is nowise clear that this implies any geographical restriction on the scope of judicial power exercised by the inferior Federal Courts.

So, the inferior courts appear to have warrant to exercise the whole judicial power vested in the Supreme Court, unless some restriction is specified by law. Isn’t this the very reason why the Supreme Court has the prerogative to review and overturn the judgment of the inferior courts? 

They act, as it were, as agents or representatives of the Supreme Court. So their actions are subject to review and revision by the body whose reach they extend, for practical purposes, but without impairing the essentially national scope of the judicial power the Constitution allocates.

If the parties involved in a case represent people, business corporations or other interests that operate on a national scale, why should the power to grant injunctive relief while a case is being tried be geographically more limited in scope? 

The law that allows the lower courts to hear the case must surely allow them to decide what steps are needed to limit such prejudicial damage as might nullify the practical effect of their judgment on the parties involved.

Attorney General Sessions, however, rightly objects to the presumption that the courts can dictate Executive policy on any scale beyond that of the particular case before them, and the parties directly involved in it.  Broad judicial actions that purport to govern matters beyond that particular case usurp Executive responsibilities with no general warrant in the Constitution for doing so.

But this reasoning requires that we question the assumption—these days taken for granted—that the Supreme Court (and therefore the inferior courts whose actions represent its power) somehow has the power to make judgments of universal import. 

But where does the U.S. Constitution grant any such universal power to the court? How could it do so without fatally impairing the separation of powers, and the due accountability it exists to facilitate?  

Shouldn’t a strict construction of the Constitution focus on this point, especially when courts are seeking to impose judgments contrary to what the President of the United States deems necessary and appropriate for the good administration of the government, and the security and safety of the nation it serves? 

When it comes to preserving the prerogatives of the Executive against encroachment by the Judicial Branch, it makes no sense to rely on the Judiciary to be the judge of its own cause. Since it makes no sense, due respect for the authors of the Constitution (its Framers and the people as a whole who ratified it) forbids us to think they did so. 

What recourse is there, then, against judicial overreach?

First, the Executive must make an issue of it. This is not just a matter of words, but deeds.  Each branch has chief responsibility for the use or abuse of the power vested in the body that wields its power. 

In the Executive branch, it is vested in the person of the President of the United States. When and if the Judiciary demands that the president surrender responsibility to them, he not only has the right, he has the duty to refuse if compliance will violate his oath.

Some may bridle at this idea as if it countenances some violation of the law. But the Constitution is the Supreme Law of the Land. When the president defends his prime responsibility for the use of Executive power, he is seeking conscientiously to abide by that law. In a dispute with the Supreme Court, its judgment does not automatically prevail over his, except in the particular case. 

Even then, if the consequences of deference must have, in the president’s judgment, broadly harmful consequences for the nation,  inconsistent with its defense, tranquility, liberty or other aims the people have declared for the Constitution of their self-government, what choice is there but to do what his judgment requires, though it be contrary to the judgment of the Court? 

For in the Constitution’s view, the whole Executive power is the responsibility of the president, for which he stands accountable to the people as a whole and their representatives. 

This is not a warrant for tyranny.  The power to impeach and remove the president, held in trust by the representatives of the people in Congress, may properly be deployed to curtail tyrannical abuses. The Court may signal, by its particular judgments, the need for Congress to act. 

But the judiciary has no Constitutional warrant to usurp either Executive or legislative power in a bid generally to enforce its will. That the people ought to oppose as judicial tyranny—which a proper reading of the Constitution makes it easier to impeach and excise than that of the Executive branch.

All this points to the fact that a president would be well-advised to alert the nation to judicial overreach by refusing to submit to it.  Speeches that decry its ill effects are better given in the halls of Congress, as the body responsible for policing the energy and effectiveness of the nation’s executive power moves to prevent would-be judicial tyrants from debilitating and destroying both.

Dr. Alan Keyes is a political activist, prolific writer, former diplomat, and the founder of LoyaltoLiberty.com

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.