Lysander Spooner’s Case Against Judicial Supremacy
“An unconstitutional judicial decision is no more binding than an unconstitutional legislative act.”
That was Lysander Spooner, utterly rejecting the doctrine of judicial supremacy – the dangerous notion that a judicial opinion becomes law simply because judges say so.
Spooner offered a series of powerful insights and warnings – many of which echoed the words of the Founders themselves. These principles once formed the bedrock of American constitutional understanding. But today, they’ve been almost entirely forgotten – or worse, ignored.
Ultimately, Spooner’s message was clear: judicial supremacy isn’t just unconstitutional – it’s tyranny.
WHAT IS JUDICIAL SUPREMACY?
Judicial supremacy is essentially the idea that the Constitution means whatever the courts – especially the Supreme Court – say it means, until they change their minds.
This places judicial opinions above Congress, the president, the states, the people – and even above the text of the Constitution itself.
But, as Spooner explained in A Defence for Fugitive Slaves (1850), and as the text of the Constitution plainly affirms, the supreme law of the land is the Constitution – not the opinions about the Constitution by anyone..
“The Constitution is the fundamental, the paramount law, and all officers of the government are sworn to support it.”
NO FORCE UNLESS CONSTITUTIONAL
For Spooner, a judicial opinion doesn’t have any magical power. It only gains authority and supremacy when it aligns with the Constitution
“A judicial decision, as such, has therefore no intrinsic authority at all; its constitutional authority rests wholly upon its being in accordance with the constitution.”
In short, just because the Supreme Court issues an opinion doesn’t automatically make it constitutional. Judges are just as capable of violating the Constitution as Congress or the president.
“There is not a syllable in the constitution that makes a decision of the judiciary—of its own force, and without regard to its correctness—binding upon anybody, either upon the executive, or the people.”
And again:
“If a judicial decision be according to law, it is binding; if not, not.”
Replacing constitutional supremacy with judicial supremacy means there’s no limit to what the courts can declare “constitutional.” That, Spooner warned, is the road to despotism.
“If a judicial decision contrary to the Constitution were binding simply because it were a judicial decision, the judiciary could constitutionally make themselves absolute sovereigns at once.”
This would transform judges into a permanent class of unelected rulers with unlimited power.
“If we take the decision as authority for the meaning of the constitution, all decisions will of necessity be constitutional, and the judges are of course, constitutionally speaking, absolute despots.”
THE FOUNDERS AGREED: THE CONSTITUTION IS SUPREME
Spooner wasn’t inventing these ideas out of thin air. He was echoing what the Founders said again and again.
Even Alexander Hamilton – often viewed as the opposite of Spooner in political philosophy – made the exact same point in Federalist No. 78.
“There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.”
He continued:
“To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.”
James Madison also reminded us of the true pecking order of power and authority in the constitutional system.
“The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind.”
St. George Tucker echoed the principle clearly – if something isn’t in line with the Constitution, it simply isn’t law. It’s a nullity.
“Acts of Congress, to be binding, must be made pursuant to the Constitution; otherwise they are not laws, but a mere nullity; or what is worse, acts of usurpation.”
Despite what you may have heard – even Chief Justice John Marshall in Marbury v Madison took the side of constitutional supremacy over judicial supremacy.
“in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.”
Marshall made it crystal clear: the Constitution comes first – always – and every branch is bound by it.
“Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.”
THE FOUNDERS REJECTED JUDICIAL INFALLIBILITY
The founders certainly understood that courts could be wrong – like anyone in any branch of government.
“our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps.”
“the constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots. it has more wisely1 made all the departmen[ts] co-equal and co-sovereign within themselves.”
James Madison agreed in the Report of 1800:
“The resolution supposes that dangerous powers not delegated may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution.”
THE RIGHT – AND DUTY – TO RESIST
From here, Spooner takes us to the next logical step: Since unconstitutional judicial opinions aren’t legally binding, the people have a right to resist them.
“An unconstitutional judicial decision is no more binding than an unconstitutional legislative enactment – and a man has the same right to resist, by force, one as the other, and to be tried for such resistance by a jury, who judge of the law for themselves.”
And for public officials – who take an oath to support the Constitution – this isn’t just a right. It’s a duty.
“The executive has a qualified veto upon the passage of laws, in most of our governments, and an absolute veto, in all of them, upon the execution of any laws which he deems unconstitutional; because his oath to support the constitution (as he understands it) forbids him to execute any law that he deems unconstitutional.”
BOUND BY OATH
Spooner’s insistence that unconstitutional judicial opinions should not be enforced wasn’t new. It was rooted in a core principle shared across the founding generation: each branch of government – and each person taking an oath to the Constitution – has a duty to resist violations of that Constitution, regardless of where they come from.
Chief Justice John Jay, writing in 1792, made it clear that this duty wasn’t passive. It required action.
“That by the Constitution of the United States the Government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose encroachments on either.”
Thomas Jefferson made the same point crystal clear: no branch of government is required to defer to the others.
“Each of the three departments has equally the right to decide for itself what is its duty under the Constitution, without any regard to what the others may have decided for themselves under a similar question.”
Jefferson wasn’t alone. St. George Tucker made the same principle absolutely clear.
“The people are not only not bound by them [unconstitutional acts], but the several departments and officers of the governments, both federal and state, are bound by oath to oppose them… They must violate that oath whenever they give their sanction, by obedience or otherwise, to any unconstitutional act of any department of the government.”
ENFORCEMENT DEPENDS ON THE EXECUTIVE
In response to warnings from Anti-Federalists like Brutus – who feared that the judiciary would eventually dominate the other branches and the states – Alexander Hamilton insisted that such fears were unfounded.
In Federalist No. 78, he described the judiciary as the “least dangerous” branch of government because it possessed no enforcement power.
“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 whatever. 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 judgments.”
Hamilton’s argument cuts both ways. If the judiciary can’t enforce its own decisions, then someone else must – the executive. And if that’s true, then it logically follows that the executive can also choose not to enforce a judicial opinion – especially one that violates the Constitution.
James Wilson made the same point in no uncertain terms.
“The President of the United States could shield himself and refuse to carry into effect an act that violates the Constitution.”
This wasn’t just theoretical. Tucker viewed this as one of the most important safeguards in the entire system of government.
If we consider the nature of the judicial authority, and the manner in which it operates, we shall discover that it cannot, of itself, oppress any individual; for the executive authority must lend its aid in every instance where oppression can ensue from its decisions: whilst on the contrary, its decisions in favour of the citizen are carried into instantaneous effect, by delivering him from the custody and restraint of the executive officer, the moment that an acquittal is pronounced. And herein consists one of the great excellencies of our constitution
When Spooner wrote about these principles in the 1850s, he was simply restating what the Founders had made clear from the beginning. From Madison to Hamilton, Jefferson to Marshall, they consistently affirmed the same thing: The Constitution is supreme – and when any branch oversteps its limits, it’s not just the people’s right to resist. It’s their duty.
THE FINAL WARNING
If judicial opinions are law just because judges say so – then we don’t have a constitution.
That’s the warning we got from Lysander Spooner. And from his writing, we’re left with five essential truths:
- The idea that judicial opinions are binding because they are judicial opinions is the definition of tyranny.
- The Constitution is the supreme law of the land.
- Judicial opinions are only binding when they’re in accordance with the Constitution.
- Every official at every level of government takes an oath to the Constitution – not to the opinions about the constitution by anyone.
- Refusing to enforce unconstitutional judicial opinions isn’t just a good idea – it’s required by that oath.
Spooner nailed it – judicial supremacy is a recipe for total tyranny:
“The idea, so constantly asserted, that the permanent judiciary, the judges, have a right to decide all constitutional questions, authoritatively for the people, is one of those gross impostures, by which men have always been defrauded of their rights.”
The bottom line – Lysander Spooner was right. Judicial supremacy isn’t law – it has no basis in the constitution. It’s tyranny.
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