By CHRISTOPHER MANION
For many years, the Federal Judiciary was called “the least dangerous branch.”
Today, it might be our only hope.
In 1787, Alexander Hamilton, James Madison, and John Jay wrote The Federalist Papers, a collection of newspaper columns designed to persuade the People of New York to approve the Constitution that the Founders had adopted in Philadelphia. At the time, New York voters were preparing to vote on delegates who would meet in their state convention to ratify or to reject the text.
The vote was “a close run thing,” as the Duke of Wellington described the Battle of Waterloo twenty-seven years later. However, after over a month of deliberation, New York delegates successfully ratified the text by a vote of 30-27.
One key argument in The Federalist was written by Alexander Hamilton. At the Philadelphia convention earlier that year, Hamilton had been an advocate of a strong central government. In New York a great many voters were more interested in limiting that government than in granting it more powers. That sentiment prevailed in many state conventions considering the Constitution in 1788, and their demands led to the adoption of the Bill of Rights to the Constitution by the First Congress four years later.
In Federalist Paper n. 78, Hamilton writes:
“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.”
To our twenty-first century ear, that rings somewhat quaint. But Hamilton insists: the Federal Judiciary “will be least in a capacity to annoy or injure them.”
Consider, says Hamilton: “The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.”
Regulated indeed. Yesterday’s “Birth of a New Nation” is today’s — and every day’s — birth of a new regulation. The Executive’s “sword” has hardly been beaten into a plowshare.
Hamilton continues to comfort us:
“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, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
Enter Marbury —
And Judicial Power
“No influence”?
Well, that didn’t last long. In Marbury v. Madison (1803), a decision that outraged newly elected President Thomas Jefferson, Chief Justice John Marshall proclaimed the principle of “judicial review,” which established a profound shift in the “checks and balances” that James Madison describes in Federalist n. 51:
“TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”
With Marbury, that “partition” changed profoundly. But not all at once. In fact, for our purposes, the role of the Federal Courts “matured,” so to speak, along the lines described by New York Gov. Charles Evans Hughes.
In 1907, Hughes, who later became chief justice of the Supreme Court, spoke to the Elmira Chamber of Commerce. “We are under a Constitution,” he said, “but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.”
In 1958, Chief Justice Earl Warren, writing for a unanimous Court in Cooper v. Aaron, made Hughes’ dictum “the supreme law of the land” (so much for Article VI of the Constitution).
As his ultimate authority, Warren quoted Chief Justice John Marshall in Marbury: “it is emphatically the province and duty of the judicial department to say what the law is.” Warren declared the principle to be “a permanent and indispensable feature of our constitutional system.”
We recall how, in the 1930s, several pieces of FDR’s New Deal legislation were challenged by the Supreme Court — until he threatened to expand the number of sitting Justices.
The Court succumbed.
Picking up where FDR left off, the Warren Court expanded and exacerbated a long and painful trend toward a more secular, more materialist, and more socialist future for our country. Since the 1950s, the Court has banned the Bible and prayer from the public square, destroyed the protections for the family that existed not only before the Constitution but long before Magna Carta, and orchestrated the murder of sixty million unborn Americans.
Dobbs V. Jackson Women’s Health Organization
The power of the Court was welcomed by the Left, as with each new decision our freedoms were diminished.
This march toward oblivion prevailed until 2021, when the Supreme Court regained its constitutional sensibilities. Now the Court had its eye on limiting Hamilton’s “strong central government,” not expanding it.
And restoring those limits is our nation’s first priority. For the past two years, the most pro-abortion president in history has allowed the Executive Branch to run wild, competing with the radical 117th Congress to further the Left’s lawless agenda. The nation’s self-anointed “elites” cheered them on.
And then came the Court’s June decision in Dobbs v. Jackson Women’s Health Organization.
The Left had seen it coming. In the wrong hands, the Court might be the most dangerous branch to the Left after all. It might restore the Tenth Amendment, a move that might ultimately lead to a death sentence for the Deep State.
That’s why Senate Majority Leader Chuck Schumer (D., N.Y.) told MSNBC two years ago that he supported not only filling Federal judicial vacancies more quickly, but also expanding the number of judges at the District and Circuit Court level.
Schumer was reluctant to endorse outright the notion of packing the Supreme Court; others have been less reticent.
Last May, when Justice Alito’s majority opinion in Dobbs was leaked to the leftist press, Sen. Ed Markey (D., Mass.) raided the epithet factory to declare that “a stolen, illegitimate, and far-right Supreme Court majority appears set to destroy the right to abortion, an essential right which protects the health, safety, and freedom of millions of Americans. There is no other recourse. We must expand the court.”
But that hasn’t happened — yet. And, in the meantime, countless appeals have already been filed in Federal Courts to repeal many of Biden’s tyrannical Executive Orders, and many have already been reversed (on masks, vaccinations, Title 42, DACA, and more).
As Notre Dame Con Law prof Paul Bartholomew told the class in 1966, “The Supreme Court has the last guess.”
Yet we know just how hard it is to bring a Federal lawsuit. It’s often the last resort, when all else has failed. It is a costly, time-consuming, lengthy, and ultimately exhausting enterprise.
Consider one illegal Executive diktat alone: Obama’s HHS Contraceptive Mandate. Combatting that single attack cost Catholic and other pro-family organizations legal fees of tens of millions of dollars in hundreds of cases.
And Obama spent taxpayer dollars fighting us in Court.
The Left intends to inflict on us the “death of a thousand cuts” in endless edicts that drain our resources and ultimately destroy whatever freedoms we have left. For the moment, pro-life, pro-family Americans seem to have an ally in the Supreme Court.
But let’s face it: Has “the least dangerous branch” become our last hope of protection against the tyrant tide?
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