"Should the constitutional republic our forefathers designed be replaced with a government by the majority vote of a nine person committee of lawyers who shall be appointed rather than elected and shall hold office for life?"
If a pollster were to ask this question, probably 99 percent of the public would answer with an emphatic "No!"
And yet, without an abundance of exaggeration, that is a fair description of the power now wielded by the U.S. Supreme Court--a court that claims the power to strike down and invalidate almost any action by almost any other branch or level of government.
It didn't begin that way. The Framers established a constitutional republic in which the powers delegated to the federal government were, in James Madison's words, "few and defined," while those reserved to the states were many. And the powers delegated to the federal government were carefully separated into legislative, executive and judicial branches.
In The Federalist, No. 78, Alexander Hamilton wrote that of the three branches of government, the judiciary "will always be the least dangerous to the political rights of the constitution, because it will be least in a capacity to annoy or injure them." The legislative branch exercises "will," that is, it determines the policy of the nation; the executive branch exercises "force," that is, it implements and enforces the will of the legislature. But the judiciary exercises only "judgment," interpreting the will of the legislature and the actions of the executive. Hamilton wrote that the judiciary is "beyond comparison the weakest of the three departments of government; that it can never attack with success either of the other two...."
The Constitution nowhere expressly states that the federal courts have the power to strike down laws as unconstitutional. But in the famous 1803 case of Marbury vs. Madison, Chief Justice John Marshall claimed that power for the Supreme Court. Since Article III, Section 2 of the Constitution gives the court power over cases arising under the Constitution and laws of the United States, the Constitution therefore gives the court the authority to interpret the Constitution and statutes, argued Marshall. And if the court determines that a statute is inconsistent with the Constitution, then the court must rule that the Constitution stands and the statute falls. As Marshall declared:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution: or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
President Thomas Jefferson emphatically disagreed with Marshall's decision. Jefferson had not been a delegate to the Constitutional Convention; during the Convention and the ratification process, he was in France. He had mixed feelings about the Constitution. He admired some features of it, but he was deeply concerned about the power of the judiciary. In 1804 he wrote to Abigail Adams: "[T]he opinion which gives to the judges the right to decide what laws are Constitutional and what not, not only for themselves in their own sphere of action, but for the legislature and executive also in their spheres, would make the judiciary a despotic branch."
Jefferson and his supporters called themselves the Democratic Republicans, the ancestor of the Democratic Party. …