The Constitutional Crisis and Judicial Oligarchy
Nothing in the Constitution supports the concept of judicial supremacy over Constitutional issues.
It is clear that the Founders and the Framers of the Constitution never contemplated a judicial oligarchy dictating the governance of our country. Alexander Hamilton famously stated “…the judiciary…will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them.”
The Framers drew inspiration from the Enlightenment. Charles de Montesquieu, one of the most influential, wrote “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty… There is no liberty if the judiciary power be not separated from the legislative and executive.” Prominent Anti-Federalist Patrick Henry stated “Power is the great evil with which we are contending. We have divided power between three branches of government and erected checks and balances to prevent abuse of power. However, where is the check on the power of the judiciary? If we fail to check the power of the judiciary, I predict that we will eventually live under judicial tyranny.”
Other Anti-Federalists warned of judicial tyranny, Brutus stated “…the judges under this constitution will controul the legislature… and there is no power above them to set aside their judgment…, they are independent of the people, of the legislature, and of every power under heaven.” Thomas Jefferson stated more directly “…to consider the judges as the ultimate arbiters of all constitutional questions…would place us under the despotism of an Oligarchy.”
Today, a judicial oligarchy has seized powers from the executive and legislative branches, as well as state governments. Israel demonstrates how judicial oligarchies can undermine republican government to establish judicial tyranny. Israel’s Judiciary can overrule virtually any activity or law, and decree activities it deems best, including overruling military commanders during combat operations. We now live under a similar judicial oligarchy.
The federal Judiciary, and often state judiciaries, are engaged in a direct attempt to overturn the effects of elections and dictate governance. That is dictatorship, which our country has always feared. It now occurs daily in the form of judicial ‘decisions’ and ‘opinions’ that dictate how the federal and state governments, and the People, can act and live.
Courts are directly infringing on the Constitutional duty of the President to "...take Care that the Laws (of the United States) be faithfully executed...." This is a direct attack on the Constitution. Similarly, federal courts infringe on the authorities the People of West Virginia granted to our legislature and governor to govern our state. In August, 2025, a federal court overturned legislation preventing companies from publishing addresses and other information, and effectively doxxing law enforcement officials. In April 2024, the Fourth Circuit Court of Appeals ruled men can be women, and can play in girls’ sports.
The United States must be governed by the People, not a judicial oligarchy. We adhere to the Constitution and laws derived from a Constitutional process, not unelected 'judges.' These oligarchs are simply human beings - as fallible, and in many cases, more fallible than the average American. (The courts frequently make horrendous decisions, including Dred Scott, Korematsu, and Plessy v. Ferguson.) It is time to throw off this dictatorship and the judicial oligarchy that enables it.
The Founders and Framers gave us the remedy – the Constitution itself.
In Federalist #49, James Madison stated “It may happen also that different independent departments, the legislative and executive, for example, may in the exercise of their functions, interpret the constitution differently, and thence lay claim each to the same power. This difference of opinion is an inconvenience not entirely to be avoided. It results from what may be called, if it be thought fit, a concurrent right to expound the constitution.” Of note, Madison did not identify the Supreme Court as principally charged with interpreting the Constitution, since that was alien to the concepts enshrined in the Constitution. Thomas Jefferson similarly stated “…each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action….”
The federal Judiciary's dictatorial decisions against the Trump administration's exercise of executive authority and the laws passed by Congress and duly implemented by the executive, is both an un-Constitutional violation of separation of powers and the Constitution’s Guarantee Clause (“The United States shall guarantee to every State in this Union a Republican Form of Government…”). These types of decisions undermine republican government, at the federal and state levels, in favor of a judicial oligarchy subverting the Constitution. Republican government is representative democracy, wherein representatives elected by the people make and execute the laws.
A judicial oligarchy dictating laws and execution is the antithesis of republican government. The Preamble to the Constitution states that the People are the sovereign entity that created the Constitution, and their elected officials, not unelected courts, implement that Constitution. The States, and the federal executive and legislative branches, were to have at least co-equal status in determining the Constitutionality of issues. Those elected officials must re-assert their Constitutional authorities to determine whether a law or action is Constitutional.
While the federal branches are reputedly co-equal, the Framers always intended Congress, being closest to the People, to be pre-eminent. This is why Article I of the Constitution is ”The Legislative Branch.” The least powerful branch was always regarded as the Judiciary. President Woodrow Wilson changed that to enable his Leftist ‘Progressive’ agenda by unelected judges. The result is today’s judicial oligarchy.
Edwin Meese, arguably our greatest Attorney General, indicated in his seminal 1987 essay "The Law of the Constitution" that while judicial interpretation of the Constitution binds the parties of specific cases, it should not establish a supreme law of the land that must be accepted by all parts of the government. He specifically stated “…constitutional interpretation is not the business of the Court only, but also properly the business of all branches of government. The Supreme Court, then, is not the only interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the Constitution—the executive and legislative no less than the judicial—has a duty to interpret the Constitution in the performance of its official functions. In fact, every official takes an oath precisely to that effect.”
Abraham Lincoln agreed, stating in his 1861 Inaugural Address, “…if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Lincoln’s famous contempt for the Supreme Court’s Dred Scott decision and his later defiance of the Supreme Court’s decision on his suspension of habeas corpus at the outset of the Civil War, demonstrated that Lincoln knew that the Judiciary was not supreme in determining Constitutionality.
In Federalist #39, James Madison made clear that since the states created the Constitution and the federal government, they were not subservient to the federal government. Indeed, he stated "the proposed government…leaves to the several states a residuary and inviolable sovereignty over all other objects." In the Virginia Report of 1799-1800 he declared, "The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition." He thus placed the states above the Supreme Court in interpreting the Constitution.
In reaction to the outrageous 1857 Dred Scott decision, the states did just that, with many Northern states openly defying the Supreme Court or passing laws to nullify the decision.
The federal Judiciary's assumption of supremacy over the states and the other branches of the federal government is un-Constitutional. If the courts decide that a law or action is un-Constitutional, then the states, as well as the federal executive and legislative branches, must determine if they agree. If they agree the decision accurately represents the Constitution, then they have must comply. However, if they determine a law or action is Constitutional and the judicial decision is inaccurate, then, their oath to support and defend the Constitution demands that they not only not comply, but instead, they must determine how to enforce the law or action as they interpret the Constitution.
This should not be an arbitrary political determination of Constitutional validity. If any entity, including the Judiciary, determines without solid Constitutional grounds that an issue is Constitutionally valid, then that entity is violating the Supremacy Clause of the Constitution, and should be forcefully held to account by the federal executive and legislative branches.
Courts, including the Supreme Court, must articulate why a law or action is a clear violation of the Constitution or direct violations of superseding Constitutionally-based federal laws to hold any validity. Judicial decisions based on ambiguous, arcane or indirect logic, or based on similar precedent must be null and void. Any entity opposing a judicial decision must also articulate a clear and convincing Constitutional basis for the opposition and any subsequent actions. The ultimate arbiter of Constitutionality, however, is the People, via their votes during elections. Any other approach is an attack on the foundations of the Republic.
West Virginia must adhere to the Constitution and not a judicial oligarchy that has upended it. I have submitted legislation (HB5533 and HB5536 ) for West Virginia. The key aspects are simple. Judicial decisions that are demonstrably wrong in their interpretation of the Constitution, or federal or state law, such as Dred Scott, Korematsu, or Plessy v. Ferguson, will be reviewed per the above, and declared null and void in West Virginia. District and Appellate Court decisions outside those courts’ geographic jurisdiction are null and void.
West Virginia’s Executive branch or the legislature will review suspect federal or state judicial decisions for Constitutionality. If the executive and legislative branches concur that a decision is not based on the Constitution, then the judicial decision is null and void in West Virginia. Efforts to enforce a dictate by a court or any other entity deemed invalid by West Virginia will be a felony.
Some will argue that states cannot defy the courts. In reality, Leftist states and cities routinely defy court decisions. They have functionally defied the Supreme Court’s Heller and subsequent decisions on the 2nd Amendment for over 17 years. In contrast, Republican states slavishly adhere to the most outrageous court decisions. Thus, only one side tends to comply with the Judiciary. Why?
At this point, five Supreme Court justices have the final say over what is deemed ‘Constitutional,’ in effect, ruling the country. The Framers of the Constitution never contemplated that a group of ‘elites’ would overrule the will of the People.
Our federal judicial oligarchy believes their power is unchecked. This is the greatest threat to the Republic in our history, and must be overthrown, or there will be no Republic.
