19
ultimate sovereign. They rejected Jefferson, Madison, and the near-uniform opinion of
our nation’s founders. They rejected Lincoln (or rather embraced the consequence he
feared, that should the Supreme Court itself have the final, unchecked authority to fix by
interpretation the provisions of the Constitution, “the people will have ceased to be their
own rulers, having, to that extent, practically resigned their government, into the hands of
that eminent tribunal”). Indeed, the Justices demonstrated their utter ignorance of this
fundamental maxim of republican government score by erroneously noting earlier in the
opinion that “[t]he root of American governmental power is revealed most clearly in the
instance of the power conferred by the Constitution upon the Judiciary of the United
States and specifically upon this Court.”
47
When one considers the additional point that these Justices reached these
extraordinary conclusions—issued their incredible edict might be more apt—despite their
express acknowledgement that Roe might well have been wrongly decided, any pretense
that they were simply trying to enforce the commands of the Constitution against
obstinate elected officials and a tyrannical majority of the citizenry melts away, and we
are left with the raw power of absolute judicial supremacy—“a despotic branch,” to
borrow again Jefferson’s phrase.
What is more, what would be wrong with the application of a little bilateral checks
and balances between the court and the other branches, in much the same way described
above that the President and Congress check each other? Following a constitutional
47
Id. at 865 (emphasis added).
Convention