Thursday, January 17, 2008

Our Dysfunctional Republic Part 7

My last two segments covered the Legislative and Executive Branches of our government. While I could have expanded them to cover much more material, I chose not to in the hopes that you would begin to get an idea of how far our law making and enforcing branches of government have strayed from their Constitutional obligations. Thomas Jefferson once said that, "Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny." So if we are to believe Jefferson, it was to be expected that those in power would eventually succumb to what Lord Acton said in 1887, "Power tends to corrupt, and absolute power corrupts absolutely."

This segment will cover the Judicial branch or our government, which is established by Article 3 of the Constitution. As I just stated, it was to be expected that those in power would eventually try to expand their powers beyond those granted them by the Constitution. However the Judicial branch of the government was supposed to be the arbitrators of law as it pertains to the Constitution. In this, they have failed miserably.

Article 3 is short and to the point, so I will include the entire article for you to read with emphasis added to the points I find most important.

“Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.”

I am sure that most people are aware that the Supreme Court has made rulings as to the Constitutional legality of legislation passed, the most notable of these cases probably being Roe v. Wade. This is known as judicial review, the power of a court to review the actions of public sector bodies as to whether they are constitutionally binding. In some cases they can also review the legality of the law itself.

Judicial review is not expressly defined in Article 3 of the Constitution. In 1803, the Supreme Court ruled in Marbury v. Madison that a portion of a federal statute was null and void because it conflicted with the Constitution. Chief Justice John Marshall concluded that the Constitution implicitly grants the Supreme Court the power to invalidate any law that violates the Constitution.

This decision was a double edged sword. On one hand we have the court ruling on powers it grants to itself. That is kind of like allowing the fox to guard the hen house if you ask me. However on the other hand it does grant the court the power to declare a law unconstitutional.

In 1804, in Little v. Barreme, also known as the Flying Fish Case, the court ruled that an action of the executive branch was unconstitutional. In 1810 the court ruled in Fletcher v. Peck that its judicial authority extended to state laws.

With these three landmark cases the Supreme Court asserted its judicial review powers over all laws and secured for itself the sole role of interpreter and arbiter of the Constitution. Thomas Jefferson warned of the dangers of this very thing happening when he said, “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” For those of you who are unfamiliar with the term oligarchy, it means a government in which the power is in the hands of a few.

In discussing the powers granted to the Supreme Courts ability to decide whether a law is constitutional or not, I think it best for you to read from the Federalist Papers, #78, written by Alexander Hamilton. Again, I will emphasize the portions I feel are important.

"Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
It is clear from this reading that any act by our elected representatives which violate the Constitution are null and void. It is also clear from what Hamilton says that the legislative body is not to be the judge of their own powers. It is the duty of the courts to ascertain the meaning of laws. If there be a disagreement between the Constitution and the statute, then the Constitution should take preference over the statute.

If any of you have attended any type of legal proceedings you will see that there is a common practice of justifying the legality or illegality of certain aspects of law. This is known as precedence. If a previous ruling by a higher court rules in favor of one position, then that position has set a precedent for the lower courts to follow.

I find the concept of precedence particularly intriguing when it comes to interpreting whether or not laws violate its intent. Since the Constitution is the supreme law of the land, Article 6, what sets the precedent for determining the intent of the Constitution, particularly in regards to arguments over the Bill of Rights?

James Madison once said, “Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.” Therefore the only legitimate precedent for the Supreme Court to use in understanding these issues must be the thoughts of the men who were involved in the drafting of the Constitution, our founding fathers.

Therefore, I would like to go over two issues that the Supreme Court has refused to make a clear ruling upon, the intent of the First Amendment in regards to the separation of Church and State, and the Second Amendment in regards to personal firearms possession. Remember from Part 3 of this series I mentioned that Alexander Hamilton warned that a bill of rights was a dangerous thing, "I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?" Therefore it is interesting, and a bit disconcerting, that the Supreme Court has not had the courage to make a firm ruling on these two issues.

The 1rst Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

As already shown, there was no legal precedent set for interpreting the meaning of the Constitution or the Bill of Rights. The only way to show intent is by reading what the founders had to say about a particular issue. Therefore, on the subject of religion I would like to provide you with the following quotes from a few of our founding fathers concerning that subject.

"Of all the dispositions and habits, which lead to political prosperity, Religion and Morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens."
George Washington

"Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. It is impossible to rightly govern the world without God and the Bible."
George Washington

"Statesmen, my dear Sir, may plan and speculate for liberty, but it is religion and morality alone, which can establish the principles upon which freedom can securely stand. The only foundation of a free Constitution is pure virtue, and if this cannot be inspired into our People in a greater Measure than they have it now, they may change their rulers and the forms of government, but they will not obtain a lasting liberty."
John Adams

"We have no government armed in power capable of contending with human passions unbridled by morality and religion. Our Constitution was made only for a religious and moral people. It is wholly inadequate for the government of any other."
John Adams

"God who gave us life gave us liberty. And can the liberties of a nation be thought secure if we have removed their only firm basis: a conviction in the minds of men that these liberties are the gift of God? That they are not to be violated but with His wrath? Indeed, I tremble for my country when I reflect that God is just; that His justice cannot sleep forever."
Thomas Jefferson

"One of the amendments to the Constitution... expressly declares that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,' thereby guarding in the same sentence and under the same words, the freedom of religion, of speech, and of the press; insomuch that whatever violates either throws down the sanctuary which covers the others."
Thomas Jefferson

"The rights [to religious freedom] are of the natural rights of mankind, and... if any act shall be... passed to repeal [an act granting those rights] or to narrow its operation, such act will be an infringement of natural right."
Thomas Jefferson

And finally, this last quote by Jefferson. I feel this particular quote should be read by all the Michael Newdows of this country who feel that the mere mention of God or Jesus is offensive to them, "The legitimate powers of government extend to such acts as are only injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg."

After reading these quotes it is clear that our founders had a firm belief that our country was founded upon, and could not survive without religious and moral principles. Yet our Supreme Court has not upheld that viewpoint, making the open practice of the Christian faith something that can only be done in a church or the privacy of your home. Yet just the other day I read an article about how Children at an Illinois school are having to do without certain holiday celebrations as not to offend the Muslim students. Yet the Supreme Court has refused to rule on whether the indoctrination of children into Islam is a violation of the first amendment. The entire article can be found at,

Why is it that Christianity is banned, yet the open teaching of Muslim beliefs is acceptable? The Supreme Court needs to consider the history of this country and make a ruling once and for all to settle this issue.

Next I would like to cover the thoughts of the founding fathers concerning the issue of firearms, and the personal possession of them. The 2nd Amendment states, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Again, some quotes by the founders of this nation,
“Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence. To secure peace, securely and happiness, the rifle and the pistol are equally indispensable. The very atmosphere of firearms everywhere restrains evil interference - they deserve a place of honor with all that is good.”
George Washington

“A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.”
George Washington

“The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.”
Thomas Jefferson

“No free man shall ever be de-barred the use of arms. The strongest reason for the people to retain their right to keep and bear arms is as a last resort to protect themselves against tyranny in government."
Thomas Jefferson

And finally, this quote from Samuel Adams is about as close to a legal precedent as anything I have provided so far, “The Constitution shall never be prevent the people of the United States who are peaceable citizens from keeping their own arms."

It is clear from the words of our founding fathers, where they stood on these issues, that are clearly defined, and protected by the Bill of Rights. Yet our Supreme Court has not shown the integrity, or spinal fortitude to make a ruling that conforms to what Alexander Hamilton said in Federalist Paper #78, “It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”

Our Supreme Court, in many cases the inferior courts, no longer deliver rulings based upon the validity of law according to the Constitution. Instead they choose to rule based upon precedents set by lower courts and the court of political correctness. The will of the people is being ignored. When there is no justice for the people, we have lost all recourse for any redress of grievances against our government or the laws that they enact. be continued

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