US Constitution: Amendment Proposal | Eastern North Carolina Now

    And from that point on, the federal government has grown by leaps and bounds, mostly at the hands of a few cloaked individuals. The turn of the century (1900) saw the rise of the omnipotent and omniscient Supreme Court. For that, we have Chief Justice John Marshall to thank, with his decision in the landmark case of Marbury v. Madison, as mentioned above. Thomas Jefferson was president at the time and wrote to Abagail Adams to comment: "The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

    Dave Brenner discusses the Marbury decision excellently in his book Compact of the Republic. Of course, the "compact" is the Constitution itself. In the book, Brenner writes: "John Marshall's Supreme Court became the very representation of what the anti-Federalists feared the most - a judiciary that overstepped its own authority and ruled on state law. Through sweeping court decisions, the Marshall Court carved out the foundations for how the Supreme Court would be perceived more than 200 years later: as a powerful, decisive oligarchy that overturned state law and bound the states to its opinions."

    The book continues:



    As a result, Marbury brought suit, seeking as his relief a writ of mandamus, an order by the court requiring Jefferson to deliver his commission and thereby allowing him to take his position.

    Writing the decision, Chief Justice Marshall held that part of the Judiciary Act - the part that gave rise to Marbury's commission - was unconstitutional, and therefore he was not entitled to the relief he sought. It would be the first time the US Supreme Court declared an act of Congress to be unconstitutional. The analysis should have ended right there. But Marshall went further. He wrote: "It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each." The decision concluded by saying that "a law repugnant to the Constitution is void, and courts, as well as other departments, are bound by that instrument." It was the first time a federal court proclaimed judicial supremacy. It was the first time a federal court proclaimed that federal courts have the final say on what the Constitution means. In other words, this decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and once it has rendered its opinion, all the other branches, the States and the people are to bound by that decision. As the Supreme Court likes to remind everyone: "This principle has ever since been respected by this Court and the County as a permanent and indispensable feature of our constitutional system." (Cooper v. Aaron, 1958)

    Marbury's declaration of judicial supremacy ignores the opinion in Vanhorne's Lessee v. Dorance (1795). [See above].

    It is interesting to note that the Supreme Court would not declare another act of Congress unconstitutional until 1957, when it struck down the Missouri Compromise in Dred Scott v. Sanford]. From that point until June of this year, 2016, the high court has only declared approximately 174 acts of the US Congress (whether in whole or in part) to be unconstitutional, which would amount to about 1 statute per year].

    Up until this case, most Founding Fathers and many legal scholars understood that the role of the judiciary was to "render" or "offer" an opinion, to be considered by the other branches. Indeed, when ratifying the Constitution, the understanding was that the Supreme Court would not have a monopoly over its meaning and interpretation. Alexander Hamilton assured the state delegations in Federalist No. 78: "Whoever attentively considers the different departments of power must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution because it will be least in a capacity to annoy or injure them.... "The Judicial Branch may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

    In Federalist No. 49, Hamilton wrote: "As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance?"

    Again, in Vanhorne's Lessee v. Dorance, Justice Patterson emphasized: "It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but a co-ordinate, branch of the government."

    Without authoritative language in Article III of the Constitution, it was believed that all three branches of the federal government would interpret the Constitution, and check usurpations of power by the other branches. Additionally, some believed that state courts would have the right to determine constitutionality as well. Article III, Section 1 reads: "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 behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." Section 2 lists the types of cases that the courts can hear, including the Supreme Court, and whether those cases have original or appellate jurisdiction).

    Indeed, the Constitution does not speak to judicial supremacy, and no one claimed that the federal courts would have a monopoly on determining the constitutionality of all government action.

    What the Constitution DOES speak to is Separation of Powers and Checks and Balances. The officials of two branches are elected by the People. If they are unpopular, the People can use their power at the ballot box. We can see where the Legislative and the Executive can check each other (although clearly, the Legislative branch was vested with the most power; Congress is the People's house). But nothing makes sense about having a third branch, NOT elected by the people but appointed solely on political and social ideology for a term that doesn't expire, that is supreme to the others. What makes sense is that a branch that is not accountable to the people was intended to be exactly what Alexander Hamilton said it would be -- the least dangerous branch.

    James Madison, the author himself of the Constitution, asked: "I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments." Furthermore, he wrote: "Nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the Legislative as by the judicial authority." Thomas Jefferson was of the same opinion. He wrote: "Each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action."

    These great men recognized the threat to government balance should the view be otherwise. "As the courts are generally the last in making the decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper," wrote Madison. Jefferson wrote: "The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

    In 1820, after witnessing the ready willingness of men once infatuated with the simple language of Constitution and the limited nature of the government, to alter their positions once they sat in a position of power on the Supreme Court, Thomas Jefferson wrote: "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. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps."

    More than any other branch of government, the US Supreme Court in particular has undermined and destroyed America's onetime democratic republic. It has chiseled away and eroded the protections promised and pledged to each American by the Declaration of Independence and the boundaries of government established by the US Constitution adopted by the states in their ratification conventions during the years 1787- 1791. The justices to the Supreme Court are appointed by the President (approved by the Senate, and are rarely denied, except when they are "Borked"), and enjoy permanent tenure with a fixed income for life. They are selected according to ideology only, in the supreme attempt by a president to determine "policy" from the bench. That is, they want the Court to interpret the Constitution in the most liberal manner possible (according to the "Living Document" approach, which means that the Constitution means whatever they decide it means) or according to the letter and spirit under which it was adopted. It matters not to those who wish a very liberal reading of the Constitution that there is a legitimate way to alter its meaning and interpretation - and that is according to Article V - the "amendment process."

    Speaking about the "human" nature of justices which can cloud their decisions, one often hears someone comment that President Obama "must have something very damaging on Chief Justice John Roberts" to explain why he would have written two very constitutionally tortuous decisions on the healthcare bill in order to save it for the federal government. Judge Andrew Napolitano opined publically that Roberts used tyrannical power to find ways to save Obamacare. He said the Court "violated every grant of authority and ignored every historical and reliable treatise on the role and limitations of the Court as a branch of government, including those written by the very men who wrote and ratified the Constitution." The justices that look to the actual (intended) meaning and spirit of the Constitution (the "strict-constructionists) wrote dissenting opinions and essentially agree with Judge Napolitano. Justice Scalia offered the most scathing dissent and in fact ended by simply saying "I dissent" rather than the usual "I respectfully dissent." Scalia accused the majority of disregarding the plain meaning of words and re-defining terms and called the decision "pure applesauce." He accused his colleagues of doing "somersaults of statutory interpretation" and wrote: "Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved." When he wrote "We should start calling this law SCOTUScare," he was sarcastically hinting that the statute owes its existence more to the Supreme Court than to Congress.

    A few weeks ago (June 26, 2015), in Obergefell v. Hodges, the Supreme Court held that the right to marry is a fundamental right inherent in the liberty of the person, and therefore protected under the Due Process and Equal Protection Clauses of the 14th Amendment, and accordingly couples of the same-sex may not be deprived of that right and that liberty. Journalist Frank Turek explained why the decision rests on a fatal flaw. Back in March, he penned an article (in anticipation of the case) and wrote: "The Supreme Court is about to decide if the 14th amendment to the United States Constitution requires the states to redefine marriage to include same sex relationships. There are several reasons why the answer is no. The most decisive of these reasons is the fact that when the 14th amendment was passed in 1868, homosexual behavior was a felony in every state in the union ... If the people of the United States have 'evolved' on the issue, then the Constitution provides them with a very clear and fair way for the document to intelligently 'evolve'.... They need to convince a supermajority of federal and state legislatures to amend the Constitution. That's the very reason our Constitution has an amendment process! If we fail to use the amendment process and permit judges to substitute their own definitions and judgments for what the people actually meant when they passed the law in the first place, then we no longer govern ourselves. Why vote or use the political process if unelected justices strike down our laws and impose their own as they go? ... It's a pretext that allows judges to invent rights and impose any moral (or immoral) position they want against the will of the people." Liberty interests are those enshrined in the Bill of Rights. The Bill of Rights were included in the Constitution to make sure that the federal government (only) would never violate them. The 'incorporation doctrine' is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the 14th amendment's Due Process clause. But the Supreme Court, even up until the 1960s, has held that not all the interests outlined in the Bill of Rights are to be incorporated. The only sections of the Bill of Rights that federal courts should apply against state action, according to the Court, are those that have been "historically fundamental to our nation's scheme of ordered liberty." When a federal court reviews a case claiming an asserted right is one protected under "substantive due process" (due process involving "liberty interests"), the court usually looks first to see if there is a fundamental right by examining "if the right can be found deeply rooted in American history and traditions." Because the incorporation test includes the clarifiers "historically" or "deeply rooted in American history and traditions," in making its determination, the Court must look back to the era in our country's history beginning from our founding up until the adoption of the 14th amendment - or it SHOULD. Just as not all proposed "new" constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states. Although the Supreme Court has stated in prior decisions (see Loving v. Virginia) that marriage is a fundamental right, the historical perspective is that marriage is between heterosexual couples. The idea of a "fundamental right to marry" invites controversy. The notion of a "fundamental right" implies firm privileges which the state cannot deny, define, or disrespect unless it finds that the challenged law was passed to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest (ie, the "strict scrutiny" test). But marriage rules (who can marry, health records required, what formalities are required for marriage, the legal ramifications of marriage, etc) in the United States have always been subject to almost complete state control (pursuant to its traditional police powers). As the dissent points out: "Removing racial barriers to marriage (Loving v. Virginia) did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of "marriage" discussed in every one of these cases 'presumed a relationship involving

    opposite-sex partners.' In short, the "right to marry" cases stand for the important but limited proposition that particular restrictions on access to marriage, as traditionally defined, violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. What petitioners seek is not the protection of a deeply-rooted right but the recognition of a very new right." Re-definition of marriage is something society decides as a whole, through the legislature. It is not the role of a court. "This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise 'neither force nor will but merely judgment.'" Another dissenting opinion states: "The substance of today's decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences-and the public approval that conferring the name of marriage evidences-can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court."

    On June 26, the day the ruling was released, Texas Governor Greg Abbott issued a scathing criticism: "The Supreme Court has abandoned its role as an impartial judicial arbiter and has become an unelected nine-member legislature. Five Justices on the Supreme Court have imposed on the entire country their personal views on an issue that the Constitution and the Court's previous decisions reserve to the people of the States."

    Thomas Paine wrote: "A constitution defines and limits the powers of the government it creates. It therefore follows, as a natural and also a logical result, that the governmental exercise of any power not authorized by the constitution is an assumed power, and therefore illegal." The Supreme Court, while improperly assuming the power to decide what powers the states have and what they don't have and thereby shuffling power from the states to the federal government, has ushered in an era of a technically illegal government.

    With respect to the federal judiciary, Thomas Jefferson wrote: "This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt."

    Furthermore, he wrote: "The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." (in a letter to Spencer Roane, 1819)

    Similarly, he wrote: "The judiciary of the United States is a subtle core of sappers and miners constantly working underground to undermine the foundations of our confederated fabric. They are construing our constitution from a coordination of a general and special government to a general and supreme one alone. The opinions are often delivered by a majority of one, by a crafty Chief Judge who sophisticates the law to his mind by the turn of his own reasoning." (in a letter to Thomas Ritchie, December 1820)

    And again, he commented: "The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated." (in a letter to Charles Hammond, August 18, 1821)

    Joseph Story, in his Commentaries on the Constitution (1833), wrote: "The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defense of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day."

    US Rep. Joseph Nicholson (1770-1817) warned: "By what authority are the judges to be raised above the law and above the Constitution? Where is the charter which places the sovereignty of this country in their hands? Give them the powers and the independence now contended for and they will require nothing more, for your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country, differing essentially with us upon the great principles of government; and after being clothed with this arbitrary power, they are beyond the control of the nation, as they are not to be affected by any laws which the people by their representatives can pass. If all this be true - if this doctrine be established in the extent which is now contended for - the Constitution is not worth the time we are now spending on it. It is, as its enemies have called it, mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws; they may laugh the legislature to scorn and set the nation at defiance."

    If the federal government acts outside the scope of its delegated and carefully enumerated powers, and has sanction by the Supreme Court, then it's no better than an armed mob. While a mob has the power of organized civil unrest and perhaps violence to coerce and strip others of rights and liberty, the government assumes a power of law to coerce and deprive.

    By design, the separation of functions into separate branches (Separation of powers) and the system of checks and balances that our Founding Fathers provided has always been intended to act as a safeguard against the federal government's potential tyranny and oppression. The history of the Supreme Court shows how, almost immediately, it began to enlarge certain clauses in the Constitution - the Necessary and Proper Clause, the Commerce Clause, and the General Welfare Clause. Patrick Henry called these "sweeping clauses" because he felt they might ultimately be used by the federal government to sweep authority away from the states. And he was right. Not only has the Court interpreted the clauses as positive grants of power to Congress but it has also interpreted them as limitations on the States to regulate internally, for their own interests and for their citizens. The Commerce Clause, for example, has been interpreted broadly to give the government extreme powers to regulate commerce, both interstate and intrastate. It has also been interpreted to prevent states from regulating commerce within their borders and also to prevent individual farmers, for example, from growing too much wheat on his property for fear that he may consume that which he grows and thus not engage in commerce (thus affecting commerce!) The General Welfare clause has become an independent grant of power to Congress rather than as a statement of purpose qualifying the power to tax.