THE MOST DANGEROUS BRANCH: The Supreme Court Versus the Constitution

By Earl P. Holt III

In No. 78 of the Federalist Papers, Alexander Hamilton remarked that since the Judiciary commands neither the Executive’s “sword” nor the Legislature’s “purse,” it has the least capacity to do damage to the political rights delineated by the Constitution. Sadly, Hamilton would be staggered by the damage the Supreme Court has visited upon the Constitution in the past 60 years.

Under the aegis of both Earl Warren and Warren Burger, the U.S. Supreme Court threatened the U.S. Constitution in a manner not possible by another branch of government, and to a degree undreamt of by Alexander Hamilton. In a most fundamental sense, the legacies of the Warren and Burger Courts have called into question the Court’s very legitimacy as an institution of Constitutional government.

Since the 1960s, the Supreme Court has made a mockery of Constitutional limits on the Federal Judiciary by acting as a “super legislature,” or as many critics suggest, “a continuous constitutional convention.”

In the opinion of the late Raoul Berger – America’s preeminent Constitutional historian until his death – the Court became “a committee which has taken the deciding of momentous national issues out of the hands of the people.” Indeed, it has become the ultimate arbiter of every significant public issue from abortion to forced busing, and from capital punishment to public school prayer.

Professor Berger notes: “In a government of limited powers, It needs always to be asked: What is the source of the power claimed?” (Government by Judiciary, Harvard University Press, 1977.)

Under a written Constitution with carefully defined doctrines of separated powers and checks and balances, a branch of government must painstakingly justify its exercise of power to be perceived as acting within the legitimate bounds of its authority. Only then may the public be satisfied that theirs is truly a government based on Rule of Law rather than rule by men.

Recognizing this principle, the Constitution’s framers painstakingly distinguished judicial from legislative functions and provided for their separation.

That justices could make law to effect social change –- as legislatures routinely did –- was a notion completely alien to Colonial experience. This was evident in Hamilton’s observation in Federalist 78 that the judiciary was to serve as “bulwarks of a limited Constitution against legislative encroachments,” but “could take no active resolution whatsoever.”

Moreover, the Framers specifically rejected judicial law-making at the Constitutional Convention of 1787 when they discarded a proposed “Council of the Revision,” which was intended to empower a supreme judicial body with the capacity to modify and revise legislation rather than merely determine its legality.

As Charles L. Black of Yale Law School observed, “the function of the judge was placed in sharpest antithesis to that of the legislature.”

Consistent with this principle of Separated Powers, a number of approaches exist, whereby the Supreme Court can justify its decision-making, and ensure that it is APPLYING rather than CREATING constitutional doctrine. Again, Federalist No. 78 is instructive: “To avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.”

The uproar over the Warren and Burger Courts’ “revolution” has stemmed from their arrogant rejection of these accepted principles of Constitutional interpretation and decision-making.


When Constitutional text speaks directly to a particular issue before the Court, in theory, this situation should pose the least difficulty to resolve. In light of this principle of a “clear text,” look at the Warren Court’s 1969 decision in Powell v. McCormack:

Article 1, Section 5, Clause 1 of the Constitution reads: “Each House shall be the Judge of the Elections, Returns and Qualifications of its Members…” Clause 2 immediately continues: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with a concurrence of two-thirds, expel a Member.”

Powell is notable for establishing the precedent of a Supreme Court authority to “supervise” Congress. The Warren Court invaded the province of Congressional business and overturned House Resolution No. 278, which excluded Adam Clayton Powell by a vote of 307 to 116. Powell was engaged in myriad and flagrant criminal offenses that are quite common among black officials in this day and age, but were fairly novel at the time.

The Court’s decision had nothing to do with the merits of House Resolution No. 278, and everything to do with the coddling and low standards of personal conduct that leftists invariably establish for blacks, which inevitably become self-fulfilling prophesies.

Indeed, the black man who eventually replaced Powell –- Charles Rangel, (D-NY) –- was found by the House Ethics Committee to have engaged in 11 violations of House Ethics Rules in 2008, resulting in a House vote of Censure against Rangel. These included numerous instances of fraud, as well as Tax Evasion, even while Rangel Chaired the House Ways and Means Committee, which oversees U.S. Tax Laws.


Both the Warren and Burger Courts routinely struck down state and local laws permitting religious observances in public school classrooms, as well as most school functions. In each instance, the Court has resorted to an interpretation of the legislative “history” of the First Amendment, which is claimed to support a doctrine of “separation of church and state.”

The expression “separation of Church and State” is not found in the Constitution or any Federal Statute, but is a “catch phrase” used to justify a non-existent doctrine that is anathema to the intentions of its framers and one they would find repugnant. Of relevance is the First Amendment’s “Establishment Clause,” which reads as follows: “Congress shall make no law respecting an establishment of religion; or prohibiting the free exercise thereof.”

Scholars overwhelmingly recognize the amendment’s true purpose to be a prohibition against the establishment of an official, state or national religion. This was intended to avoid the persecution of other religious denominations, an unpleasant history shared by many of the early settlers who fled Europe for religious freedom in Colonial America.

Congressional debate preceding adoption of the First Amendment clearly indicates its framer’s desire to prohibit official acts that prefer one particular denomination over all others, but thoroughly rejected any suggestion that their intent was to create a purely secular document.

Even a generous assessment of school prayer decisions to this very day indicate that the Supreme Court has routinely borne false witness against the First Amendment and its framers in order to placate Jews and atheists, who would prefer a document that is demonstrably and exclusively secular.


The principle that the Court is obliged to follow the precedents of prior court rulings was simply dismissed by both Warren and Burger Courts. As Professor Leonard Levy remarked, “…the Burger Court, no less than the Warren Court displayed an audacious disregard for and circumvention of precedents, clearly revealing its own values and policy choices.”

Precedent may consist not only of a body of decisions, but also its absence, indicating a judgment by prior Courts that a particular doctrine or right does not exist under the Constitution.

Hence, for 182 years prior to the Burger Court’s decision in Roe v. Wade, the authority of individual states to regulate abortions was unquestioned, and presumed to fall under the authority of the Tenth Amendment, which “reserves to the states…powers not delegated to the United States.

By inventing a new fundamental right to abortion, the Court overturned the abortion statutes in all 50 states, and also ignored the Supreme Court’s traditional test of a state statute’s Constitutionality: That is, whether it bears a “rational relation to a compelling state interest,” as all 50 state abortion statutes unquestionably did.

Yale University Law Professor John Hart Ely – a liberal and former law clerk of Earl Warren – even went so far as to concede that Roe v. Wade “is not constitutional law, and gives almost no sense of an obligation to try to be.”

In the interest of brevity, only a few Supreme Court cases have been examined: There are a great many more that illustrate the Warren and Burger Courts’ total rejection of the traditions and principles that have historically constrained the Court’s decision-making.

That the Warren and Burger Courts usurped legislative powers by rejecting the accepted principles of constitutional interpretation is obvious, and conceded even by many of their apologists.

In his landmark study of Supreme Court’s usurpation of power via the 14th Amendment, Government by Judiciary, Professor Raoul Berger identifies this paramount threat to American constitutional democracy and Rule of Law:

“No power to revise the Constitution under the guise of ‘interpretation’ was conferred on the Court: It does so only because the people have not grasped the reality – an unsafe foundation for power in a government by consent.”

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