By Harold Pease Ph. D.
Alexander Hamilton wrote that the Judiciary has no power thus is harmless, “so long as the judiciary remains, truly distinct from both the legislature and the executive.” He reasoned, that the “courts have neither force nor will but merely judgment” and cannot effectuate those judgments on its own. “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; because it will be least in its capacity to annoy or injure them. The executive not only dispenses the honor but holds the sword of the community. The legislator not only commands the purse but prescribes the rules by which the duties and rights of every citizens are to be regulated. 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 whatsoever. 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 judgment.”
There are“several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power. That it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves that though individual oppression may now, and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter, I mean, so long as the judiciary remains, truly distinct from both the legislature and the executive. For I agree that ‘there is no liberty if the power of judging be not separated from the legislative and executive powers.’” (The Federalist Papers: No. 78, Hamilton, pp. 465-466).
Thomas Jefferson warned that “the federal judiciary can become very dangerous” if they go beyond judgement. On September 11, 1804, Jefferson told a group, “You seem to consider the judges as the ultimate arbitrators of unconstitutional questions. Very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more. They have with others, the same passions for party, for power, and the privilege of their core. Their power is the more dangerous as they are in office for life and not responsible as the other functionaries are to elective control. The Constitution has erected no such single tribunal. Knowing that to whatever hands confided with the corruptions of time and party, it’s members would become despots. It has more wisely made all the departments coequal, and co-sovereign within themselves” (X22 Report, Ep. 3604b, 24 Mar. 2025, 1:01:30).
With remarkable foresight, 24 years later, Jefferson described our day and time and how through intended erosion the Judiciary could destroy the Constitution. On September 28, 1820, he said, “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 day gaining a little today and a little tomorrow and advancing, it’s noiseless step like a thief over the field of jurisdiction until all shall be usurped” (Ibid., 1:03:00).
A year later, in August 18, 1821, he spoke of how past practice, one small perversion at a time vying from original intent, gradual in sequence, could destroy the Constitution. The courts were charged with preserving purity of doctrine. He wrote, “At the establishment of our Constitution the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous… Unheeded by the public at large, …[their] decisions nevertheless became law by the precedent. Sapping by little and little the foundations of the Constitution and working it’s chains by construction before anyone has perceived that the invisible and helpless worm has been busily employed in consuming its substance. In truth man is not made to be trusted for life if secured against all liability to account.” Although aimed at the judicial branch this could be said of the executive and legislative branches as well. Past practice slightly altered can become a weapon, thus the enemy of original intent.
On October 31, 1823, Jefferson reminded his followers of what he had said 34 years earlier in 1789 when the Constitution was implemented . Then he “warned that the Judiciary, if given too much power, might ruin our republic, and destroy our rights. The new constitution has secured these individual rights in the executive and legislative departments, but not in the judiciary. It should have a stab of trial by the people themselves, that is to say, by jury. The judiciary of the United States is the subtle corps of sappers and minors, constantly working underground to undermine the foundation of our confederative fabric.” (Ibid., 1:04:20).
The Supreme Court must first reign in its lowest court judges which is what Chief Justice Roberts did by telling activist District Court Judge Boasberg that he “lacks jurisdiction” on Trumps deportation of Tren De Aragua and MS-13 terrorists. He needs to tell all 677 District Court Judges that their authority is within their districts only. The Executive branch must make certain its executive orders (EO) always align with laws passed by previous congresses hence, Trump went back to the Alien Enemies Act of 1798 to justify his executive orders on deportation and his EO on enforcement of The Federal Rule of Civil Procedure 65(c) which mandates up-front money in injunction suits for damage caused by bogus suits that later are unconstitutional. And Congress, once again, must impeach judges that have a history of exceeding their jurisdiction and have intentionally weaponized the judicial branch against the executive branch which so many are doing now, attempting to replace executive authority with their own.
Hamilton proved right. The Judiciary has no power thus is harmless “so long as the judiciary remains, truly distinct from both the legislature and the executive branches.” But it hasn’t. Jefferson also was right. The judiciary has become very dangerous because it is infringing on the authority of the executive branch—effectively replacing it.
Dr. Harold Pease is an expert on the United States Constitution and a syndicated columnist. Read his weekly columns at www.LibertyUnderFire.org Column # 816
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