Author’s Note
This essay grew out of a slow and unsettling realization. Nothing here depends on secret history, radical theory, or revisionist motives. Every claim rests on constitutional text, early practice, and cases every American lawyer knows well. What surprised me was not what I found—but how long it took me to see it.
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I can’t believe that twenty-five years after graduating from law school I am only now confronting a fact that should have been obvious from the beginning: the Constitution of the United States does not define the Judiciary as a co-equal branch of government.
That phrase—co-equal branches—appears nowhere in the Constitution. Yet it is so deeply embedded in our civic vocabulary that it feels constitutional in its own right. I repeated it. I taught it. I assumed it. And for decades, I never paused to ask what the Constitution actually does, as opposed to what we say about it.
The Constitution identifies three powers: legislative, executive, and judicial. But it does not define three governing powers. Only two of those powers can act on their own initiative. The third cannot.
See U.S. Const. arts. I–III.
That difference turns out to matter far more than we were ever taught.
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Governance and Reaction Are Not the Same Thing
Governance consists of direction and execution—deciding what shall be done and doing it. That is why every functioning system of government depends on legislative and executive power. These are initiative powers.
The judicial power is not.
Article III authorizes courts to decide “Cases” and “Controversies.” U.S. Const. art. III, § 2. Without a dispute, without a party invoking jurisdiction, the judicial power lies dormant. The Supreme Court has repeatedly acknowledged this limitation, describing itself as lacking authority to issue advisory opinions or to act absent a justiciable case.
See Muskrat v. United States, 219 U.S. 346, 356–57 (1911); Flast v. Cohen, 392 U.S. 83, 94–95 (1968).
Courts do not move first. They never have.
This is not a criticism of the Judiciary. It is a recognition of its design. Judicial power is corrective, not constitutive. It exists because something has gone wrong.
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How We Learned to Manufacture Cases
Once judicial power is treated as a normal instrument of governance, constitutional responsibility begins to migrate.
Actors learn that they can delay compliance, provoke confrontation, and avoid accountability—because litigation will absorb the cost.
Sometimes this happens unintentionally.
In Marbury v. Madison, President Jefferson’s decision to withhold duly signed commissions served no governing purpose. It did not advance policy or protect the public. It created a controversy where none was necessary. Chief Justice Marshall’s opinion, properly read, emphasizes that acts repugnant to the Constitution are void—not that the Court is supreme over the other branches.
See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
Sometimes the manufacture is deliberate.
When Donald Trump says, “leave it to the lawyers,” he is not deferring to law. He is displacing constitutional responsibility. He is betting—correctly—that courts will be slow, divided, and procedurally constrained, and that time will do what fidelity did not.
That strategy only works if courts are assumed to be responsible for governing failure.
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What the Constitution Actually Assumes
The Constitution assumes fidelity before litigation.
Every federal officer swears an oath to “support this Constitution.” U.S. Const. art. VI, cl. 3. The oath does not say when called upon. It does not say unless challenged. It does not say until a court rules.
Early practice reflected this understanding. In Hayburn’s Case, federal judges refused to perform duties assigned by statute because those duties were inconsistent with the Constitution—without waiting for a lawsuit.
See Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792).
Similarly, Chief Justice John Jay declined President Washington’s request for advisory opinions, explaining that such a role would be inconsistent with the separation of powers.
See Letter from John Jay and Associate Justices to George Washington (Apr. 8, 1793).
Courts were not designed to rescue the system from neglect. They were designed to operate at the margins of a system that was already functioning.
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The Cost of Getting This Wrong
When courts are treated as co-equal governors, constitutional violations become provisional. Delay becomes strategy. Bad faith becomes tolerable. Responsibility dissolves into process.
The result is a system that appears busy but is constitutionally inert—forever waiting for the next case, the next ruling, the next excuse.
As Justice Jackson warned in Youngstown, constitutional structure depends not only on judicial enforcement, but on the self-restraint of the political branches themselves.
See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 (1952) (Jackson, J., concurring).
A constitutional system that depends on courts to function has already stopped functioning constitutionally.
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The Uncomfortable Conclusion
The Judiciary is independent. It is indispensable. But it does not govern.
It corrects.
And when correction becomes routine, the real failure is not judicial overreach. It is everyone else’s abdication.
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