Heritage of the Founding Fathers
Heritage of the Founding Fathers

An Oligarchy Branch
By: Josh Pittman

You seem…to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy…1
Thomas Jefferson

The three branches of government are the
Executive, Legislative, and Judicial.  While each are
individual branches, they are somewhat accountable to
each other.  The branches’ powers are checked by one
another.  At least that’s how it’s supposed to work. 

In our government, one branch does not have all the
power – it is distributed between all three branches.  This
prevents one branch from ruling the country. 

In a letter to William Jarvis, Jefferson wrote that
judges’, “power [is] the more dangerous, as they are in
office for life and not responsible, as the other
functionaries are, to the elective control.”1

Today, the judicial branch is fast approaching an oligarchy state.  In other words, the judicial branch is using too much of its power and is not being checked by the other branches.  This can be seen in several of the courts’ decisions and rulings in the last 70 years.

Judges have interpreted the law in some cases incorrectly.  Many of these cases deal with the Establishment Clause and the phrase “separation of church and state.”  In the case of “separation of church and state,” judges have taken the phrase out of context and used it so many times it has come to be thought of as a law.

The phrase actually came from a letter Thomas Jefferson wrote to the Danbury Baptist Association.  This letter was in response to one he had received from them.  In his letter, Jefferson wrote, “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature would ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”2

The letter basically meant that the government could not interfere with a person’s own religion because the right of a person to choose which religion and the right to exercise that religion was guaranteed in the First Amendment.  Because of this, there was, in Jefferson’s words, “a wall of separation between Church and State.”  Courts have incorrectly used this phrase to mean that there is supposed to be a wall between religion and government or in other words, religion is not supposed to interfere with the state.

The Supreme Court has unfortunately used this phrase in so many cases that today it is mistakenly thought of as being in the Constitution or the First Amendment.

The Establishment Clause is part of the First
Amendment which states, “Congress shall make no law
respecting an establishment of religion.”  This phrase
originally meant that the government was prevented from
establishing a national religion such as there was in
Great Britain.  The Supreme Court has incorrectly used
this phrase to mean God is separate from government
including government institutions such as public schools,
similar to what has happened to the phrase “separation
of church and state.”

Courts used the Establishment Clause in their ruling in Engel vs. Vitale.  The court in this case ruled that “…state officials may not compose an official state prayer and require that it be recited in the public schools of the State at the beginning of each school day…”3  This is not the only case though; there have been many more.

There can be major consequences when a court wrongly redefines the law or when a judge steps out of his boundaries.

Judges are to settle a case using the law; they decide whether something is against the law or not.  Judges are not to decide a case using their own opinion on the matter or their opinion on what the law means.  They are to rule using the law.  When judges rule by their own opinions, the law can mean, in many cases, whatever the judges want it to mean.  Jefferson wrote that the, “Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”1

With power that can be used and abused if not properly checked, the judicial branch may be considered sometimes an oligarchy branch.


1.  Federer, William.  America’s God and Country Encyclopedia of Quotations.  AmeriSearch.  2000

2.  Thomas Jefferson, The Writings of Thomas Jefferson, Albert E. Bergh, ed. (Washington, D. C.: The Thomas Jefferson Memorial Association of the United States, 1904), Vol. XVI, pp. 281-282.
Also:  Resources.  “Letters Between the Danbury Baptists and Thomas Jefferson.”  2003.  On-line.  Internet.  8 March, 2007.  Available: http://www.wallbuilders.com/resources/search/detail.php?ResourceID=16

3.  http://supreme.justia.com/us/370/421/case.html, Engel v. Vitale, 370 U.S. 421 (1962)