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Arbitrary Power: The Court’s Ability to Declare Government Acts Constitutional

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The issue with arbitrary power is not necessarily what it’s used for but that it’s arbitrary.

Arbitrary power has been used for good, many times. There have been innumerable Kings and Queens and Emperors and benevolent rulers who’ve possessed arbitrary power and, at times, used their power for what many deemed “the good of the people”. The problem was, should even these “good” ones fall into a bad mood or make enemies with someone, there was nothing to prevent them from exacting their arbitrary will against whoever it was they were displeased with. Read my article on arbitrary power if you’re not sure what arbitrary means.

The Executive Order: American Example

Take a look at American history. The executive order does not originate from the Constitution, meaning that the power associated with the executive order is arbitrary. There’s no limitation to it because there’s no way to define exactly what the power is. Since it’s not defined by any objective standard–the Constitution–it’s also not confined by any objective standard. However, I can think of many cases where this arbitrary power was used for “good” (I know good is relative, but I think most Americans would agree on the positive nature of the following executive orders).

For example, Thomas Jefferson used an executive order for the Louisiana Purchase. He had no enumerated Constitutional power justifying this action, but he did it anyway, arbitrarily, and for the good of the country. Years later, Abraham Lincoln used the executive order (“proclamation”) to free the slaves. Again, he technically didn’t have the Constitutional power to do this, but who would argue either of these uses of arbitrary power were “bad”? (Granted, because of the arbitrary nature, we’re operating in the subjective realm. At the time, I’m sure many Americans saw Lincoln’s proclamation as “bad”).

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Here’s the problem. Both of these presidents used arbitrary power to do these great things for the country, opening the door for other presidents to also use the executive order for whatever arbitrary reason they chose. Because the first presidents did it and got away with it, others could do it as well.

On February 19, 1942, Franklin D. Roosevelt signed executive order 9066, empowering the Secretary of War and his armed forces to forcibly detain and move Japanese Americans into “relocation centers”.

The government archives describes it this way:

“On March 29, 1942, under the authority of the executive order, DeWitt issued Public Proclamation No. 4, which began the forced evacuation and detention of West Coast residents of Japanese-American ancestry on a 48-hour notice. Only a few days prior to the proclamation, on March 21, Congress had passed Public Law 503, which made violation of Executive Order 9066 a misdemeanor punishable by up to one year in prison and a $5,000 fine.

Because of the perception of ‘public danger,’ all Japanese within varied distances from the Pacific coast were targeted. Unless they were able to dispose of or make arrangements for care of their property within a few days, their homes, farms, businesses, and most of their private belongings were lost forever.

From the end of March to August, approximately 112,000 persons were sent to ‘assembly centers’ – often racetracks or fairgrounds – where they waited and were tagged to indicate the location of a long-term “relocation center” that would be their home for the rest of the war. Nearly 70,000 of the evacuees were American citizens. There were no charges of disloyalty against any of these citizens, nor was there any vehicle by which they could appeal their loss of property and personal liberty.”

Yes, this actually happened in America, to our shame.

The point I want to make is this: why was the president able to do this, when he did not technically possess the Constitutional power to do so?

The answer? Because Jefferson and Lincoln were able to do what they did before him.

This is arbitrary power.

This is the consequence of arbitrary power (Again, consider that Americans at the time of the Japanese interment may have perceived this executive order as “good”. Arbitrary means subjective. It’s based on our subjective whim at the time since it is not tied to any outside standards. It could have been or be any race, religion or the like.)

There is no objective standard by which to condemn Roosevelt’s executive order because the power to issue the order comes from nowhere, just like it came from nowhere for Jefferson and Lincoln.

And to make matters worse, the Court upheld the order in the Supreme Court case Korematsu v. U.S. Get this. The Court has not overturned their decision to this day. “On December 18, 1944, a divided Supreme Court ruled, in a 6-3 decision, that the detention was a ‘military necessity‘ not based on race.”

This article should inform your understanding of government behavior during this pandemic, or at least give a bit more historical precedent and context to it.

Judicial Review

I give these examples to point out a very simple yet incredibly frightening reality. The Supreme Court possesses an immense amount of arbitrary power. The power of judicial review (i.e. the ability to interpret the Constitution and declare government action unconstitutional or constitutional) is nowhere to be found in the Constitution; therefore, there is no object standard by which to define or confine this power.

Consequently, the power of the Court continues to balloon because there is nothing, at this point, to confine their undefined power. Judicial review, at its inception, was only supposed to mean that the Court could declare laws by the federal government unconstitutional, requiring Congress to go back to the drawing board. But since the power of judicial review is an arbitrary power, undefined by anything, there’s nothing stopping it from being redefined and changed over time.

Now, the Court determines the constitutionality of every level of government action (Congress, executive, state, local, city) and then rewrites or reinterprets the government action as they see fit. This is called “legislating from the bench” and is a major issue since we the people do not elect these Justices (not to mention that the Court was never supposed to apply the federal Constitution to states to begin with).

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Here’s the real issue. The Court has used this arbitrary power for “good” by occasionally striking down some very oppressive government action (e.g. The Schechter Poultry Corp. v. United States ruling in 1935 struck down the very oppressive NIRA law that forced private businesses to set their prices at a certain level, along with many other heavily intrusive and oppressive measures).

But, since this power to strike down unconstitutional behavior is arbitrary, just like the executive order example, the Supreme Court has also been very fond of declaring government action constitutional.

The ability to legitimize government behavior by declaring it “constitutional” is gravely dangerous because it results in the Court handing immense amounts of power to these other branches. For instance, look at the Korematsu vs. U.S. (1944) and United States vs. Curtiss-Wright Export Corporation (1936) cases. Both cases egregiously expanded executive power. Or look at McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), both cases that greatly expanded Congressional power. And think about it, Congress and the executive have no incentive to push against the ever growing judicial power, because the growth of the judicial branch results in the growth of Congress and the executive.

Supreme Court cases have also been very fond of striking down state or local laws that could be construed as violating the federal constitution (e.g. Roe v. Wade, 1973 or Obergefell v. Hodges, 2015). This use of judicial review has slowly but steadily eroded state and local power and autonomy while fortifying federal power and autonomy.

This is arbitrary power.

It’s arbitrary because it cannot be defined and therefore cannot be confined.

We need to know the kind of power we’re facing if we’re going to have any chance of preserving liberty in the face of it.

“Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people.” – John Quincy Adams

The Liberty Belle

15 thoughts on “Arbitrary Power: The Court’s Ability to Declare Government Acts Constitutional”

  1. Granted there are numerous incidences where the Supreme Court let unconstitutional laws such as the Administrative state reign free. There has also been incidences of the court overstepping it’s bounds by making laws through their decisions which we commonly refer to as judicial review as opposed to determining the legality of laws. Making laws and determining the legality are two totally different actions.

    I believe the opprobrium you express for the Supreme Court is misplaced. The problem isn’t that the courts hand over power to the other two branches through their decisions but the other two take it upon themselves to interpret how laws should be administered and the courts must clean up after them. This assumption of power by the Legislative and Executive branch are the ones who are taking the power away from the states not the courts. When court appointments are made through those same political entities that need to be controlled there is a major conflict of interest. A “le Jeu D’ Alternance” occurs where a law can be interpreted one way when the liberals control the court and it changes entirely when the right controls the court.

    If the Supreme Court doesn’t have the authority to decide what is Constitutional or not as you imply you neglected to say who exactly has that power.

    BTW: I agree with most of your examples but when Thomas Jefferson made the Louisiana Purchase it set a precedent in our young countries history. And as I’m sure you are well aware of “Precedents” are a strong force for determing future court decisions.

    1. I believe in the constitution and legislative intent of the law “”” and NO further judicial construction is allowed or permitted”” but they [ judiciary] is always working on construction as above as party lines change so do constructive interpretation of the laws.

    2. C. McMasters Ph.D.

      Hey Bob… good points. As always, thanks for engaging with me :). I’m actually going to address some of what you say in a following post. What I’m saying, and realizing, is that we need some sort of objective outside standard to compare many of these arbitrary powers against. In the case of the Supreme Court, I fully recognize the need for them to be able to declare laws unconstitutional; the problem is that their power is this realm isn’t defined in the Constitution AT ALL, therefore, it is completely based upon the arbitrary whim or will of government. If, however, we added an amendment to the Constitution, clearly defining and thereby confining the power of judicial review, the Court could only go as far as the specified power allows. The Court would hate that of course (as they love the fluid nature of their power now); but it would great for the country because it would clearly define and confine their power. And the same could be said about an innumerable number of other federal powers we may deem necessary but are currently dangerous and arbitrary.

      And yes, I agree that the other two branches are heavily involved in taking power from the states, but Supreme Court is not helping by legitimizing it.

      1. Chris: It might be easier if we elected Judges or had term limits on them so that neither party could pack the court with partisan judges.

      2. Bob– electing and term limits would be a good thing , in local courts up here such as the county circuit courts , there are petitioning and elections , along with appointments by governors , but yes TERM LIMITS nation wide from the simple traffic magistrate to SCOTUS , question for Ms. McMasters and yourself , a total of all judicial tenure ? or each step up the ladder ? example 2 terms as state district /circuit/appeals /claims, and supreme courts , before going federal district / circuit court of appeals / D C appeals / SCOTUS ? if the term limits are on “judicial tenure” totals would limit them , to bounce around for life in the judiciary , I feel would not be “”limits”” unless required to re–locate at least out of their U S Circuit states , or we run right back into that word “” precedent””” ? Thanks Bob — recall when you mentioned we might agree on issues?

      3. ronald james ronald

        Thanks Ms. McMasters and Bob , an amendment would be great to [ confine ] and [ define ] the powers of judicial review , looking forward to the posting on it. Thanks again. Imagine the POWER of “WE the PEOPLE” if we all found away to work together , up here it is a ongoing battle with the centralized big local government , as an elected official fighting daily to abide by my oath , meeting retaliation every step including the local courts.

  2. Ron: I like your idea about limiting terms to two for each step.

    Chris: Our Constitution was vague for a purpose. As you have pointed out numerous times it is only an outline on how our government should run. The founders couldn’t see into the future to anticipate what would be needed nor did they need to. I’m afraid that if we attempt to add an amendment as you suggested we would be tied up trying to appease every different faction and nothing would be accomplished. Our Constitution would consist of thousands of pages like the European Unions. We need to find a way to avoid this which is why I’m also against calling a Constitutional Convention to rewrite the Constitution.

    BTW: My suggestion of electing judges would also avoid the debacle Mitch McConnel created with the death of Justice Scalia and Ginsberg.

    1. Bob– a constitutional convention , would never be like when the founder put the federalist papers together looking for support from “”we the people”” , , my opinion any new conventions would not interest the majority of “we the people” and like said person’s like McConnell or Shumer would surely make a debacle out of it , to find a way to still pack the courts. If only the courts woud abide to the following “”” When the constitution and statutes language is clear and unambiguous , the proper role of the judiciary is to simply apply it as written [ legislative intent ] no further judicial construction is allowed or permitted “” so simple but so complicated , by debacles set in motion by person’s like McConnel , going back to the word vague.Thanks for the above Bob.

  3. Bob Manderville

    Hey Chris:
    Upon further review ELECTING JUDGES might not be a good idea after all. Elections mean campaigning and campaigning means donations. After what we have currently seen with the “perks” to Supreme Court Justice Thomas and Roberts and their families perhaps in that follow-up post you can address a “Code of Ethics” for the court?

    But let’s discuss where the real problem lies here. You speak of arbitrary power. Perhaps we should give some thought to the vetting process that gives us these judges who are “SUPPOSEDLY” qualified to serve on the Supreme Court because Congress doesn’t. As I have stated numerous times previously, I sorely distrust the incompetent members of Congress (from either side of the aisle) to draw up a new Constitution or even to be objective in any impeachment proceedings. What I have also learnt from the court picks in the past few years is that it has little to do with vetting nominees whose views are consistent with the Constitution or whose ideological or personal habits are acceptable to the American public. How many times have we been threatened prior to an election that the power that the Supreme Court carries is so great that the sole purpose behind appointing someone to it is that political parties must do anything in their power to keep the opposition from filling a spot on the court in an effort to reinforce party tribalism and keep the “us vs them” dynamic running through the next election cycle. Simply filling the spot for the same reason Kevin McCarthy refuses to empty George Santo spot in the House because he can be relied upon to give you the vote that you need. Qualifications be damned. Being a member of Congress today doesn’t mean you have to be objective or even knowledgeable. The Advise and Consent comes from the party leaders and the acceptable results for the party will trickle down throughout the rest of our government.

    1. Hey Bob , how are ya ? nothing new up here in Corrupt County , MI . Arbitrary powers ! judicail code of ethics ? like The MJTC [ Michigan Judicial Tenure Committee ] well many judges are good and we have had some good honest judges only intreprating the constitution with it’s original intent by the PEOPLE , then there are the majority of judges , hand pick , unqualified , and incopetent at best . Lets all remember judges are just lawyers with black robes , and to many folks look at that black robe as in likely hood of the local padre at the church another power grabbing institute who interpret the bible , point at us repeatedly for a single sin , even if we did not commit it , while they violate the rest of the entire book , it’s like these phoney republicans in Coward County , MI , in the 22′ election we had some proposals , of course republicans want to destroy the right to vote , against campaign fund disclosures , but abortion we seen the votes flipflop and reverse as many of these conservative christain republicans need abortion in the very private offices [ not a planned paranthhood ] to conceal their indulgences of adultery , killing a baby concieved in the ever growing extramaritail affairs , molestation , sexual predatory acts and even extortation and explotation , by high ranking republicans , so they are for abortation , while making others look as the only ones guilty , as stated they flipflopped and wanted to keep abortation .What about the border crisis ? again these same rogue faction republicans , we have never met a democrat busted for human trafficking or the exploited labor of immigrants , it’s always the republicans around here who get busted , they get them up here , incorporate them into their slave shops [ farms/orchards/ manufacturing sites ect ] anyway back to judicial ethics , the MJTC polices judges , like the AGC Attorney Grievence Commission polices lawyers conduct , both have very large work loads , and some judges are good a long sitting state local district judge is on these committees , who disiplines , unfortunatly he will likely have to recuse himself in Coward Co , MI as he works with a long lineage of abusive judges who have that arbitrary power , where they make law , and are above the law , in many cases these judges act as part of a state bar , to take the poor , disabled , under or unrepresented by a competent lawyer to use these folks as an ATM machine to supplement the state bar , county prosecutor and their partners in crime the majority of public defenders , here in Corrupt Co , MI , the previous public defender is now the prosecutor , the lead public defender is son-in-law to former Mi Supreme Court Judge , who was till 2006 the local chief judge , and the present cheif judge is the son of a county judge , who before becoming a judge worked at the corrupt law firm who handles the majority of all local units of government legal matters , surprised they have not chain dragged me to the gallows yet on 200 W Michigan Ave , where the only paper in town , certainly not a free press , well he is in the same lineage as these , ……….. Christine , we were down in Boone last week , then to the outerbanks , nice state , always a great place to get out of this corrupt state where feds say Michigan is 40 to 1 more corrupt then Chicago , and New York combined ……..

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  5. Bob Manderville

    Ron, it was good to hear from you again.

    In regard to your statement “………it’s always the Republicans around here who get busted”. I’ve noticed the Republicans seem to be more incompetent in proving anything once they hold hearings or attempt to hold the lefts feet to the fire. Think about this. They held the “Benghazi Hearings” for how long to get Hillary and the results were squat. They held the “Durham Investigation” and after 5 years he came up with two acquittal’s but plenty of accusations. They attempted to prove the 2020 elections were stolen in numerous courts but in 60 plus trials were turned away. The Jim Jordon Weaponization committee had two Ex-FBI witnesses that lost credibility because they lost their security clearance due to a break-in at FBI headquarters and admitted to taking money from Trump advisor Cash Patal. Finally, we have Congressman Jim Comer “The Oversight Committee” looking into the Biden Family. Again, he couldn’t find squat but was eager to give his opinion that the Biden family made a lot of money and make his accusations so that the right could keep the base fired up. Psssst! Jared Kushner got 2 BILLION from the Saudi’s but that don’t bother you?

    Meanwhile the Democrats had mostly ex-Trump administration officials and Republicans testify in their January 6th committee hearings but were unable by law to indict anyone. The Mueller Investigation however had 34 people and three companies plead guilty which probably could have been more if Attorney General Barr didn’t kill it with redactions.

    1. It would be nice a the republicans would focus on the matters at hand , and stop their frivolous political vendettas , all this squabling makes us look weak .

      1. Thanks Bob ! , The Former MIGOP Chair [Timmer ] wants to get back to business as well , as he left the MIGOP as it was being over run by trumpist and wasting our tax dollars in courts and re-counts that basically resulted in more votes for Biden , Timmer kept big Michigan money and pacs out of their reach , helping the republicans lose the state legislature for the first time in 40 years , Whitmer , Benson , and “Nessal” killed the red wave and flipped it all , even putting the first black woman in our supreme court , I put signs up for her and the three dems throughout hostlie republican country , they stole 90% of the signs , when I told them they are racially discriminating against Bolden [ who did not win ] the signs reappeared in hours , even with the loss , Cheif Justice Bridgett McCormack stepped down and Whitmer appointed Bolden Amen to that !! Sure would be nice if all those excutives and judges would look north ? anyway Timmer calls the breakaway GOP party “Common Sense Party ] for centrist and constitutional dems and republicans . Sure wish we could get some help up here , we had to heat our home with a cook stove AGAIN this last and brutal winter , my medical is not affordable as I waive my medical to perform my elected duties . RL

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