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How to Dethrone the Imperial Judiciary

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~How to Dethrone the Imperial Judiciary~ is a well-researched book by Harvard jurist Edwin Vieira and published by the Vision Forum. The focal point of the book is the illegitimacy of Lawrence v. Texas, 539 U.S. 558 (2003), whereby the federal courts bullied the State of Texas and other sovereign states decrying their prohibition of sodomy as unconstitutional. Public morality statutes of this sort serve a purpose. Somehow, the right to sodomy was hidden in "the penumbras and emanations" of the Ninth Amendment. All the other previous judges just looked over it apparently. Sarcasm! As Justice Scalia, the voice of reason and dissent has exclaimed, "Day by day, case by case, this court is busy designing a Constitution for a country I do not recognize."

So, here is a point to ponder: if the federal judiciary fails to exercise its authority to construe the law properly, then are usurpations somehow vindicated because the judiciary fails to adjudicate justly and strike down usurpations of the law? An unconstitutional statute is not a "law" though it may have the "color of law" when sustained by judicial fiat. Thus, the exercise of a more judicial edict without lawful authority is not binding or obligatory. Justices on the bench in a reflective moment of sobriety have affirmed the primacy of the Constitution itself to court rulings: "[T]he tendency to encrust unwarranted judicial interpretations upon the Constitution and thereafter to consider merely what has been judicially said about the Constitution, rather than to be primarily controlled by a fair conception of the Constitution... But the ultimate touchstone of constitutionality is the Constitution itself and not what [some majority of the Supreme Court] have said about it."

Hence, judicial fiat does not justify the constitutionality of an unlawful statute nor does it confer any constitutional authority for any public official to enforce it.

Encroachment upon the reserved rights of the States as well as the coercion of a State has always been averse to the principles of republican government. Guarding against the potential usurpation of state prerogatives was a perennial concern during the heated constitutional debates. It should be duly noted that many Federalists moved to alleviate that fear of federal usurpation by conciliating themselves to a states' rights reading of the Constitution. Hamilton asserted in Federalist #33: "But it will not follow... that [Legislative Acts]... which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the Land. These will be merely acts of usurpation, and will deserve to be treated as such."

In his erudite book Vieira defends the doctrine of state interposition against federal usurpation. According to the American Jurisprudence encyclopedia: "The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment, and not merely from the date of the decision so branding it; No one is bound to obey an unconstitutional law, and no courts are bound to enforce it."

State interposition is one means whereby federal usurpation can be countered. Consider the classic Black's Law Dictionary definition of interposition:

"interposition, n. The doctrine that a state, in the exercise of its sovereignty, may reject a mandate of the federal government deemed to be unconstitutional or to exceed the powers delegated to the federal government."

"The concept is based on the 10th Amendment of the Constitution of the United States reserving to the states powers not delegated to the United States. Historically, the doctrine emanated from Chisholm v. Georgia, 2 Dallas 419, wherein the state of Georgia, when sued in the Supreme Court by a private citizen of another state, entered a remonstrance and declined to recognize the court's jurisdiction. Amendment 11 validated Georgia's position."

"Implementation of the doctrine may be peaceable, as by resolution, remonstrance or legislation, or may proceed ultimately to nullification with forcible resistance."


Addressing the issue of the Imperial Judiciary is one of the perennial issues of the American political discourse. It must not be neglected. In recent years, a flurry of populist conservative books has taken aim at the Imperial Judiciary while urging Congressional action to circumscribe the federal judiciary's jurisdiction. Many proposals are not far-reaching enough to address the deterioration of federalism. Russell Kirk has observed: "The Congress could much curb and chasten the Supreme Court, should it decide to do so, in two ways: first, by greatly reducing the categories of cases over which the Supreme Court exercises appellate jurisdiction, as is authorized in Article III of the Constitution... Such contraction of appellate jurisdiction, in effect leaving whole classes of law within the jurisdiction of state courts only, or at least outside the sphere of federal courts, has happened before in the history of American law."

An excellent treatment of a complex subject. The main argument is extremely well supported. A fascinating work which should be read and understood by every American who cares about the constitution.

I really would like to give this book more than three stars. It is smart, persuasive, well-researched, and almost always right. It also, unfortunately, contains sentences that go on too long, favors ostentation over clarity, and is boring. Nevertheless, it is an important book. Edwin Vieira convincingly argues against the United States Supreme Court's decision in Lawrence v. Texas. The Lawrence Court illegally employed foreign law to interpret the U.S. Constitution and preposterously purported to strike down all legislation based on traditional morals. Vieira demonstrates the absurdity of "judicial supremacy," the notion that the U.S. Supreme Court is the supreme interpreter of the U.S. Constitution. And then he demonstrates several practical things "We the People" can do to curtail the Supreme Court's power grab. The options include amending the Constitution (not ideal because it implies the Supreme Court got the pre-amendment interpretation right), pardons by the President, presidential refusal to enforce an unconstitutional decision, limitation of the court's jurisdiction, and removal of judges for lack of "good behaviour," among other possibilities. Many of the proposed actions are not currently politically possible. However, We the People delegated to the judicial branch the judicial power. We the People have the right and responsibility to ensure that power is not abused. How to Dethrone the Imperial Judiciary presents an important warning and challenge and ultimate plan of remediation. It is worth reading despite its faults.

The author, Vieira, neither discusses nor even mentions judicial immunity. This is a serious flaw. His theory of dethroning an imperial judiciary provides no oversight of the behavior of individual judges. That judges should not individually be responsible or accountable for their behavior as are individuals in our society is unforgivable. The judge-made doctrines -- in our common law -- state that a judge must be independent even if he or she is malicious and corrupt. That is, of course, euphemistically stupid reasoning. It allows a so-called independent judge to be corrupt and malicious. In such a circumstance, can the People truly expect justice? The answer is a resounding No.

Without the author's courage to address this egregious judge-made doctrine, the book is almost valueless.

As an aside, it does not explicitly define the word "privileges" as it pertains to the People.