Lies the government told you by Andrew Napolitano (best e reader for epub TXT) 📗

is.” Therefore, it had the power to strike down executive and legislative acts repugnant to the Constitution. The Constitution, however, is silent on the role of the judiciary, aside from the rules that judges will “hold their Offices during good Behavior,” receive compensation, and hear certain types of cases.

Who, then, was Chief Justice Marshall to create unilaterally a role for the federal judiciary not envisioned in the Constitution? Or was it envisioned? Don’t the members of the popular branches also take an oath to uphold the Constitution? What’s so special about judges? If the branches of government are equal, how can one branch invalidate the official behavior of the other two?

The answer to these questions, simply, is that it is dangerous to leave constitutional questions up to the branches of government that are actually making the laws, and the Framers understood that. If Congress and the President had the power to make laws and interpret the Constitution, there would essentially be no check on their power. The Constitution would be toothless, and the popular branches would work systematically to restrict our liberties. (We know this because Congress and the President still try to take away our freedoms.)

According to Harvard Professor Laurence Tribe, a renowned American attorney and constitutional law scholar, “The whole point of an independent judiciary is to be ‘antidemocratic,’ to preserve from transient majorities those human rights and other principles to which our legal and political system is committed”23 (emphasis in original). Tribe went on to state that “[w]ithout this role there would be nothing to stop a bare majority of our citizens from deciding tomorrow that the minority should be enslaved or required to give up its belongings for the greater good of the greater number.”24 Tribe reminds us that without an independent judiciary with the power of judicial review, persons in our republic would have no recourse against popular government policies that infringe upon their natural rights.

It is important to note, though, that Chief Justice Marshall did not argue that the judiciary was in any way superior to Congress. Rather, his opinion echoed Hamilton’s statement in The Federalist, No. 78, which he did write (but could not have sincerely intended): “The Constitution is superior to all; the judiciary is just acting to preserve its legitimacy.”

Judicial Passivity

There have been many Supreme Court opinions throughout history in which the Court should have acted in a more activist way, but failed to stand up to government abuse.

A great example of judicial inaction was the Supreme Court’s decision in Plessy v. Ferguson.25 The conflict in Plessy resulted from government-mandated racism, not from private behavior. In 1890, the State of Louisiana enacted a law that required racial segregation in public accommodations, including on railroads. African-Americans despised this law because its goal was to maintain white supremacy. The railroad companies also vehemently opposed it because it forced them to add more railroad cars and more employees, and thus incur more costs, so as effectively to segregate blacks and whites.

On June 7th 1892, Homer Plessy, who was seven-eighths white, and only one-eighth African-American, boarded a railroad car that was designated for whites only, with the purpose of violating the law. After refusing to move to the “colored” car, Plessy was arrested and jailed for violating the Louisiana statute. Before the Supreme Court of the United States, Plessy argued that the Louisiana law violated his rights under the Fourteenth Amendment’s “privileges and immunities” and “equal protection” clauses. According to the Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . . nor deny to any person within its jurisdiction the equal protection of the laws.”

Today, about a half-century since the Civil Rights Movement, the decision in this case seems like an easy one. Racial segregation commanded by the government, by definition, treated whites differently from blacks, and therefore deprived blacks of equal protection. Under today’s notion of equality, therefore, the Louisiana law would be struck down as blatantly unconstitutional.

In 1896, however, the United States was not too far removed from the Civil War and the institution of slavery. The Thirteenth, Fourteenth, and Fifteenth Amendments were the so-called “Reconstruction” Amendments, geared toward promoting racial equality. However, these amendments, while abolishing slavery, did not explicitly abolish legally enforced segregation.

Nevertheless, the Supreme Court should have engaged in “constitutional activism” and struck down the Louisiana law. First, it is obvious that in a society where blacks had been considered inferior for so long, a law compelling the segregation of the majority white race and the numerically inferior black race cannot under any circumstances be considered equitable. These laws were passed with the sole purpose of maintaining African-American cultural inferiority.

Second, the Supreme Court had already laid the groundwork for overturning these race-based laws. In 1883, in the case of Strauder v. West Virginia,26 the Supreme Court struck down a West Virginia law prohibiting African-Americans from serving on juries. According to the Court in Strauder, the Fourteenth Amendment’s Equal Protection Clause protected African-Americans “from unfriendly legislation against them distinctively as colored” and shielded them from “legal discriminations, implying inferiority in a civil society.”27

Plessy was a bit different in that blacks were not excluded from riding the railroad, as they were excluded from serving on juries in Strauder.

There is no way to get around the clear fact, however, that the Louisiana law, while slightly more friendly than the West Virginia law in Strauder, was enacted to promote African-American inferiority. It was the government using its power to make decisions based on race. It was the government preventing the free choice of railroad owners and customers. It was the government interfering with freedom of contract and freedom of travel. It was the government, by forcing the railroads to spend their money on equipment they did not want or need, taking property from the railroad owners.

The Supreme Court made a huge mistake in Plessy, creating the “separate but equal” doctrine, and thus providing shelter to segregationists that