Posted on 09/25/2010 5:55:09 PM PDT by Jacquerie
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.
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. Their maxim is "boni judicis est ampliare jurisdictionem, '' and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.
The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments coequal and co-sovereign within themselves. If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in congress, the judges cannot issue their mandamus to them; if the President fails to supply the place of a judge, to appoint other civil or military officers, to issue requisite commissions, the judges cannot force him. They can issue their mandamus or distringas to no executive or legislative officer to enforce the fulfilment of their official duties, any more than the President or legislature may issue orders to the judges or their officers.
Betrayed by English example, and unaware, as it should seem, of the control of our Constitution in this particular, they have at times overstepped their limit by undertaking to command executive officers in the discharge of their executive duties; but the Constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs. The judges certainly have more frequent occasion to act on constitutional questions, because the laws of meum and tuum and of criminal action, forming the great mass of the system of law, constitute their particular department.
When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves ; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power. Pardon me, Sir, for this difference of opinion. My personal interest in such questions is entirely extinct, but not my wishes for the longest possible continuance of our government on its pure principles; if the three powers maintain their mutual independence on each other it may last long, but not so if either can assume the authorities of the other. I ask your candid re-consideration of this subject, and am sufficiently sure you will form a candid conclusion.
Accept the assurance of my great respect.
(Ltr to William Charles Jarvis, 28 Sep 1820)
And let’s not forget about the 57 State Supreme Courts either.
FYI the Confederate constitution permitted the legislatures of any three states to jointly impeach any federal judge and force a trial in the Senate.
>I know that’s not what they teach today in the law schools, but I know how to read and have pretty decent reading comprehension skills, and can think for my myself.
What they teach in law-schools is “case law” and “precedence” which deserve EVERY Citizen’s utter contempt; for ‘precedence’ is nothing more than the Judicial equivalent of the children’s game “telephone”being played with the Citizen’s Liberties.
That is the left's beloved man, known as our great, civil "libertarian".
No.
The ultimate arbiter of government frequently comes down to the will of those willing to take up arms and prevail, It was true for the IS in the 1770s, and the 1860s.
I think people are pretty well keeping track on which side members of the bar sit, if it comes to that. How did the Tories fare?
It’s ‘precedents,’ and it is called ‘stare decisis.’ I heard that stare decisis starting gaining popularity after Darwin’s evolutionary theories gained ground in the late Nineteenth Century....Before that, Cases referred to the Constitution and Blackstone’s Commentaries as a constant reminder of the standard. I don’t know this for certain but it would be interesting to know how much evolutionary thought influenced the law.
As noted by others, the Supreme Court has no Constitutional authority over the CiC of the military. The supreme authority over all three branches is supposed to be ‘ We the People’. The difficulty with this is that the body of ‘We the People’ changes. At the last election it changed to Obama’s favor. Hopefully in November another change will occure against Obama.
You can look at modern decisions and trace them back to their roots in the 13th century. The principals of law are consistent. The rights of Englishmen from government that you see partially captured in the Bill of Rights existed long before in the historic thread of English case law. It was carried forward in American law.
Currently we have all sorts of self-proclaimed interpreters of the Constitution. One says a phrase means one thing, another says it means somethings else. Joe Blow says federal law doesn't apply outside of D.C. Jane Doe says she doesn't have to pay federal taxes under her interpretation of the Constitution. The Supreme Court is the arbiter of the interpretation of the Constitution. It is constrained by stare decisis so it can't just go off and interpret the way it feels today. Thanks goodness for that.
The SCOTUS seems to be the chief Manipulator of the constitution.
Ignoring Obummer’s obvious and undeniable ineligibility to be president has made the court a joke.
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> “As a nation we formally accepted the English Common Law...”
.
No, there was no formal acceptance.
Common law was only loosely accepted as a matter of tradition.
In "Our Ageless Constitution," is an essay by Dr. Walter Berns and edited for that book, entitled "Do We Have A Living Constitution?" One portion of that essay deals with what appears to have been a deliberate attempt to misquote and misinterpret Marshall in order to justify the so-called "living constitution" idea of the Progressives. That portion is excerpted here:
"A former president of the American Political Science Association argues that the idea of a " 'living Constitution'...can trace its lineage back to John Marshall's celebrated advice in McCulloch v. Maryland (1819): 'We must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs' " The words quoted are certainly Marshall's but the opinion attributed to him is at odds with his well-known statements that, for example, the "principles" of the Constitution "are deemed fundamental [and] permanent" and, except by means of formal amendment, "unchangeable" (Marbury v. Madison). It is important to note that the discrepancy is not Marshall's; it is largely the consequence of the manner in which he is quoted - ellipses are used to join two statements separated by some eight pages in the original text. Marshall did not say that the Constitution should be adapted to the various crises of human affairs; he said that the powers of Congress are adaptable to meet those crises. The first statement appears in that part of his opinion where he is arguing that the Constitution cannot specify "all the subdivisions of which its great powers will admit;" if it attempted to do so, it would "partake of the prolixity of a legal code" (McCulloch v. Maryland), In the second statement, Marshall's subject is the legislative power, and specifically the power "to make all laws which shall be necessary and proper for carrying into execution" the explicitly granted powers.
"Neither Marshall nor any other prominent members of the founding generation can be 'appropriated' by the living Constitution school to support their erroneous views. Marshall's and the Founders' concern was not to keep the Constitution in tune with the times but, rather, to keep the times to the extent possible, in tune with the Constitution. And that is why the Framers assigned to the judiciary the task of protecting the Constitution as written.
"They were under no illusions that this would prove to be an easy task. Nevertheless, they had reason to believe that they had written a constitution that deserved to endure and, properly guarded, would endure. Hence, Madison spoke out forcefully against frequent appeals to the people for change. Marshall had this Madisonian passage in mind when, in his opinion for the Court in Marbury, he wrote:
"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental: and as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent."
"At this point, it is well to remember Hamilton's strong warning about unwarranted presumptions by those in government of a power to depart from the people's established form as quoted in the title of this essay.
"Marshall referred to the "principles" which he called "permanent," and the "basis on which the whole American fabric has been erected" Yet Marshall also chose to address the much broader issue of the general scope of the national powers. The Constitution must be construed to "...allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." It is these powers, not the Constitution, which are flexible and adaptable to meet the crises of "human affairs."
"Ironically, the very case cited by the "living Constitution" school, when properly read, demonstrates that John Marshall, at least, saw, no need for flexibility in the Constitution.
"What has been undertaken here has been providing (within a very brief compass indeed) an accurate statement of the principles underlying the American Constitution: pointing to (but by no means elaborating) the political theory from which they derive and the constitutional conclusions to which they lead. Among the latter is the untenability of the proposition that constitutional limitations can be jettisoned, constitutional power enhanced, or the constitutional division of powers altered, by means other than formal constitutional amendment.
"It will not be argued that it may sometimes be convenient to allow the Senate to originate a bill "for raising revenue," but convenience is not a measure of constitutionality. There is much to be said in favor of the legislative veto - Who would, in principle, deny the need of checks on administrative agencies? - but, as the Supreme Court correctly said, the Framers anticipated that Congress might find reason to employ such devices and, when designing the so-called "presentment clause" in Article 1, Section 7, forbade them ( Immigration and Naturalization Service v. Chadha). And from a particular partisan perspective it is understandably frustrating, simply because the required number of states had not yet ratified the Equal Rights Amendment, to be denied the power to promote the cause of sexual equality; but frustration alone cannot justify a judicial attempt to preclude the necessity of formal ratification, as Justice Brennan is said to have wished to do. In Frontiero v. Richardson (411 U.S. 677, 1973) the Supreme Court was divided on the issue of whether sex, like race, should be treated as a suspect classification. We are told that Justice Brennan circulated a draft opinion in which he proposed to declare classification by sex virtually impermissible and that he knew this would have the effect of "enacting" the pending ERA. "But Brennan was accustomed to having the Court out in front, leading any civil rights movement," a major publication stated. Hence, we are further told, he saw "no reason to wait several years for the states to ratify the amendment." No reason, that is, other than the fact, which Brennan implicitly acknowledged, that the Constitution as then written, and which had not yet been rewritten by the only people authorized to rewrite it, did not support the role he would have the Court hand down.
"Those who would use "convenience" or "frustration" as reason, or who insist that it lies within the powers of the Court (or the Congress or the Executive) to effect constitutional change, can be charged with a lack of respect for the principles on which, as Marshall wisely observed: "the whole American fabric has been erected."
"We are told that it is unreasonable - even foolish - to expect that the Framers could have written a Constitution suitable alike for a society of husbandman and a society of multinational corporations, to say nothing of one as well adapted to the age of the musket and sailing ship as to the age of intercontinental nuclear-tipped missiles. As the problems have changed, the argument goes, so must the manner in which they are confronted and solved, and the Constitution cannot be allowed to stand in the way. Indeed, there is no reason to allow it to stand in the way, we are told, because the Framers intended it to be flexible. And we are told that John Marshall would support this position. But it was Marshall, in McCulloch v. Maryland, who stated: "Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported." The United States, in this view was not intended to be a simple society of husbandmen, and Marshall Clearly saw that the Constitution empowered Congress to do what was required to meet the crises of the Republic, and to maintain the Constitutional structure intended by the Framers, changing it only when such change would be in keeping with the structure itself.
"That the American Constitution is long-lived, has enduring qualities, and was intended for the ages cannot be doubted. That it was founded on enduring principles, and that it was based on the authority of a people who are sovereign has been attested to by many of its leaders. That it can be changed when, and if, the people ordain such change is a part of its own provisions. For these reasons, it can be said to be a "Living Constitution" - but let that not be claimed by those who would use the language to subvert the structure."
Our Ageless Constitution, W. David Stedman & La Vaughn G. Lewis, Editors (Asheboro, NC, W. David Stedman Associates,1987) Part VII: ISBN 0-937047-01-5: (Essay adapted by Editors for publication in this Volume in consultation with Dr. Walter Berns from Berns' article by the same title in National Forum , The Phi Kappa Phi Journal, Fall 1984)
Justice Story asserted that it is "We, the People" who are the real arbiters of the Constitution. In a comment of admiration for its architecture and beauty, he concluded by saying:
"...and its defenses are impregnable from without. It has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. Republics are created by virtue, public spirit, and intelligence of the citizens."
Thanks for ping. Very important. Good stuff.
Thanks for the ping!
And yet they didn’t like each other. Hamilton being a big reason (if not the reason) Adams was a one term president.
So what do you prefer?
..."It is not, therefore, without strong reason, that it has been said, that 'the colonists, continuing as much subjects in the new establishment, where they had freely placed themselves, [with the consent of the crown,] as they had been in the old, carried with them their birthright, the laws of their country; because the customs of a free people are a part of their liberty'; and that 'the jurisprudence of England became that of the colonies, so far as it was applicable to the situation, at which they had newly arrived, because they were Englishmen residing within a distant territory of the empire.'"
"And so has been the uniform doctrine in America ever since the settlement of the colonies. The universal principle (and the practice has conformed to it) has been that the common law is our birthright and inheritance and that our ancestors brought hither with them Upon their emigration all of it, which was applicable to their situation. The whole Structure of our present jurisprudence stands upon the original foundations of the common law..."
"How differently did the Congress of 1774 think? They unanimously resolved, 'That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law.' They further resolved, 'that they were entitled to the benefit of such of the English statutes, as existed at the time of their colonization, and which they have by experience respectively found to be applicable to their several and local circumstances.' They also resolved, that their ancestors at the time of their emigration were 'entitled' (not to the rights of men, of expatriated men, but) 'to all the rights, liberties, and immunities of free and natural born subjects within the realm of England." [Journal of Congress, Declaration of Rights of the Colonies, Oct. 14, 1774, p. 27 to 31.]"
Common law was also formally accepted individually by the States:
Reception Provision of Massachusetts Constitution, 1780, ch. vi, art. vi. "All the laws which have heretofore been adopted, used, and approved in the Province, Colony, or State of Massachusetts Bay, and usually practised on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature; such parts only excepted as are repugnant to the rights and liberties contained in this constitution."
Reception statute of New York, 1786 (based on provision of NY Constitution, 1777, art. 35): "Whereas by the Constitution of this state it is declared that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the Legislature of the colony of New York, as together did form the law of the said colony, on [19 April 1775] (except such parts thereof as are by the said Constitution abrogated) shall be and continue the law of this state; subject to such alterations and provisions as the Legislature of this state shall, from time to time, make concerning the same. And whereas such of the said statutes as have been generally supposed to extend to the late colony and to this state, are contained in a great number of volumes [a commission is established to gather together and put before the legislature the appropriate statutes]."
Reception statute of Virginia, 1776: "And be it further ordained, That the common law of England, all statutes or acts of Parliament made in aid of the common law prior to the fourth year of the reign of King James the first, and which are of a general nature, not local to that kingdom, together with the several acts of the General Assembly of this colony now in force, so far as the same may consist with several ordinances, declarations, and resolutions of the General Convention, shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the legislative power of this colony."
Reception statute of Pennsylvania, 1777 [section]]1.: "Each and every one of the laws or acts of general assembly, that were in force and binding on the inhabitants of the said province on the 14th day of May last, shall be in force and binding on the inhabitants of this state, from and after the 10th day of February next, as fully and effectually, to all intents and purposes, as if the said laws, and each of them, had been made or enacted by this general assembly . . . . and the common law and such of the statute laws of England, as have heretofore been in force in the said province, except as hereafter excepted."
[[section]]2. "Provided always, that so much of every law or act of general assembly of the province aforesaid, as orders taking or subscribing any oath, affirmation or declaration of allegiance or fidelity to the king of Great Britain, or his successors, or oath of office; and so much of every law or act of general assembly aforesaid, as acknowledges any authority in the heirs or devisees of William Penn, Esq., deceased, the former governor of the said province, or any other person whomsoever as governor; and so much of every law or act of general assembly, as ascertains the number of members of assembly in any county, the time of election and the qualifications of electors; and so much of every law or act of assembly aforesaid, as declares, orders, directs or commands any matter or thing repugnant to, against, or inconsistent with the constitution of this commonwealth, is hereby declared not to be revived, but shall be null and void, and of no corce or effect; and so much of the statute laws of England aforesaid relating to felonies, as takes notice of or relates to treason or misprision of treason, or directs the style of the process in any case whatsoever, shall be, and is hereby declared, of no force or effect, anything herein contained to the contrary notwithstanding."
Reception Provision of the Delaware Constitution, 1776, art. 25: "The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this state, shall remain in force unless they shall be altered by a future law of the Legislature, such parts only excepted as are repugnant to the rights and privileges contained in this Constitution and the declaration of rights, &c., agreed by this convention."
There is the Constitution of the United States of America operating under the application of the jurisdiction of the 14th Amendment and it’s derivative Act of 1871.
And then there is the original Constitution for the united states of America without the application of the jurisdiction of the 14th Amendment or it’s derivative Act of 1871.
The Supreme Court knows that the difference between these two is literally night and day, and that this difference determines every word out of their august mouths.
Yet none of the millions of words written by hundreds, if not thousands, of Constitutional “experts” touches this subject with a ten foot pole.
This would be laughable, if it wasn’t so utterly, stupendously, catastrophic.
And The Band Plays On.
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.
Each Supreme Court Justice takes the following oath:
| "I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God." |
Furthermore, any decision rendered by the USSC based upon such dissenting information is null-and-void because it is based on something that is [again by the working-definition] contrary to the Constitution.
So, either the Supreme Court is acting outside/contrary-to the Constitution by this definitional-understanding; or this definition is incorrect. If it is incorrect, then by presenting themselves as High Lords above and beyond the Constitution it is obvious that they are both usurping authority that was not given to them by the Constitution and violating their oath of office.
Besides the above, why would we need a body whose purpose *is* the making & alteration of laws if the Supreme Court has such powers already? Know you not that the Roe v. Wade decision was proof that the Supreme Court can make new law, of whole cloth ,without any action upon the part of the legislature? Know you not that the prohibition against the either the uncompensated or under-compensated contained in the 5th amendment was utterly abolished by the Supreme Court in the 2005 Kelo v. City of New London case? Know you not that the inaction of the Supreme Court in the AIG/Bailout retroactive taxation and their inaction in the regard of the GM-bondholders is the defacto repudiation of the 4th, 5th, (6th xor 7th), and 8th Amendments in addition to the repudiation of the Constitutional prohibitions against both ex post facto law AND bills of attainder?
And you want me to "bend over and take" it because "the Supreme Court says they have the authority, so thy MUST have the authority"?
Isn't that at least a little bit circular? Do I not have inherent, God-given rights? Who are you, or even they, to tell me I have no right to Liberty?
Here is a relevant legal document,it was passed by Congress, along with word definitions; a straightforward reading of these (keeping the previously cited USSC decisions in mind) would undermine your claim that Stare decisis protects our liberties by constraining the USSC; most especially the Roe v Wade decision.
| We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. - Declaration of Independence [Adopted in Congress 4 July 1776] |
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| Liberty | Right [Legal] |
|---|---|
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| Unalienable | Repudiate |
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| Consent | |
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“Is The Supreme Court the Ultimate Arbiter of the Constitution?”
No. Of course not.
The PEOPLE are the ultimate “arbiters” of the Constitution, if indeed that Constitution means anything at all.
We are destined to find this out in the months and years ahead.
Interesting times, indeed.
>So what do you prefer?
The direct reading of the Law.
Consider this; the New Mexico State Constitution has the following:
Art II, Sec. 6. [Right to bear arms.]
No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational
use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality
or county shall regulate, in any way, an incident of the right to keep and bear arms.
Yet there is the following State Statute:
NMSA 30-7-2.4. Unlawful carrying of a firearm on university premises; notice; penalty.
A. Unlawful carrying of a firearm on university premises consists of carrying a firearm on university premises except by:
(1) a peace officer;
(2) university security personnel;
(3) a student, instructor or other university-authorized personnel who are engaged in army, navy, marine corps or air force reserve officer training corps programs or a state-authorized hunter safety training program;
(4) a person conducting or participating in a university-approved program, class or other activity involving the carrying of a firearm; or
(5) a person older than nineteen years of age on university premises in a private automobile or other private means of conveyance, for lawful protection of the person’s or another’s person or property.
B. A university shall conspicuously post notices on university premises that state that it is unlawful to carry a firearm on university premises.
C. As used in this section:
(1) “university” means a baccalaureate degree-granting post-secondary educational institution, a community college, a branch community college, a technical-vocational institute and an area vocational school; and
(2) “university premises” means:
—(a) the buildings and grounds of a university, including playing fields and parking areas of a university, in or on which university or university-related activities are conducted; or
—(b) any other public buildings or grounds, including playing fields and parking areas that are not university property, in or on which university-related and sanctioned activities are performed.
D. Whoever commits unlawful carrying of a firearm on university premises is guilty of a petty misdemeanor.
Now, is it legal for me to open-carry on Campus? Why or why not? {By going for direct-readings rather than past decisions I force this contradiction within the law into the light; basing a decision on the past-decisions allows the State to ignore this issue altogether.}
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