The executive branch, too, should begin exercising its constitutional responsibility to provide a check over a rogue judiciary. Again, as Federalist 78 notes, the judiciary possesses neither the power of the purse nor the sword. It depends upon the power of the executive to execute its orders. But the executive, no less than the judicial, has sworn an oath to defend the Constitution. Thomas Jefferson refused to enforce the Alien and Sedition Acts even though the Supreme Court held those egregious laws to be constitutional. And Abraham Lincoln refused to abide by Dred Scott, holding that the court’s rulings were binding only upon the immediate parties to the case. As Lincoln noted, if the Supreme Court’s decisions irrevocably resolve issues, the people will have ceased to be their own rulers and resigned their government into the hands of judges.
The fiction of judicial supremacy, often cloaked in the guise of a high-minded though self-serving assertion of “judicial independence,” poses a direct threat to self-government. The proper balance between the branches of government, as envisioned by the Framers in the separation-of-powers doctrine, must be restored if our American experiment in popular self-government is to prosper.
Richard Lessner is executive director of the American Conservative Union.