“But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principles of racial discrimination in criminal procedure, and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking, and expands it to new purposes.”

— Robert H. Jackson

Judicial opinions, Korematsu v. United States (1944)

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Robert H. Jackson 96

American judge 1892–1954

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“[T]he constitution controls any legislative act repugnant to it.... It is emphatically the province and duty of the judicial department to say what the law is.... So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.... Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions... It would be giving the legislature a practical and real omnipotence... The judicial power of the United States is extended to all cases arising under the constitution.”

John Marshall (1755–1835) fourth Chief Justice of the United States

5. U.S. (1 Cranch) 137
Marbury v. Madison (1803)

“These decisions give support to a current mistaken view of the Constitution and the constitutional function of this court. This view, in short, is that every major social ill in this country can find its cure in some constitutional principle and that this court should take the lead in promoting reform when other branches of government fail to act. The Constitution is not a panacea for every blot upon the public welfare nor should this court, ordained as a judicial body, be thought of as a general haven of reform movements.”

John Marshall Harlan II (1899–1971) American judge and Associate Justice of the Supreme Court (1899-1971)

Dissenting in Reynolds v. Sims, 377 U.S. 533, 589 (1964).

“There is a difference between constitutional government and judicial dictatorship. And I think it's time we remembered that our Constitution was not put together in order to establish the sovereignty of the judges, it was framed in order to guarantee the sovereignty of the people.”

Alan Keyes (1950) American politician

CPAC 2004, January 24, 2004. http://renewamerica.us/archives/speeches/04_01_24cpac.htm.
2009

“Of course, such judicial misconstruction theoretically can be cured by constitutional amendment. But the period of gestation of a constitutional amendment, or of any law reform, is reckoned in decades usually; in years, at least. And, after all, as the Court itself asserted in overruling the minimum-wage cases, it may not be the Constitution that was at fault.”

Robert H. Jackson (1892–1954) American judge

Source: The Struggle for Judicial Supremacy: A Study in Crisis in American Power Politics (1941), P. 297

“As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”

Byron White (1917–2002) Associate Justice of the U.S. Supreme Court, American football player

Dissenting from the decision of the US Supreme Court in Doe v. Bolton, 410 U.S. 179 at 222 (1973); also applied to Roe v. Wade, 410 U.S. 113 (1973).

“Every being ought to do that which is according to its constitution; and all other things have been constituted for the sake of the superior, but the rational for the sake of one another.”

Marcus Aurelius book Meditations

VII, 55
Meditations (c. 121–180 AD), Book VII

“Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.”

George W. Bush (1946) 43rd President of the United States

"Information Sharing, Patriot Act Vital to Homeland Security" http://georgewbush-whitehouse.archives.gov/news/releases/2004/04/20040420-2.html speech at Kleinshans Music Hall, Buffalo, New York, 20 April 2004; whitehouse.gov (accessed 2006-05-18)
2000s, 2004

“They knew, however, that self-government is still government, and that the authority of the Constitution and the law is still authority. They knew that a government without power is a contradiction in terms. In order that their President and their Congress might not surpass the bounds of the authority granted to them, by the Constitution which the people had made, and so infringe upon the liberties of the people, they established a third independent department of the government, with the power to interpret and declare the Constitution and the law, the inferior courts and the Supreme Court of the United States. No President, however powerful, and no majority of Congress however large, can take from an individual, no matter how humble, that freedom and those rights which are guaranteed to him by the Constitution. The Supreme Court has final authority to determine all questions arising under the Constitution and laws of the United States.”

Calvin Coolidge (1872–1933) American politician, 30th president of the United States (in office from 1923 to 1929)

1920s, Ordered Liberty and World Peace (1924)

“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it…”

Learned Hand (1872–1961) American legal scholar, Court of Appeals judge

“The Spirit of Liberty” - speech at “I Am an American Day” ceremony, Central Park, New York City (21 May 1944).
Extra-judicial writings
Context: What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it… What is this liberty that must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not the freedom to do as one likes. That is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check on their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow.
What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.

“What Americans were really objecting to had nothing to do with constitutional principles. their objection was not to Parliament's constitutional right to levy certain kinds of taxes as opposed to others, but to its effort to collect any.”

Bernard Bailyn book The Ideological Origins of the American Revolution

Source: The Ideological Origins of the American Revolution (1967), Chapter V, TRANSFORMATION, p. 218.

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Robert H. Jackson 96

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