MK3 BLOG

MKitch3|Sept. 22,2025

Every country has its favorite myths. Ours are red, white, blue, and stamped with two words that people swear mean the same thing: freedom and liberty. They don’t. They never did. And the fact we keep pretending otherwise is one of the reasons American law, politics, and daily life have been one long tug-of-war between what we think we’re promised and what we’re actually allowed.

The Bare Bones: Legal and Philosophical Roots

Freedom is the raw condition of being unconstrained. It’s the natural state—what philosophers call a negative right, an absence of interference.

Liberty is freedom that has been recognized, structured, and (inevitably) limited by law. It’s not the absence of restraint but the protection against arbitrary restraint.

Thomas Hobbes, in Leviathan (1651), defined liberty as “the absence of external impediments.” John Locke upped the ante, calling liberty a natural right, but one that had to exist under law for civil society to function.

Black’s Law Dictionary draws the line clean:

• Freedom: “The absence of necessity, coercion, or constraint.”

• Liberty: “Freedom from arbitrary restraint, especially by government.”

So freedom is the wild field. Liberty is the fenced pasture the state swears you can run around in.

Founding Era: The Word Choices That Still Haunt Us

• Declaration of Independence (1776): Jefferson wrote “life, liberty, and the pursuit of happiness.” He didn’t say “freedom.” Liberty here was a philosophical ideal, imported straight from Locke.

• Constitution (1787): The preamble promised to “secure the blessings of liberty to ourselves and our posterity.” The Bill of Rights mixed the two: freedom of speech, freedom of the press—but framed them as liberties that government couldn’t touch.

• Federalist Papers (1787-88): Madison and Hamilton tossed the words around strategically. Madison warned that liberty without structure dissolves into anarchy. Hamilton argued too much freedom would shred the Union.

The Founders, in short, used both words with purpose. Freedom was a condition; liberty was a principle.

The Timeline: Law, Politics, and the Shrinking (or Expanding) Circle

1798 – The Alien and Sedition Acts

• Congress criminalized criticism of the government. Freedom of speech existed in theory; liberty was mutilated in practice. Jefferson and Madison pushed back in the Virginia and Kentucky Resolutions, claiming liberty was being crushed by federal overreach.

1860s – The Civil War and the 13th Amendment

• Lincoln’s rhetoric danced between liberty and freedom. He said at Gettysburg the war would bring a “new birth of freedom.” The legal system codified liberty for the formerly enslaved—but reality lagged a century behind.

1866 – Civil Rights Act

• Congress declared all persons born in the U.S. citizens with “full and equal benefit of all laws.” Freedom on paper. Liberty in practice? Still throttled by Black Codes and Jim Crow.

1917–1918 – The Espionage and Sedition Acts

• World War I saw dissent criminalized again. Eugene Debs went to prison for anti-war speech. The Supreme Court (in Schenck v. United States, 1919) blessed it, birthing the “shouting fire in a crowded theater” doctrine. Freedom got an asterisk.

1941 – FDR’s Four Freedoms Speech

• Roosevelt reframed freedom globally: freedom of speech, freedom of worship, freedom from want, freedom from fear. Two were classic liberties; two were positive rights requiring massive government action.

1960s – Civil Rights Movement

• Martin Luther King Jr. talked about freedom ringing from every mountainside, but the fight was about liberty—forcing the state to honor rights it had already promised. Civil Rights Act (1964) and Voting Rights Act (1965) tried to close the gap.

2001 – The Patriot Act

• Freedom shrank in the name of security. Liberty was recast as something you have only if you’re not suspected of terrorism. The state’s leash tightened.

2020 – Pandemic Restrictions

• “Freedom” became the battle cry of those resisting mandates. “Liberty” became the lawyered-up justification for state power: public health outweighed personal autonomy.

Quotes That Show the Creep

• Patrick Henry (1775): “Give me liberty, or give me death!” — fiery, but limited to a select class.

• Abraham Lincoln (1864): “The world has never had a good definition of the word liberty.” — still true.

• Benjamin Franklin (1759): “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” — a warning ignored every generation.

• Justice Brandeis (1928, Olmstead v. U.S. dissent): “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

Freedom vs. Liberty in the Real World

• Speech: Freedom means you can say what you want. Liberty means the courts decide if what you said qualifies as “protected.”

• Travel: Freedom suggests you can move wherever. Liberty is why you still need ID at TSA and a passport at borders.

• Property: Freedom says you own your land. Liberty is the zoning board telling you what you can’t build on it.

Why It Still Matters

Freedom is the banner. Liberty is the contract. One fires the imagination, the other locks horns with reality. Every major American conflict—political, social, or cultural—sits in that gap.

• Too much freedom without structure = chaos (see: mob rule).

• Too much liberty without freedom = authoritarianism dressed in legalese.

The Founders knew it, Lincoln knew it, Roosevelt twisted it, and we’re still choking on the difference.

The Punchline

Freedom is what you claim.

Liberty is what survives the lawyers, the judges, and the politicians.

The American project, at its best, is keeping those two words close enough that citizens don’t feel conned. At its worst, it’s watching the distance grow until freedom becomes rhetoric, and liberty becomes permission slips.

MKitch3|Sept 20,2025

This post continues the thread I began in an earlier article, Principles of Tyranny. Part of the inspiration for this addition comes from the Tenth Amendment Center. I’m going to keep hammering on the theme of tyranny, because it’s not a subject that can be brushed off in a single essay. Future posts will dig even deeper, each one adding more detail and context.

It’s an essential topic—one that every American should be well-versed in and ready to call out wherever it rears its head.

The Partisan Road to Tyranny: George Washington’s Fatal Prediction

George Washington’s Fatal Warning and Prediction

“A frightful despotism.”

George Washington knew what was coming. His Farewell Address, published on September 19, 1796 in the American Daily Advertiser, wasn’t just a retirement notice. It was a dire warning against things like skyrocketing debt and entangling foreign alliances.

But his sharpest, most prophetic warnings were about political parties and the constant fight for power they would unleash, a fight that could only end in total tyranny

A WARNING FOR THE AGES

Washington saw political parties as such a great threat because they were the most dangerous expression of a deeper poison: the mindset of putting party loyalty above all else.

“Let me now take a more comprehensive view, & warn you in the most solemn manner against the baneful effects of the Spirit of Party, generally.”

He argued this partisan instinct, while a universal human trait, gets supercharged in a republic where it grows to its most extreme and destructive form.

“This spirit, unfortunately, is inseperable from our nature, having its root in the strongest passions of the human Mind. It exists under different shapes in all Governments, more or less stifled, controuled, or repressed; but in those of the popular form it is seen in its greatest rankness and is truly their worst enemy.”

This mentality inevitably turns politics into an endless cycle of weaponized power and revenge that creates a “frightful despotism.”

“The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissention, which in different ages & countries has perpetrated the most horrid enormities, is itself a frightful despotism.”

This chaotic warfare between factions is just a temporary phase, a prelude to something far worse: a stable and permanent tyranny.

“But this leads at length to a more formal and permanent despotism.”

Washington saw the endgame clearly: a population suffering from constant strife will see a dictator not as a threat, but as a welcome relief.

“The disorders & miseries, which result, gradually incline the minds of men to seek security & repose in the absolute power of an Individual: and sooner or later the chief of some prevailing faction more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty.”

THE DAILY DAMAGE

Washington saw two threats: immediate and long-term. Permanent despotism lay far ahead in the future. But the daily rot of partisanship was the immediate disease paving the road to get there.

“Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight) the common & continual mischiefs of the spirit of Party are sufficient to make it the interest and the duty of a wise People to discourage and restrain it.”

He laid out the specific consequences: a government that can’t function (don’t threaten us with a good time!), a public poisoned by paranoia, and mobs in the streets.

“It serves always to distract the Public Councils and enfeeble the Public Administration. It agitates the Community with ill founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot & insurrection.”

Worse, he warned that these internal divisions act as an open invitation for foreign enemies to corrupt the entire system.

“It opens the door to foreign influence & corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country, are subjected to the policy and will of another.”

FUEL FOR THE FIRE

Washington conceded a critical point: under a king, political factions can act as a useful check on absolute power.

“There is an opinion that parties in free countries are useful checks upon the Administration of the Government and serve to keep alive the spirit of Liberty. This within certain limits is probably true—and in Governments of a Monarchical cast Patriotism may look with endulgence, if not with favour, upon the spirit of party.”

But in a republic, he argued, that same spirit is not a check on power; it’s gasoline poured on a fire.

“But in those of the popular character, in Governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And there being constant danger of excess, the effort ought to be, by force of public opinion, to mitigate & assuage it. A fire not to be quenched; it demands a uniform vigilance to prevent its bursting into a flame, lest instead of warming it should consume.”

He then connected the dots. The partisan firefight inevitably tempts the winners to ignore the Constitution and consolidate power.

“It is important, likewise, that the habits of thinking in a free Country should inspire caution, in those entrusted with its administration, to confine themselves within their respective Constitutional spheres, avoiding in the exercise of the Powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism.”

WEAPON AGAINST FREEDOM

Washington built his case for the Constitution’s design on a brutally honest assessment of human nature: people are addicted to power and gladly abuse it.

“A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart is sufficient to satisfy us of the truth of this position.”

Because of this, he argued that guarding these boundaries is just as important as drawing them.

“The necessity of reciprocal checks in the exercise of political power; by dividing and distributing it into different depositories, & constituting each the Guardian of the Public Weal against invasions by the others, has been evinced by experiments ancient & modern; some of them in our country & under our own eyes. To preserve them must be as necessary as to institute them.”

Washington pointed to the amendment process as the legal way to change things. Don’t like how power is divided? Use the process. It’s also a reminder that the people are in charge, not the government.

“If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.”

But he warned that ignoring the rules to achieve a short-term goal – no matter how noble it seems – is the classic tool of tyrants: a weapon to destroy freedom.

“But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

THE BRUTAL TRUTH

The largest government in the history of the world loves it when the people fight among themselves.

This creates a vicious feedback loop. The bigger the power in government, the more vicious the fight to control it. And the more vicious the fight, the more power people demand the government take to restore order.

It’s the exact cycle Washington warned would produce a “frightful” and “permanent despotism.”

The end result? “The ruins of public liberty.”

These are George Washington’s farewell warnings that almost everyone ignores today – and if we don’t heed them, the worst is yet to come.

MKitch3|Sept 19, 2025

Executive Summary

The Constitution of the United States explicitly declares itself—and laws made in pursuance thereof—as the supreme law of the land (Article VI, Clause 2). Nowhere does it elevate the Supreme Court to that status. Yet over time, through practice and precedent, the Court has come to be treated as the final arbiter of constitutional meaning. This paper examines the historical roots of this transformation, the warnings issued by presidents and founders against judicial supremacy, the legal and political events that entrenched it, and the implications for American constitutional government today.

I. Constitutional Text: What the Founders Wrote

Article VI, Clause 2 (Supremacy Clause):

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Key features:

• The Constitution itself is supreme.
• Laws made pursuant to it are supreme.
• Judges (state and federal) are bound by it.
• Nowhere does it say “the Supreme Court’s interpretations are the supreme law.”

The judiciary is established in Article III, with jurisdiction defined, but there is no explicit claim of “judicial supremacy.” The very idea of the Court being the “final word” was created later, politically and culturally.

II. The Birth of Judicial Review

Marbury v. Madison (1803):

Chief Justice John Marshall declared it the duty of the judiciary “to say what the law is.” This was the first assertion of judicial review: the idea that courts could strike down laws inconsistent with the Constitution.

Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.”

The Constitution never states this directly. Judicial review was widely accepted as reasonable, but the claim that the Court’s interpretations are binding on everyone—forever—was a leap.

III. Early Resistance to Judicial Supremacy

Jefferson’s Warnings

Thomas Jefferson fiercely opposed judicial supremacy:

• 1820 Letter to William Jarvis:
  “You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
• He argued that each branch had the equal right to interpret the Constitution:
  “The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

Jefferson’s philosophy: every branch has the duty to uphold the Constitution, not defer to judges.

Jackson’s Defiance

President Andrew Jackson rejected judicial supremacy during the Worcester v. Georgia controversy (1832). While the quote “John Marshall has made his decision; now let him enforce it” is apocryphal, Jackson did ignore the Court’s decision, demonstrating his belief that the judiciary did not rule over the executive branch.

IV. Lincoln and the Civil War Context

Abraham Lincoln, confronting the Dred Scott v. Sandford (1857) decision, argued that while Court decisions bind the parties to a case, they do not dictate national policy:

• First Inaugural Address (1861):
  “The candid citizen must confess that 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 resigned their government into the hands of that eminent tribunal.”

Lincoln respected Court rulings in limited scope but denied the notion that Dred Scott defined the Constitution forever.

V. The 20th Century Rise of Judicial Supremacy

Post–Civil War Developments

• The Court began asserting broader constitutional interpretations in commerce and civil rights cases.
• Precedent hardened around the idea that the Court’s rulings were binding on all levels of government.

Civil Rights Era

• Brown v. Board of Education (1954) held racial segregation unconstitutional. Its moral force and federal enforcement cemented the Court as the “final word.”
• President Eisenhower used troops to enforce Brown in Little Rock (1957), showing executive backing.

This set a new standard: Court rulings would be treated as binding constitutional commands, not mere interpretations.

VI. Modern Expansion of Judicial Supremacy

Key examples of the Court reshaping law and policy:

• Roe v. Wade (1973): Created a national right to abortion.
• Obergefell v. Hodges (2015): Legalized same-sex marriage nationwide.
• Citizens United v. FEC (2010): Redefined campaign finance as protected speech.
• Dobbs v. Jackson (2022): Overturned Roe.

Each of these cases demonstrates the Court effectively setting national policy—without legislation. Critics argue this elevates nine unelected justices above Congress, the President, and the people.

VII. Departmentalism vs. Judicial Supremacy

• Judicial Supremacy: The Court is the final interpreter; its rulings bind all.
• Departmentalism (Jefferson, Jackson, Lincoln): Each branch has equal right and duty to interpret the Constitution.

Departmentalism maintains balance but risks chaos if branches openly defy one another. Judicial supremacy provides stability but risks oligarchy.

VIII. Modern Critiques

• Left-leaning critiques: Court is captured by conservative ideology and unresponsive to democratic will.
• Right-leaning critiques: Court has usurped lawmaking powers and imposed liberal social policies.
• Populist critique (both sides): Nine unelected justices should not decide issues that Congress avoids.

Public trust in the Court has fallen sharply in the 21st century, with polling showing historically low approval after Dobbs (2022).

IX. Rebalancing Options

1. Constitutional Amendment: Clarify limits on judicial review.
2. Jurisdiction Stripping: Congress can limit the Court’s jurisdiction under Article III.
3. Term Limits for Justices: Reduce lifetime judicial entrenchment.
4. Revive Departmentalism: Presidents and Congress openly interpret the Constitution independently.

X. Conclusion

The U.S. Constitution is the supreme law of the land. The idea that Supreme Court opinions hold that title is a political invention, not a constitutional command. From Jefferson’s denunciations to Lincoln’s resistance, history is filled with leaders who saw the danger of judicial supremacy.

Today, with polarization and declining trust in institutions, America faces the same question Jefferson posed two centuries ago: Do we live under a Constitution, or under the rulings of nine judges? The answer determines whether sovereignty lies with the people and their representatives, or with an unelected judicial elite.

Appendix: Key Quotes

• Jefferson (1820): “The Constitution… is a mere thing of wax in the hands of the judiciary.”
• Jackson (1832): “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges.”
• Lincoln (1861): “The people will have ceased to be their own rulers… resigned their government into the hands of that eminent tribunal.”

Appendix: Timeline of Major Cases and Events Shaping Judicial Supremacy

Early Republic and Foundations

1787 – U.S. Constitution Ratified

• Article VI establishes the Constitution (and laws made in pursuance thereof) as the supreme law of the land.
• No explicit mention of judicial supremacy.

1791 – First Bank of the United States

• Early dispute over implied powers. Hamilton (pro) vs. Jefferson (anti). Congress charters the Bank anyway.

1803 – Marbury v. Madison

• Chief Justice John Marshall establishes judicial review.
• Quote: “It is emphatically the province and duty of the judicial department to say what the law is.”
• This creates the precedent that courts may strike down unconstitutional laws.

Expansion of Federal Power

1819 – McCulloch v. Maryland

• Court upholds Congress’s power to create the Second Bank.
• Marshall: the Necessary and Proper Clause allows implied powers.
• Significance: Strengthened national supremacy, widened scope of implied powers, and bolstered judicial authority.

1824 – Gibbons v. Ogden

• Court broadly interprets the Commerce Clause, expanding federal power.

1832 – Worcester v. Georgia

• Court rules that Georgia laws had no authority in Cherokee territory.
• President Jackson refuses to enforce it, exposing limits of judicial authority when the executive resists.

Antebellum Crisis

1857 – Dred Scott v. Sandford

• Court rules that African Americans cannot be citizens and Congress cannot ban slavery in the territories.
• Seen as judicial overreach; inflames sectional tensions.
• Lincoln later rejects the decision’s authority beyond the specific case.

1861 – Lincoln’s First Inaugural Address

• Rejects judicial supremacy:
  “The candid citizen must confess that if the policy of the government… is to be irrevocably fixed by decisions of the Supreme Court… the people will have ceased to be their own rulers.”

Reconstruction and Early 20th Century

1869 – Texas v. White

• Court rules secession unconstitutional, bolstering the authority of federal institutions after the Civil War.

1896 – Plessy v. Ferguson

• Court upholds racial segregation under “separate but equal.”
• Judicial supremacy entrenches systemic racism for decades.

1913 – Federal Reserve Act

• Congress creates the Federal Reserve under implied constitutional powers. Judicial precedent (McCulloch) provides cover.

1935 – Gold Clause Cases (Norman v. Baltimore & Ohio Railroad, Perry v. United States)

• Court upholds Congress’s sweeping power to regulate monetary policy, even voiding private contracts.
• Judicial blessing of federal financial authority.

Civil Rights and the High Tide of Judicial Supremacy

1954 – Brown v. Board of Education

• Overturns Plessy, declaring school segregation unconstitutional.
• Becomes a defining moment for judicial supremacy as national policy-setter.

1957 – Little Rock Crisis

• President Eisenhower sends troops to enforce Brown.
• Shows judicial decisions backed by executive force become national law in practice.

1973 – Roe v. Wade

• Court creates nationwide abortion rights framework.

• Seen by critics as judicial lawmaking beyond constitutional text.

Late 20th Century – Judicial Policymaking

2000 – Bush v. Gore

• Court halts Florida recount, effectively deciding the presidential election.
• Cemented public view of the Court as political actor.

2010 – Citizens United v. FEC

• Court rules that corporate spending on elections is protected speech.
• Expands First Amendment interpretations, reshaping campaign finance.

21st Century Polarization

2015 – Obergefell v. Hodges

• Court legalizes same-sex marriage nationwide.
• Hailed as a landmark for equality, criticized as judicial overreach bypassing legislatures.

2022 – Dobbs v. Jackson Women’s Health Organization

• Court overturns Roe v. Wade.
• Returns abortion regulation to states, sparking fierce debates over judicial power and legitimacy.

Modern Critiques and Challenges

• Audit the Fed Movement (2000s–present): Efforts to rein in Federal Reserve independence highlight blurred lines between constitutional authority and judicial-accepted precedent.
• Public Trust Decline (2020s): Polling shows trust in the Supreme Court at record lows, suggesting the doctrine of judicial supremacy is being questioned by both left and right.

Concluding Note on the Timeline

From Marbury to Dobbs, the Court has shaped policy more than any other branch by claiming the power to decide constitutional meaning. But moments like Jackson’s defiance, Lincoln’s resistance, and modern political backlash remind us: the Constitution is supreme law. The Court’s supremacy exists only because other branches and the people consent to it.

Introduction

When people say, “the Supreme Court is the law of the land,” they’re echoing a slogan, It’s not a constitutional fact. 

Article VI of the U.S. Constitution is clear: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land.” Nowhere does it say, “the opinions of nine unelected justices are binding scripture.”

Yet in practice, the Court has become just that: the final word, the oracle, the referee in all constitutional disputes. This tension between constitutional supremacy and judicial supremacy has shaped American history from Jefferson to Lincoln to today.

1. The Supremacy Clause as Written

• Article VI, Clause 2 (1787): Declares the Constitution itself, and laws made pursuant to it, as the highest law.
• No mention of the judiciary. No elevation of judicial opinions above the other branches.
• The founders designed a system of co-equal branches, each sworn to uphold the Constitution, not subordinate to one another.

2. Enter Judicial Review (Marbury v. Madison, 1803)

• Chief Justice John Marshall invented judicial review by declaring a law void if it conflicted with the Constitution.
• This was clever politics: the Court claimed a power not explicitly written down, but hard to deny in principle.
• From that point, the Court began carving out a role as the ultimate interpreter, even though nothing in the Constitution gave them “final say.”

3. Jefferson’s Rejection of Judicial Supremacy

• Jefferson feared judicial supremacy would turn into an “oligarchy.” He argued each branch—executive, legislative, and judicial—had the right to interpret the Constitution for itself.
• In an 1820 letter, Jefferson warned: “The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
• Jefferson’s strict constructionist view clashed with Marshall’s expansive reading of implied powers, especially in cases like McCulloch v. Maryland (1819).

4. Jackson and Lincoln Against Judicial Absolutism

• Andrew Jackson ignored the Court in Worcester v. Georgia (1832), allegedly saying, “John Marshall has made his decision; now let him enforce it.” The quote is apocryphal, but the point stands: Jackson didn’t treat the Court’s ruling as the last word.
• Abraham Lincoln, in his First Inaugural (1861), said Court rulings should bind the parties in a case but not “irrevocably fix” national policy. He cited Dred Scott v. Sandford (1857), where the Court ruled African Americans could not be citizens. Lincoln rejected the decision’s broader authority, treating it as a judicial mistake, not the supreme law of the land.

5. The Rise of Judicial Supremacy in the 20th Century

• By the mid-20th century, especially post–World War II, judicial supremacy hardened into convention.
• Brown v. Board of Education (1954) was enforced as binding constitutional law, reshaping civil rights. Whatever one’s view of the outcome, it cemented the Court as final arbiter.
• Presidents and Congresses generally deferred, even when grumbling. The Court’s authority expanded by habit, not constitutional amendment.

6. The Problem of Unelected Power

• The Court today wields immense influence: abortion (Roe v. Wade, Dobbs v. Jackson), same-sex marriage (Obergefell v. Hodges), gun rights (Heller and Bruen), campaign finance (Citizens United), and countless other policy-defining rulings.
• None of these outcomes came from legislation directly. They came from judicial interpretation, binding on the whole nation.
• This makes nine unelected judges—appointed for life—the effective authors of constitutional meaning. Critics see this as aristocracy in robes.

7. Modern Pushback and the “Departmentalism” Argument

• Departmentalism: The idea that each branch interprets the Constitution for itself. Rooted in Jefferson, carried by Lincoln.
• Example: States challenging federal power under “nullification” theories (though historically messy).
• Today, some scholars and politicians argue Congress and the President are not bound to treat Court rulings as universal precedent, only as binding in specific cases.

8. Current Context: Polarization and Court Legitimacy

• Trust in the Court is near historic lows. Decisions like Dobbs (2022) polarized the nation.
• On the right, people complain the Court has been too activist in social policy.
• On the left, critics say the Court is captured by special interests and out of step with popular will.
• Both sides are rediscovering Jefferson’s warning: an unchecked judiciary risks becoming the most dangerous branch.

9. What the Constitution Actually Demands

• The Constitution is supreme. The Court is not the Constitution.
• The Court’s opinions carry weight because the other branches allow them to. The judiciary has no army, no purse—only institutional habit and the compliance of others.
• If Congress or the President took Jefferson’s or Lincoln’s view, they could resist judicial supremacy while still respecting specific rulings in their limited scope.

10. Conclusion

The belief that the Supreme Court is the “supreme law of the land” is a historical and political invention, not a constitutional fact. The Constitution is supreme. The Court is an interpreter, not a sovereign. For most of American history, leaders from Jefferson to Lincoln resisted the idea that nine judges should dictate constitutional meaning for 330 million citizens.

Today, with polarization eroding faith in institutions, the time may be ripe to revisit that debate. Do we want constitutional supremacy, or judicial supremacy? If the Constitution is indeed the supreme law of the land, then Congress, the President, and the people cannot outsource their duty to nine unelected officials.

1. The Real “Supreme Law of the Land”

• Article VI, Clause 2 (the Supremacy Clause): “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land.”
• Notice what’s missing? It doesn’t say “Supreme Court opinions are the supreme law.” It’s the Constitution itself, plus laws passed consistent with it.

2. Where the Court Comes In

• Article III establishes the judiciary. It gives them jurisdiction, but nowhere does it say their interpretations are final and binding on everyone forever.
• Marbury v. Madison (1803) is where Chief Justice John Marshall grabbed judicial review out of thin air. He basically said, “We, the Court, decide what the Constitution means, and our word is final.” That was political sleight-of-hand, not a line in the Constitution.

3. Jefferson’s Warning

Jefferson hated the idea of judicial supremacy. He wrote that allowing judges to be the final arbiters of the Constitution would make them “a despotic oligarchy.” He argued each branch had the right and duty to interpret the Constitution for itself.

Lincoln echoed that in his First Inaugural: the people don’t live under the Court, we live under the Constitution. He respected the Court’s rulings in specific cases, but rejected the idea that a single Court decision should “irrevocably fix” policy for the whole nation.

4. Political vs. Legal Reality

• In theory: The Constitution is supreme. Court rulings are just opinions binding the parties in a specific case.
• In practice: Judicial review and stare decisis (precedent) give Supreme Court rulings enormous gravitational pull. Presidents and Congresses, for the most part, go along because otherwise the system cracks.

5. The Gap Between “Is” and “Ought”

• Is: The Court has made itself the referee. Through precedent, most of America treats its rulings as binding constitutional law.
• Ought: If you’re strict about the text, the Court is not supreme law. Its opinions should be respected but not worshiped. Each branch has equal duty to uphold the Constitution as written, not just as interpreted.

So the fight I’m sniffing at is the same one Jefferson, Jackson, and Lincoln all raised: do we live under a Constitution, or under nine lawyers in robes?