The Personal Website of Mark W. Dawson


Containing His Articles, Observations, Thoughts, Meanderings,
and some would say Wisdom (and some would say not).

Judicial Interpretation Should Not Be Judicial Rule

With the many judicial rulings on President Trump’s illegal immigrant deportation efforts, it now appears that judges are making the law up. If the judge cannot cite the stature and the sub-clauses of the stature that specifically state what they are ruling upon, then they are making it up. Many excuse their efforts under the label of “Judicial Interpretation” or “Judicial Discretion”, but in reality, it is judicial rule and judicial lawmaking.

The issue of the Judiciary's role in our Democratic republic Constitutional government was hotly debated during the Constitutional Convention and during the pre-Constitutional approval process. Those who supported the Constitution (i.e., The Federalists) thought that judges should be given latitude to help preserve our Liberties and Freedoms and that judges would act virtuously in doing so. Those who opposed the Constitution (i.e., The Anti-Federalists) were concerned that as judges were appointed rather than elected, they could act arbitrarily and unconstrained and be a danger to our Liberties and Freedoms and that you could not depend on the virtue of judges to guide their actions in hotly contested issues.

In a series of essays by the Federalist Alexander Hamilton (published under the pseudonym Publius in The Federalist Papers), written during the pre-Constitutional approval process, and published as Federalist No. 78–83, he defends the Judiciary:

In a series of essays by an unknown author (published under the pseudonym Brutus in The Anti-Federalist Papers), written during the pre-Constitutional approval process, and published as The Anti-Federalist No. 78–83, the author examines the problems of the Judiciary within the proposed Constitution:

A YouTube video, “Brutus v. Publius: The Fight Over the Judiciary”, examines both sides of this issue, while the following articles examine this issue from a modern perspective:

In my own article, "Judges, Not Lords", and in my collected Chirps on "Judicial Restraint", I have also examined this issue. In discussing this issue, all should remember the wisdom of one of our Founding Fathers:

“If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.”
 - James Madison

Regarding the issue of Judicial Restraint in the current illegal immigrant deportation issue, this judicial control (i.e., restraint) itself has disappeared from activist judges. Rather than rule on the basis of the law, they are interpreting the law to suit their own predilections. Thus, we have a situation, much like Humpty Dumpty in Lewis Carroll's ‘Through the Looking Glass’:

“‘When I use a word’, Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master— that's all.’’’

Consequently, they are asserting that they are the masters, and all must abide by their rulings. In this attitude, they fulfill many of Brutus's fears about the judiciary. We would all do well to remember in our Democratic republic, “We the People” are the masters, and the government must be subservient to the will of the people, with the will of the people only constrained by our Natural, Constitutional, and Civil Rights. The Judiciary should also keep in mind that they are a co-equal branch of government by the Separation of Powers doctrine of the Constitution, and the Balance of Powers between the Legislative, Executive, and Judicial branches of government is essential to preserving our Liberties and Freedoms. If a judge can make up laws in their rulings, then they are not only violating the Constitution, but they are assaulting our American Ideals and Ideas.

If a judge can make up a law through their rulings, then the people and the Legislative and Executive Branches of government should ignore the ruling as Unconstitutional. The laborious process of appealing an Unconstitutional ruling to the Supreme Court is unacceptable, as it ties up the Legislative and Executive branches during this long process, and it thwarts the democratic will of the electorate for any change for which they have voted. It also places the ultimate decider on constitutional issues into the hands of the Supreme Court, which is not specified in the Constitution but is a power shared by all branches of government. It would also mean that the Judiciary would be judging itself, which violates the principle that no man should be the judge, jury, and executor of himself.

Through several Supreme Court decisions (starting from Marbury v. Madison in 1803), the Supreme Court has asserted that they have the power to strike down laws and statutes that violate the Constitution of the United States. They have also asserted that they can restrict Executive and Legislative powers and actions that they determine to be unconstitutional. Such assertions are an inferred interpretation of the Constitution, as there is no direct power in the Constitution that allocates this power to the Judicial Branch. Thus, they have accrued unto themselves a power not directly delegated to them in the Constitution. Such accrued power is dangerous to the Balance of Powers in the Constitution if it is not applied cautiously and prudently.

In the case of the recent judicial rulings on illegal immigrant deportations, they are not being cautious and prudent, but they are attempting to assert their will over the Executive Branch and thwart the will of the electorate, who in large part voted for President Trump because of his stance on illegal immigrant deportations. The ruse of Due Process is, but a chimera to disguise their attempt to assert their will on the American electorate, and they are well aware that if the same Due Process afforded American Citizens and legal immigrants, if applied to illegal immigrants, will take many decades to adjudicate each illegal immigration case, tie up the courts at much expense, and allow illegal immigrants to remain in America until their cases are decided.

It is my personal opinion that if an immigration or appellate immigration judge rules that someone is in America illegally, then the President has the authority to deport them to their country of origin at his will. If an immigration or appellate immigration judge rules that someone is in America illegally and a member of a criminal organization or terrorist group, then the President must immediately deport them to a country of his choice. Also, if an illegal immigrant has been found guilty of a crime, then after they have served their sentence, the President must immediately deport them to their country of origin. In all of these cases, the ruling of an immigration or appellate immigration judge is all the Due Process that an illegal immigrant is entitled to before they are deported.

As I have Chirped on "03/25/25 Executive Order Restraining Judicial Powers", it is time for President Trump to confront these judges and assert his Constitutional powers to deal with illegal immigrants. It is also time for Chief Justice John Roberts and the other Justices to stop being indecisive and rule for Presidential powers and authorities to deal with illegal immigrants, and reign in these rogue judges, as I have Chirped on, "03/26/25 The Agony of Indecisiveness".