Tal writes on the Debt discussion

Or my biggest peeve, Social activism and conflict of interest by judges, especially the ones at the top!
This marks one of those moments where we agree even though we approach the topic from different political perspectives .I think there could easily be consensus to reform the judiciary .You will cite specific cases where we disagree . But the relevant point is an agreement that the jusdiciary has too much power... power that they were not granted by the Constitution.

SCOTUS has been out of control since Marbury V Madison . Judicial Review to the extent it has been exercised was a power grab by Chief Justice Marshall that for some strange reason neither Congress or the Executive challenged . The Constitution gave them no such power .In truth ;Marbury was a political decision by Marshall to stick it to Jefferson after the election of 1800.
The Marbury decision made the Judiciary an unequal more powerful branch of the government ,granting unto themselves the last word. To make matters worse ;the Constitution grants them a lifetime appointment (short of impeachment ) This effectively turned the unelected branch an oligarchy.The most political ,cultural and moral decisions affecting our lives have been removed from the people.

Here are the words of Jefferson on the issue :

"…the 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."

“A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.”

“We already see the [judiciary] power, installed for life, responsible to no authority … advancing with a noiseless and steady pace to the great object of consolidation. The foundations are already deeply laid by their decisions for the annihilation of constitutional State rights and the removal of every check, every counterpoise to the engulfing power of which themselves are to make a sovereign part.”

“To consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. … their power [is] the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided…its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. … 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.”

“It has long been my opinion, and I have never shrunk from its expression... that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary – an irresponsible body…working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed.”



Alexander Hamilton wrote in Federalist 78 that the judiciary will always be the least dangerous branch of government because it has the least capacity to annoy or injure our constitutional rights. Would he think so today ? Anti-Federalist "Brutus" countered :
"There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself."
ThisNation.com--The Antifederalist Papers No. 78-79
History confirmed Brutus' fears .