The End of the Rule of Black Robes

The Case for Departmentalism and the End of Judicial Supremacy

On the evening of January 20, 2025, after Trump’s triumphant second inaugural address, the Forty-seventh and two-term President of the United States signed an executive order ending birthright citizenship for children of illegal immigrants born in America. The text of the executive order is short and straight-forward: for any child born in the U.S., if that child’s father is not a citizen or lawful permanent resident, and if the child’s mother is either here illegally or legally but temporarily, that child is not a U.S. citizen. The executive order takes affect 30 days from the date of the order and is not retroactive.

Importantly, the order describes American citizenship as a “privilege” that is a “priceless and profound gift.” Official U.S. policy for decades that has wantonly and carelessly distributed citizenship to children of illegal aliens like a billionaire handing out dollar bills, and has shredded the meaning of citizenship and sold our birthright for cheap votes. The executive order grounded its constitutionality in the Citizenship Clause (Section 1) of the Fourteenth Amendment which proclaims that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Thus, unlike many of Trump’s other executive orders—as statutory enforcement, administrative oversight, or rightful executive prerogatives (such as declaring a national emergency)—this order claims to be properly interpreting and enforcing the U.S. Constitution.

The response to Trump’s birthright citizenship executive order was immediate. Trump’s base applauded, almost in disbelief that the President was following through on his campaign promises. Democrats and their surrogate media complex decried the order as un-American, unconstitutional, and dictatorial. Twenty-two states sued to block the executive order, and on Thursday, January 23, U.S. District Judge John Coughenour of Seattle placed an injunction on the order, temporarily blocking it. Among other things, the federal judge declared that the order “violates the Fourteenth Amendment and Immigration and Nationality Act.” In the hearing, Judge Coughenour (who was appointed by Reagan) relayed his own opinion that the order “boggles the mind” and is “blatantly unconstitutional.”

There are two separate matters on this issue. The first is the meaning of the Fourteenth Amendment as to the nature and extent of citizenship. That issue has been written on extensively by Amy Swearer, Edward J. Erler, John Eastman, Michael Anton, myself, and many others. Needless to say, we do not believe that Trump’s birthright citizenship order is unconstitutional; instead, it is the opposite: it is in keeping with the original and intended meaning of the Fourteenth Amendment, and thus it is appropriately restoring and enforcing constitutional law. 

The other issue is what concerns us here, namely, what should Trump do in the face of this injunction? Any other Republican president would abide by the injunction and begin the torturous, expensive, and lengthy litigious process of challenging the ruling all the way up the Supreme Court if necessary. But Trump is not like any Republican president and there is another path—a more risky but also potentially fruitful—path he could take. Trump could ignore the federal judge and continue to enforce his executive order. In denying the court judicial supremacy, he would be standing on firm constitutional grounds.

Judicial Supremacy in the Constitution and Case Law

The founding generation knew there would have to be a national superior court to settle conflicts in the Early Republic. Thus, Art. III, Section 2 of the Constitution assigns to the Supreme Court “cases and controversies” applying to law and (general) equity relating to the Constitution, the laws of the U.S., and all treaties the nation enters into. In Federalist 22, Hamilton named “the want of a judiciary power” as one of several defects in the Articles of Confederation. Hamilton reasoned that agreements as basic as international treaties required a national “supreme tribunal” to determine their true meaning and operation so that the nation could function as a single unit and not splinter into a hundred quarreling factions.

The establishment of the Supreme Court raised two critical questions: did the Court have the prerogative to review laws passed by Congress and actions taken by the Executive as to their constitutionality (known as judicial review)? And if so, were the Court’s decisions on these matters a final authority that the other two branches of government, the state governments, and the people in general had to accept (known as judicial supremacy)? In Federalist 80, Hamilton granted that the Court could review both the laws of the United States and the provisions “expressly contained in the articles of union” (i.e., the Constitution):

If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislature, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, decides the question. … [In addition] there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the state legislatures, without some constitutional mode of enforcing the observance of them? … No man of sense will believe that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the state laws, or an authority in the federal courts, to overrule such as might be in manifest contravention of the articles of union.

Accordingly, almost all scholars agree that the Court has the right to judicial review, but the matter of judicial supremacy continues to be an issue of contentious debate. 

The Constitution declares itself to be “the supreme Law of the Land” (Art. VI, Sec. 2); yet it is silent as to who has the right to interpret this supreme law. While the Supreme Court may rightly settle cases and controversies of law and justice among the people, who alone reserves the right to determine the meaning, scope, and proper application of the Constitution? To grant to the Supreme Court the right of judicial review of laws and treaties, domestic and foreign, is to grant it the right of judgment as to what the Constitution says and means. Yet to deny the Court the final word on statutory and constitutional interpretation threatens to destabilize the country: could the President, Congress, state governors, or state legislatures simply ignore the Court’s decision, declaring that their interpretation is more valid? In other words, for many lawyers and constitutional scholars, judicial review seems to logically and necessarily imply judicial supremacy for the sake of constitutional and political coherence. And, in fact, this is how the Supreme Court has come to function in America.

The case for judicial supremacy often proceeds in the following manner. In Federalist 81, Hamilton argued that “there ought to be one court of supreme and final jurisdiction,” a proposition which he believed “is not likely to be contested.” Previously, in Federalist 78, Hamilton had declared that “the interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.” This clearly established in Hamilton’s mind the legality of judicial review, and at first blush seems to hint at judicial supremacy.

In the famous 1803 case of Marbury v. Madison, Justice John Marshall decided in favor of William Marbury, who had been appointed as Justice of the Peace in the District of Columbia at the last hour of John Adam’s presidency under the Judiciary Act of 1801. Under Jefferson’s incoming administration, Secretary of State James Madison had refused to deliver Marbury his commission. In his decision, Justice Marshall explained the Constitution’s delineation of the Supreme Court’s “original jurisdiction” versus “appellate jurisdiction,” the latter of which was under the purview of Congress, and struck down that portion of the Judiciary Act of 1789 whereby Congress had unconstitutionally granted the original right of issuing a mandamus to the Court. In the course of describing fundamental (i.e., constitutional) versus ordinary (i.e., statutory) law, as well as the separate powers and responsibility of Congress versus the Courts, Judge Marshall declared that

If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. (5 U.S. [1 Cranch] at 177 [1803]. Italics added).

In other words, the Supreme Court is not bound by what it deems to be an unconstitutional legislative act, for it is bound only to the authority of the Constitution. Yet to know what the acts says, and if and how it is constitutional or not, the Court must determine what both the act and the Constitution say and what they mean.

Scholars who defend this reasoning as implying judiciary supremacy on the part of the Court often point to a later case under the Warren Court, that of Cooper v. Aaron (358 U.S. 1 [1958]). The case before the Court in this instance related to state and local defiance in Arkansas of the Supreme Court’s decision to desegregate public schools in Brown v. Board of Education (1954). In a per curiam decision, the Court upheld its prior ruling and declared Arkansas’ resistance illegal:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared … that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land. (358 U.S. at 18. Italics added)

Accordingly, the federal government today operates under the assumption of the Supreme Court’s prerogative of supremacy in its interpretation of the Constitution and congressional law over all other federal branches, state officials, and the people. This is not to say that there hasn’t been resistance to judicial supremacy throughout American history, for there has been. In 1801, newly inaugurate Thomas Jefferson pardoned several persons convicted and imprisoned of seditious and treasonous speech under the 1798 Alien and Sedition Acts (an Act passed by Congress and the convictions under which had been upheld by the Court). This was, in essence, an exercise of the presidential power to oppose a law President Jefferson considered to be blatantly unconstitutional.

In 1832, President Andrew Jackson vetoed Congress’s extension of the Second Bank charter for a national bank, essentially rebuffing not only Congress but also the Supreme Court in their 1819 decision of McCulloch v. Maryland (17 U.S. 316) that had upheld the constitutionality of the national bank. In his veto message, Jackson expounded on the Necessary and Proper Clause (Art. I, Sec. 8), rejecting the notion that the bank charter was a necessary extension of congressional constitutional powers, and denounced the legal status of the bank as a government-sponsored private entity.

However, perhaps the most famous case of executive defiance of the federal judiciary is Abraham Lincoln’s suspension of the writ of habeas corpus in 1861. In that instance, Chief Justice Robert Taney (author of the infamous Dred Scott case), writing for the Maryland Circuit Court in Ex Parte Merryman (17 F. Cas. 144 [C.C. Md. 1861] [No. 9,487]), ordered Lincoln to uphold the writ for those being held on charges of insurrection and disturbance of the peace (i.e., those blocking federal troops from protecting the Capitol). Lincoln refused Taney’s order, but did so in a coy and ambiguous way and under extraordinary circumstances. Critics also point to the fact that Lincoln was not defying a ruling from the Supreme Court, but a lower court. Thus, perhaps Lincoln’s actions do not establish precedent after all.

It is fair to say that judicial supremacy is accepted by the majority of constitutional scholars and political officers in government. Yet is it possible to grant to the Court the power of judicial review while denying it the right of judicial supremacy?

Three Co-Equal Departments

The alternative to judicial supremacy is known as Departmental Theory. Under this interpretation of the Constitution, each of the three branches of government has co-equal and coordinate powers to interpret and act upon their own powers as enumerated in the Constitution. This view has good attestation at the time the Constitution was drafted, in early Supreme Court law, and in the actions of Congress, the President, and state governors and legislatures throughout American history.

There is no doubt that the essential function of the Supreme Court is judgment of the law—not will (the Executive) or legislative act (the Congress)—something that a more complete separation of powers entrusted to the Judiciary when it was removed from within the Legislature (as under a parliamentary form of government). In Federalist 81, Hamilton explained his view of qualified departmentalism:

It is not true … [that] the legislatures of the particular states, can rectify the exceptionable decisions of [the] courts, in any other sense than might be done by a future legislature of the United States. The theory neither of the British, nor the state constitutions, authorizes the revisal of a judicial sentence, by a legislative act. Nor is there anything in the proposed constitution more than in either of them, by which it is forbidden. In the former as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature without exceeding its province cannot reverse a determination once made, in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the state governments, as to the national government, now under consideration. (Italics added).

In essence, Hamilton says that the Constitution is silent on this issue, and the matter will have to be decided case-by-case according to the circumstances. Earlier, in Federalist 78, Hamilton suggested what could be done when there is a conflict over interpretation by different federal branches.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provision in the constitution. …

Hamilton was rightly concerned about placing too much power in the national legislature that could slide toward tyranny: the ability of Congress to both make and interpret the law for themselves without any external check. Hamilton continued:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. (Italics added).

Hamilton’s focus was the proper order of law and decision-making in America: the people are sovereign, and they create fundamental constitutional law through their state conventions; from fundamental law, the three branches of government receive their enumerated powers. In cases of conflicting interpretation over the laws and the Constitution, each branch is equal (but separate) with the others, able (necessarily so) to interpret its own constitutional provisions so that it can fulfill its duties. While judicial review is granted to the Supreme Court, as well as more weight given to his rightful purview of legal judgment, the founders did not endorse judicial supremacy for that would have destroyed the very basis of separation of powers and checks and balances.

James Madison articulated the best defense of Departmentalism in Federalist 49. There, he intoned that

As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived; it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves; who, as the grantors of the commission, can alone declare its true meaning and enforce its observance?

In addition, Departmental Theory was actually presupposed by Justice Marshall in his Marbury decision. There, Marshall insisted that the Constitution is a “superior, paramount law, unchangeable by ordinary means.” While he applied this to Congress, it can just as easily be applied to the Supreme Court. Every person agrees that a flagrantly unconstitutional act upheld by the Court (e.g., the imprisonment and immediate execution of political protestors without any First Amendment or judicial rights accorded to them) would necessarily require that the President block and oppose it. This would be his constitutional, moral, and divine duty. Since this is the case, judicial supremacy, both as a constitutional theory and as a logical conclusion from judicial review, fails.

The rebuke of judicial supremacy and the elevation of Department Theory is not to deny that the Supreme Court is the superior court of the United States—it is supreme in some important and powerful ways. The Court is supreme within the national judicial branch, the final authority over all lower federal courts (circuit and appeals). The Court is also supreme over state courts on matters of congressional statutes and constitutional law. Even state legislatures must yield to the Court’s decisions on cases relating to constitutional provisions against them (e.g., Art. I, Sec. 10). Finally, the Court is supreme on those matters of original jurisdiction granted to it by the Constitution. But limited supremacy does not imply complete judicial supremacy.

What Trump Should Do

The founders understood that the Judiciary was the weakest branch of the three because it lacked legislative action and executive will. Yet through the evolution of judicial supremacy, we have come to be ruled by an aristocratic, unelected, and unaccountable Supreme Court that can dictate the law of the land under the veil of constitutional interpretive superiority. Thus, since the mid-twentieth-century, the Court has prohibited prayer in public schools, overturned centuries of obscenity and blasphemy laws, made public observance of the Sabbath illegal, allowed pornography to infiltrate every aspect of society under the guise of free speech, authorized seditious and hateful flag burning under the same, legalized abortion leading to the genocide of over 60 million innocent children, changed the definition of marriage to allow homosexual “marriages,” and ruled that the term “sex” in statutory law (Title VII of the Civil Rights Act of 1964) incorporates transgender employees—just to name a few of its egregiously unconstitutional decisions that have irreparably harmed the nation.

President Trump is not unfamiliar with federal court injunctions against his policies. During his first term, Trump’s “Muslim ban” (Executive Order 13796, Protecting the Nation from Foreign Terrorist Entry into the United States) was first blocked by a preliminary injunction issued by Judge Leonie Brinkema of the Eastern District of Virginia (February 13, 2017), and was later upheld by a temporary restraining order issued by Judge Derrick Watson for the U.S. District Court for the District of Hawaii (March 15, 2017). While the matter was eventually resolved by Supreme Court, Trump was left incapacitated to defend America’s borders and her people from potential terrorists. These kinds of lower court injunctions are deeply crippling to a federal government (and often state governments) seeking to rule for the good of the people.

When inferior federal courts, or the Supreme Court, under the guise of judicial supremacy, have overstepped their constitutional bounds, the matter must be appealed to the people. And how do the people act except through electing congressmen to their state and national legislatures and a president to the White House? In the 2024 election, the people, under duress from Washington’s maladministration and a sickly Court (generally assessed since the Warren Court era), appealed to Donald Trump to come to their aid. This Trump has done with his executive order to overturn the illegal and unconstitutional practice of birthright citizenship for children of illegal aliens.

This matter is urgent, and perhaps more important than any other. For the American heritage, her identity, history, people, and principles could be wiped out from the face of the Earth through mass illegal immigration. Since the current injunction stems from a lower district court and not the Supreme Court, Trump should ignore the injunction and continue to enforce his executive order—much like how Lincoln ignored Justice Taney. Only once the issue has reached the highest court of our land and a verdict has been decided will Trump potentially face the choice of openly defying a Supreme Court order. If it came to this, Trump would be on good constitutional grounds, but he must ready himself and his administration for a full-on political civil war. For this, Trump and his second administration have been well-prepared, and thus we might soon witness the end of the Rule of Black Robes and the restoration of constitutional government.


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Ben R. Crenshaw

Ben R. Crenshaw is a Visiting Assistant Professor at the Declaration of Independence Center at the University of Mississippi. He is a Ph.D. candidate in Politics at the Van Andel Graduate School of Statesmanship at Hillsdale College. You can follow him on Twitter at @benrcrenshaw.

5 thoughts on “The End of the Rule of Black Robes

  1. Great analysis. Thank you. I have always thought like Lincoln on this subject: “The Congress, the executive and the court, must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others.” June 26, 1857

    1. Great, glad you enjoyed it! Yes, good quote from Lincoln. Other scholars have pointed out that all federal oaths are made null and void by judicial supremacy. If judicial supremacy is true, then the oath should read something to the effect of upholding the Constitution as interpreted by the Supreme Court, which is really to swear loyalty to SCOTUS–a branch created by the Constitution–and not the Constitution. Which, of course, is absurd.

  2. This is ignorant nonsense. If you don’t like birthright citizenship, then get a Constitutional amendment to change the language of the 14th. You know you can’t, because stripping citizenship from the population is extremely unpopular and you would lose.

    You are such whiny little creeps. You want to impose a brutal racist and misogynist theocracy on the US and you will likely get your wish, and you will destroy everything good and decent about this nation.

    You are not patriots. You do not love this country. You’re twisted monsters with foul-smelling vicious souls who resent the fact that you’re not automatically in charge of everything just by being white, male, and wealthy.

    1. More of the usual hate filled nonsense from Karen, who seems to be trying out for a the role of the worst caricature of progressivism.

  3. The pretty boy/sensitive boy genius runs through Federalist quotes as if he knows the guys. Pretty boy/sensitive boy proves his own argument INVALID here:
    When inferior federal courts, or the Supreme Court, under the guise of judicial supremacy, have overstepped their constitutional bounds, the matter must be appealed to the people. And how do the people act except through electing congressmen to their state and national legislatures and a president to the White House?
    YES, correct. THAT is what the Constitution intends: AFTER elections, the Presidents nominates to SCOTUS and the Senate reviews and confirms! DUH!
    Sensitive lad erects his arguments on discussions in the Federalist about the Constitution and then REJECTS THE ACTUAL CONSTITUTION! That is what we call a poorly hung argument. The Constitution is very well hung. Pretty boy’s argument is not.
    The logical and MORAL shenanigans of pretty boy’s argument is revealed here too:
    he lists SCOTUS decisions he doesn’t like in order to support the NEED for what he proposes in a theory. BUT fails to list the SCOTUS decisions that he no doubt approves, including vacating Roe v. Wade, severely limiting federal regulatory authority, and rescuing Mr Trump from legal jeopardy while also increasing Executive power. Pretty/sensitive boy is clearly here bending his argument to avoid FACTS that challenge the strength of his argument. That generally is called a logically and morally bullsh-t argument.
    Try again and use better hung reasoning.

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