Patrick Henry Predicted
The Judicial Activism
Of An Imperial Supreme Court

There was little hint of the judicial activism to come when the Founding Federalists emerged from Constitution Hall. In fact, one of the delegates expressed concern that the judicial branch would be bullied by the executive and legislature.

A woman is said to have collared Benjamin Franklin as he came out with the question , “What kind of government have you given us, Mr. Franklin?” “A republic, Madam,” was his reply, “If you can keep it.”

Apart from God, Franklin’s challenge has proved impossible to meet. Statutes, amendments, and Supreme Court rulings and judicial activism have wiped out or reversed most of the liberties guaranteed by the U.S. Constitution. Patrick Henry predicted as much in the ratifying debates. “This government will operate like an ambuscade.” He warned, “It will destroy the State governments, and swallow the liberties of the people.”

And then, ominously, “…I see arising out of that paper (Constitution), a tribunal, that is to be recurred to in all cases, when the destruction of the State judiciaries shall happen…the State courts must soon be annihilated.”

This was why many of the leading AntiFederalists refused to attend. According to historian Forrest McDonald, “Neither Sam Adams nor John Hancock of Massachusetts nor Richard Henry Lee and Patrick Henry of Virginia chose to come (Henry did not because, he said, ‘I smelt a rat’) The others offered no excuses.”

But even the prescience of Patrick Henry could not have foreseen the devastation wrought by the judicial activism of the American courts, led by the Supreme Court. One the most devastating has been the expansion of judicial power via the concept of “judicial review”

Proper Role of Judiciary

The decisions of Moses and the rulers of Israel were based on the law of God, not their own fallible human wisdom. Likewise, under the U.S. Constitution, judges are not granted the power to legislate judicially. Contrary to popular wisdom, the Constitution is not "whatever the Supreme Court says it is."

The judiciary is to interpret the law as it relates to the circumstances of a particular case in dispute and pass judgment on the basis of that law. Judges are forbidden by both Scripture and Constitution to assume the role of God, passing judgment on the higher law. By doing so they make themselves the final arbiter of right and wrong.

The Constitution itself binds the judiciary by this principle: "This Constitution and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land; and the judges in every State shall be bound thereby . . . " (Art. VI, Sec. 8).

Judicial Review

In the early years of the Republic, however, the first chief justice, John Marshall, returned a decision that began to erode this principle. In this case, which involved a number of inconsequential judicial appointments, Marshall articulated the doctrine of judicial review. Under this doctrine it is "the power and duty of the Court to pronounce null and void, and refuse to enforce, legislation in conflict with the Constitution."(3.7)

Having enthroned itself above the Constitution, it goes without saying that the Supreme Court has not hesitated to place itself above the authority of the Bible itself. The impact of Marshall’s legacy is well summarized by Steve Wilkins:

A "strict construction" of the Constitution which denied "implied powers" was viewed as essential to the maintenance of liberty. Jefferson and those presidents who followed him were firm believers in this.

But there were forces in the country which held the contrary view--chief among them, the new Chief Justice of the Supreme Court, John Marshall. Marshall was a convinced nationalist and constantly concerned to preserve the central government’s supreme authority.(3.8)

Return from Judicial Activism to America Betrayed 1787