5 Judicial Myths

David Barton

Despite what we hear today . . .

1. The Judiciary is Not a Co-Equal Branch of Government
2. Federalist #51: “the legislative authority necessarily predominates.
3. Federalist #78: “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will. . . . The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. . . . [T]he 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.
4. Congress determines the operation of the Judiciary, not vice versa (Congress sets the number of judges and courts; what issues may come before the courts; judges’ salary and compensation; how often the courts meet and the length of their sessions; and just as Congress can establish and set the number of lowers courts, so, too, can Congress also abolish them; etc.)
5. The Judiciary is Not to be an Independent Branch of Government
6. John Dickinson, signer of the Constitution: “[W]hat innumerable acts of injustice may be committed – and how fatally may the principles of liberty be sapped – by a succession of judges utterly independent of the people?
7. Thomas Jefferson: “It should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent is absolute also; in theory only, at first, while the spirit of the people is up, but in practice as fast as that relaxes. Independence can be trusted nowhere but with the people in mass.
8. Nathaniel Chipman, office in the Revolution, early Member of Congress, U. S. federal judge, Chief Justice of Vermont Supreme Court: “If the judges are made thus independent . . . they will become a dangerous body.
9. The Judiciary is Not the Sole Branch Capable of Determining Constitutionality
10. James Madison: “But the great objection . . . is that the Legislature itself has no right to expound the Constitution – that wherever its meaning is doubtful, you must leave it to take its course until the Judiciary is called upon the declare its meaning. . . . I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits.
11. Elbridge Gerry, signer of the Declaration and a framer of the Bill of Rights: “It was quite foreign from the nature of [the judiciary’s] office to make them judges of the policy of public measures.
12. Luther Martin, framer of the Constitution and Attorney General of Maryland: “A knowledge of mankind and of legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature.
13. Federal Judges do Not Hold Lifetime Appointments
14. The Constitution says that judges hold their office only during “good behavior” (Art. III, Sec. 1).
15. Federal judges may be removed by Congress for misbehavior, which, historically, did not include only criminal behavior but also other misbehavior.
16. Historically, federal judges have been removed from the bench by Congress for contradicting an order of Congress, for profanity, for rude treatment of witness in a courtroom, for drunkenness, for judicial high-handedness and a variety of other reasons.
17. The Purpose of the Supreme Court is Not to Protect the Minority from the Majority
18. George Washington: “[T]he fundamental principle of our Constitution… enjoins [requires] that the will of the majority shall prevail.
19. The primary purpose of the Bill of Rights is not to protect the minority from the majority; the purpose of the Bill of Rights is to protect every citizen, whether in the minority or the majority, from the intrusion upon their rights by government.
20. Thomas Jefferson: “When the Legislative or Executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them [the people] 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.