Free Republic

"Until deemed useless and unwarranted, by a handful in the judiciary that were appointed to maintain Constitutional directive, decided to put a hand into making law without being representative via vote to achieve the status to do so."

I've searched and searched for this article or amendment. I couldn't find it. :(

Is it part of that "living constitution" I keep hearing about?

"Our unalienable rights cannot be 'repealed' away. Your pretense that they can is a sheer denial, as securing the "Blessings of Liberty" was one of the founding principles of our Constitution."

Dred Scott would have been happy to hear that. The Supreme Court ruled against him.

I keep asking you to prove your contention by citing what part of the Constitution forbids repeal of any one or all of the first ten amendments. So far, you haven't cited anything.

And one amendment, the 18th, has already been repealed by a further amendment, the 21st, so I have both Article V, and precedent backing my argument. What do you have? Come out with it.

"-- You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself. --"

That is a fact, all right. It is also what Article V has provided since the Constitution was ratified, nothing new.
What was Root's complaint again? I took it to be the quorum business, since Root mentioned it and Article V does not contain the word, but discovered that the Bill of Rights was also ratified by quorums. The only thing left is the pretense that an amendment cannot be repealed. Neither you nor your quotations from Root have supported that novel claim. Do you have anything else?

If you've read what I wrote, you know what I think, and why.

The Constitution doesn't have "principles." It has Articles, Sections, and clauses. For an act to be
"unconstitutional" it has to be contrary to one or more of those. What anyone might presume to be the Constitution's "principles," like its "penumbras" and "emanations," is irrelevant to the constitutionality of any act. An act of any legislature is constitutional if authorized by, and not prohibited by, any applicable constitution.

An amendment to a constitution is constitutional if properly ratified, and not prohibited by any limitations on the amending power, or by any superior constitution. Such limitations on a few subjects are spelled out in Article V of the U.S. Const. If you wish to give the 2nd Amend. the unrepealable status of of, say, each State's equal suffrage in the Senate, you would have to spell it out in a further amendment, since such a limitation does not now exist.

It does no good, as Elihu Root found out, to pretend that it does.

The proper procedure is in Article V:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

We the People of the United Nations, in Order to form a more nuanced Union, establish social Justice, insure domestic submission, provide food and shelter for all, promote the penumbra, and secure the emanations of Privacy to the victims of the Patriarchy, do ordain and establish this Constipation for the United Nations of the World.

;)

"UNALIENABLE. The state of a thing or right which cannot be sold.
The natural rights of life and liberty are unalienable."

Which has no bearing on whether something is unconstitutional, does it?

"UNCONSTITUTIONAL. That which is contrary to the constitution."

Right; Article V is part of the Constitution. An act of a court contrary to Article V is unconstitutional.

Ratification of an amendment pursuant to Article V is not contrary to the Constitution, hence it is constitutional. That such an amendment would override previous parts of the Constitution is the purpose of amendment, is it not? If you know how to amend a law without changing the law, I'd be real curious to see an example, together with an explanation of why an amendment that makes no change in the law is needed.

"Londonistan." 88,900 hits on Google.

"Our right to arms is inalienable, and cannot be 'repealed'."
Doing violence to 'language' is of concern when infringements of rights are at issue? That's quite the principle."

Already answered. If you wish to discuss, learn that specific words mean specific and distinct things.

"Inalienable is used in the Declaration to define our rights to life, liberty, & property, as noted in the Constitution."

Where noted? Cite the the article and section, please. "Inalienable" does not appear in the Declaration, either. "Unalienable*" does, but that does not define any rights (don't know why you claim that, we have not disputed any definition of rights, only of "unconstitutional.") Here is the context (from the Declaration):

"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 of 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."

Note:

1) The source of the rights thus claimed is not any constitution or other instrument of human government, but the Creator of men, i.e. God.

2) It is the "Right of the People" to alter (amend) or abolish governments. "Right" only when said governments become destructive of rights, but within the power of the people in any case.

Even a cursory study of human history shows that most governments have acted against right, even making such wrongs part of their constitutions. (The most famous example in ours being the Article IV requirement that persons "held to Service or Labour," i.e. slaves, are to be returned to their masters across State lines.) That was a deprivation of the unalienable right to Liberty endowed upon those persons by their Creator. And it was part of the Constitution, hence "constitutional."

The 2nd Amendment contains no provision prohibiting its repeal. Article V provides a method for that repeal. Just as the 18th was repealed, the 2nd can be. Hopefully their is enough support for the 2nd to prevent that, or if it happens, enough support for another secession. Both would be constitutional: repeal, under Article V, or secession, under Amendment X.

*UNALIENABLE: The state of a thing or right which cannot be sold. -http://www.constitution.org/bouv/bouvier_u.htm

"The American Press, largely a gutless shower of sycophants, have demonised the UK for its tolerance of Muslims." -Brian Reade

Uh, Mr. Reade, old chap, wasn't it Muslims who just killed a bunch of you?

"How could the Constitution 'provide' for amendments that infringe on its principles?"

Article V "provides" that.

"Why do you want government to have a power you agree is a bad idea?"

I don't, as I've written.

"Not really; - government takes the power we allow them to have. -- We have met the enemy, - he is us."

The lawful extent of that allowance is spelled out in the Constitution. Propose an amendment if you wish to reduce it. Something along the lines of the existing restrictions on amendment in Article V, but prohibiting the repeal or modification of the first ten amendments would be something I could support.

"Only if the amendment is constitutional in itself. Our right to arms is inalienable, and cannot be 'repealed'."

Nothing is "unconstitutional" unless prohibited (or not authorized) by the constitution in question. Nowhere in the U.S. Constitution is the word "inalienable" used.

"Doing violence to 'language' is of concern when infringements of rights are at issue? That's quite the principle."

If you are not willing to use language as a means of common understanding, no discussion is possible.

"4th clause of the 98th Section"

9th Section. I don't know how that 8 got in there. :(

" --- You will have declared that --- Congress, plus a majority of the --- States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself. -- "

Except you are dropping the part that Root acknowledged: a super majority, not a simple majority is required for these changes. Article V grants exactly the power Root was complaining of.

"Quorums are not the point.
Root 'boldly' argued that alcohol prohibition is an unconstitutional infringement on our basic individual rights. -- Much as an amendment prohibiting guns would be unconstitutional. He was arguing principle."

Alcohol prohibition WITHOUT that amendment would have been unconstitutional. The amendment was a "constitutional" infringement on our rights, as was this part of Article IV: "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due." Since the Persons in question were being deprived of their liberty (an "unalienable right," as the unanimous Declaration puts it) from birth, without any crime on their part, I'd say that was rather worse the the Eighteenth Amend. And yet, it was part of the original Constitution, and hence constitutional at that time. An act of Congress prohibiting gun ownership would be unconstitutional because such a statute is prohibited by the 2nd and 10th Amendments. An amendment AMENDS the Constitution, and if ratified could remove that prohibition.

"With the proviso that amendments be " -- Valid to all Intents and Purposes, -- "

Proviso??? "...which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;" That is saying exactly what I am saying; that a ratified amendment SHALL BE VALID. The only way a court could strike it down would be to challenge the ratification.

"There is nothing in the Constitution giving government or majorities the power to 'amend away' our individual rights to life, liberty, or property. Can you point to such a power?"

Article V. Does it really need to be quoted again? Here is the only limitation on the amending power therein granted: "Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." The only part of that which touches on individual rights is the 4th clause of the 98th Section of the 1st Article: "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken." There is nothing there that prohibits the 18th Amendment or prevents the repeal of the 2nd.

"Why do you want government to have a power you agree is a bad idea?"

What powers I want the government to have and what powers it does have are two different things. Confusing personal (even strongly held) preferences with the Constitution is what bad judges do. I don't wish to emulate them.

"Wordplay. - An amendment, repealing the 2nd for instance, - would be repugnant to the document and could be termed both unprincipled & unconstitutional."

In a conflict between an original law, and an amendment to the law, the amendment rules. That is the purpose of an amendment. Repealing the 2nd by amendment would be contrary to my principles, certainly, but without doing violence to the language, could not be said to be unconstitutional.

But the parts you bolded merely re-state Article V of the original Constitution. Congress and the States are specifically delegated the power to change the Constitution itself. There is nothing in that document limiting the changes to certain "principles," that I know of anyway. Can you point to such a limitation?

I agree that the 18th was a bad idea, as would be repeal of the 2nd (which would be a casus belli for me), but the Constitution provides for it. "Unconstitutional" means prohibited by a constitution; it is not synonymous with "unprincipled."

I think I have a refutation here.

According to your post, Root argued: "You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself."

That tracks the language of Article V of the U.S. Const.: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States," with the exception of the word "quorum."

I assume Root was, therefor, arguing that a quorum was insufficient to the purpose. Was it?

I found this case where the Senate record concerning the vote proposing the Bill of Rights itself was quoted: "'Resolved: That the Senate do concur in the resolve of the House of Representatives on 'articles to be proposed to the Legislatures of the states as amendments to the Constitution of the United States,' with amendments; two-thirds of the Senators present concurring therein.' 1st Cong. (1st Sess.) September 9, 1789, Senate Journal, 77." (Emphasis mine)

Likewise for the House: "'A message from the House of Representatives. Mr. Beckley, their clerk, brought up a resolve of the House of this date, to agree to the ... amendments proposed by the Senate to 'Articles of amendment to be proposed to the Legislatures of the several states as amendments to the Constitution of the United States,' ... ; two- thirds of the members present concurring on each vote. ...' 1st Cong. (1st Sess.) Sept. 21, 1789, Senate Journal, 83."

If a two-thirds of a quorum was all that was necessary to ratify the first ten amendments, there seems little justification for claiming more would be needed for the eighteenth.

"As in 1912, those remain bad ideas."

That is why I posted FDR's argument. I was seeing people, on Free Republic of all places, making the same points FDR did. I think that any judge sworn to uphold the Constitution ought do exactly that when faced with a conflict between an act of Congress and said Constitution. I do not think they should substitute their own policy preferences for the words of that document; but to remove their check on an overreaching Congress is a remedy worse than the ill it seeks to cure.

Perhaps, for those opposed to judicial review, reading that concurrence from a notoriously leftist President will cause them to reconsider.

Here are three possible remedies that might not be harmful:

1) Inform juries of their power to apply the Constitution, regardless of the trial judge's opinion. This would give the people a more direct ability to hold their government to the limits imposed by that Constitution.

2) Nominate, appoint, or elect, whenever possible, judges at every level who will base the their judgments on a hierarchy of written law, with the U.S. Constitution at the top. Impeach them if they rule outside the law. Apply the same criteria when choosing members of the Legislative and Executive branches. They are all supposed to be bound by the Constitution; they swear oaths to that effect. We ought to hold them to it.

3) Another poster mentioned that the "living Constitution" doctrine is taught in law schools. This needs to stop. Do they also teach "living contracts" whose terms are mutable? If not, pointing out the contradiction should be helpful.

The first remedy should be the easiest, the last the hardest, but we should make the effort on all three.

Here was a Democrat proposal:

Fireside Chat on Reorganization of the Judiciary
March 9, 1937:

"Last Thursday I described in detail certain economic problems which everyone admits now face the Nation. For the many messages which have come to me after that speech, and which it is physically impossible to answer individually, I take this means of saying "thank you."

Tonight, sitting at my desk in the White House, I make my first radio report to the people in my second term of office.

I am reminded of that evening in March, four years ago, when I made my first radio report to you. We were then in the midst of the great banking crisis.

Soon after, with the authority of the Congress, we asked the Nation to turn over all of its privately held gold, dollar for dollar, to the Government of the United States.

Today's recovery proves how right that policy was.

But when, almost two years later, it came before the Supreme Court its constitutionality was upheld only by a five-to-four vote. The change of one vote would have thrown all the affairs of this great Nation back into hopeless chaos. In effect, four Justices ruled that the right under a private contract to exact a pound of flesh was more sacred than the main objectives of the Constitution to establish an enduring Nation.

In 1933 you and I knew that we must never let our economic system get completely out of joint again - that we could not afford to take the risk of another great depression.

We also became convinced that the only way to avoid a repetition of those dark days was to have a government with power to prevent and to cure the abuses and the inequalities which had thrown that system out of joint.

We then began a program of remedying those abuses and inequalities - to give balance and stability to our economic system - to make it bomb-proof against the causes of 1929.

Today we are only part-way through that program - and recovery is speeding up to a point where the dangers of 1929 are again becoming possible, not this week or month perhaps, but within a year or two.

National laws are needed to complete that program. Individual or local or state effort alone cannot protect us in 1937 any better than ten years ago.

It will take time - and plenty of time - to work out our remedies administratively even after legislation is passed. To complete our program of protection in time, therefore, we cannot delay one moment in making certain that our National Government has power to carry through.

Four years ago action did not come until the eleventh hour. It was almost too late.

If we learned anything from the depression we will not allow ourselves to run around in new circles of futile discussion and debate, always postponing the day of decision.

The American people have learned from the depression. For in the last three national elections an overwhelming majority of them voted a mandate that the Congress and the President begin the task of providing that protection - not after long years of debate, but now.

The Courts, however, have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.

We are at a crisis in our ability to proceed with that protection. It is a quiet crisis. There are no lines of depositors outside closed banks. But to the far-sighted it is far-reaching in its possibilities of injury to America.

I want to talk with you very simply about the need for present action in this crisis - the need to meet the unanswered challenge of one-third of a Nation ill-nourished, ill-clad, ill-housed.

Last Thursday I described the American form of Government as a three horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government - the Congress, the Executive and the Courts. Two of the horses are pulling in unison today; the third is not. Those who have intimated that the President of the United States is trying to drive that team, overlook the simple fact that the President, as Chief Executive, is himself one of the three horses.

It is the American people themselves who are in the driver's seat.

It is the American people themselves who want the furrow plowed.

It is the American people themselves who expect the third horse to pull in unison with the other two.

I hope that you have re-read the Constitution of the United States in these past few weeks. Like the Bible, it ought to be read again and again.

It is an easy document to understand when you remember that it was called into being because the Articles of Confederation under which the original thirteen States tried to operate after the Revolution showed the need of a National Government with power enough to handle national problems. In its Preamble, the Constitution states that it was intended to form a more perfect Union and promote the general welfare; and the powers given to the Congress to carry out those purposes can be best described by saying that they were all the powers needed to meet each and every problem which then had a national character and which could not be met by merely local action.

But the framers went further. Having in mind that in succeeding generations many other problems then undreamed of would become national problems, they gave to the Congress the ample broad powers "to levy taxes ... and provide for the common defense and general welfare of the United States."

That, my friends, is what I honestly believe to have been the clear and underlying purpose of the patriots who wrote a Federal Constitution to create a National Government with national power, intended as they said, "to form a more perfect union ... for ourselves and our posterity."

For nearly twenty years there was no conflict between the Congress and the Court. Then Congress passed a statute which, in 1803, the Court said violated an express provision of the Constitution. The Court claimed the power to declare it unconstitutional and did so declare it. But a little later the Court itself admitted that it was an extraordinary power to exercise and through Mr. Justice Washington laid down this limitation upon it: "It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt."

But since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State Legislatures in complete disregard of this original limitation.

In the last four years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy-making body.

When the Congress has sought to stabilize national agriculture, to improve the conditions of labor, to safeguard business against unfair competition, to protect our national resources, and in many other ways, to serve our clearly national needs, the majority of the Court has been assuming the power to pass on the wisdom of these acts of the Congress - and to approve or disapprove the public policy written into these laws.

That is not only my accusation. It is the accusation of most distinguished justices of the present Supreme Court. I have not the time to quote to you all the language used by dissenting justices in many of these cases. But in the case holding the Railroad Retirement Act unconstitutional, for instance, Chief Justice Hughes said in a dissenting opinion that the majority opinion was "a departure from sound principles," and placed "an unwarranted limitation upon the commerce clause." And three other justices agreed with him.

In the case of holding the AAA unconstitutional, Justice Stone said of the majority opinion that it was a "tortured construction of the Constitution." And two other justices agreed with him.

In the case holding the New York minimum wage law unconstitutional, Justice Stone said that the majority were actually reading into the Constitution their own "personal economic predilections," and that if the legislative power is not left free to choose the methods of solving the problems of poverty, subsistence, and health of large numbers in the community, then "government is to be rendered impotent." And two other justices agreed with him.

In the face of these dissenting opinions, there is no basis for the claim made by some members of the Court that something in the Constitution has compelled them regretfully to thwart the will of the people.

In the face of such dissenting opinions, it is perfectly clear that, as Chief Justice Hughes has said, "We are under a Constitution, but the Constitution is what the judges say it is."

The Court in addition to the proper use of its judicial functions has improperly set itself up as a third house of the Congress - a super-legislature, as one of the justices has called it - reading into the Constitution words and implications which are not there, and which were never intended to be there.

We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men.

I want - as all Americans want - an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by the arbitrary exercise of judicial power - in other words by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts which are universally recognized.

How then could we proceed to perform the mandate given us? It was said in last year's Democratic platform, "If these problems cannot be effectively solved within the Constitution, we shall seek such clarifying amendment as will assure the power to enact those laws, adequately to regulate commerce, protect public health and safety, and safeguard economic security." In other words, we said we would seek an amendment only if every other possible means by legislation were to fail.

When I commenced to review the situation with the problem squarely before me, I came by a process of elimination to the conclusion that, short of amendments, the only method which was clearly constitutional, and would at the same time carry out other much needed reforms, was to infuse new blood into all our Courts. We must have men worthy and equipped to carry out impartial justice. But, at the same time, we must have Judges who will bring to the Courts a present-day sense of the Constitution - Judges who will retain in the Courts the judicial functions of a court, and reject the legislative powers which the courts have today assumed.

In forty-five out of the forty-eight States of the Union, Judges are chosen not for life but for a period of years. In many States Judges must retire at the age of seventy. Congress has provided financial security by offering life pensions at full pay for Federal Judges on all Courts who are willing to retire at seventy. In the case of Supreme Court Justices, that pension is $20,000 a year. But all Federal Judges, once appointed, can, if they choose, hold office for life, no matter how old they may get to be.

What is my proposal? It is simply this: whenever a Judge or Justice of any Federal Court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the President then in office, with the approval, as required by the Constitution, of the Senate of the United States.

That plan has two chief purposes. By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all Federal justice speedier and, therefore, less costly; secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our national Constitution from hardening of the judicial arteries. The number of Judges to be appointed would depend wholly on the decision of present Judges now over seventy, or those who would subsequently reach the age of seventy.

If, for instance, any one of the six Justices of the Supreme Court now over the age of seventy should retire as provided under the plan, no additional place would be created. Consequently, although there never can be more than fifteen, there may be only fourteen, or thirteen, or twelve. And there may be only nine.

There is nothing novel or radical about this idea. It seeks to maintain the Federal bench in full vigor. It has been discussed and approved by many persons of high authority ever since a similar proposal passed the House of Representatives in 1869.

Why was the age fixed at seventy? Because the laws of many States, the practice of the Civil Service, the regulations of the Army and Navy, and the rules of many of our Universities and of almost every great private business enterprise, commonly fix the retirement age at seventy years or less.

The statute would apply to all the courts in the Federal system. There is general approval so far as the lower Federal courts are concerned. The plan has met opposition only so far as the Supreme Court of the United States itself is concerned. If such a plan is good for the lower courts it certainly ought to be equally good for the highest Court from which there is no appeal.

Those opposing this plan have sought to arouse prejudice and fear by crying that I am seeking to "pack" the Supreme Court and that a baneful precedent will be established.

What do they mean by the words "packing the Court"?

Let me answer this question with a bluntness that will end all honest misunderstanding of my purposes.

If by that phrase "packing the Court" it is charged that I wish to place on the bench spineless puppets who would disregard the law and would decide specific cases as I wished them to be decided, I make this answer: that no President fit for his office would appoint, and no Senate of honorable men fit for their office would confirm, that kind of appointees to the Supreme Court.

But if by that phrase the charge is made that I would appoint and the Senate would confirm Justices worthy to sit beside present members of the Court who understand those modern conditions, that I will appoint Justices who will not undertake to override the judgment of the Congress on legislative policy, that I will appoint Justices who will act as Justices and not as legislators - if the appointment of such Justices can be called "packing the Courts," then I say that I and with me the vast majority of the American people favor doing just that thing- now.

Is it a dangerous precedent for the Congress to change the number of the Justices? The Congress has always had, and will have, that power. The number of justices has been changed several times before, in the Administration of John Adams and Thomas Jefferson - both signers of the Declaration of Independence - Andrew Jackson, Abraham Lincoln and Ulysses S. Grant.

I suggest only the addition of Justices to the bench in accordance with a clearly defined principle relating to a clearly defined age limit. Fundamentally, if in the future, America cannot trust the Congress it elects to refrain from abuse of our Constitutional usages, democracy will have failed far beyond the importance to it of any king of precedent concerning the Judiciary.

We think it so much in the public interest to maintain a vigorous judiciary that we encourage the retirement of elderly Judges by offering them a life pension at full salary. Why then should we leave the fulfillment of this public policy to chance or make independent on upon the desire or prejudice of any individual Justice?

It is the clear intention of our public policy to provide for a constant flow of new and younger blood into the Judiciary. Normally every President appoints a large number of District and Circuit Court Judges and a few members of the Supreme Court. Until my first term practically every President of the United States has appointed at least one member of the Supreme Court. President Taft appointed five members and named a Chief Justice; President Wilson, three; President Harding, four, including a Chief Justice; President Coolidge, one; President Hoover, three, including a Chief Justice.

Such a succession of appointments should have provided a Court well-balanced as to age. But chance and the disinclination of individuals to leave the Supreme bench have now given us a Court in which five Justices will be over seventy-five years of age before next June and one over seventy. Thus a sound public policy has been defeated.

I now propose that we establish by law an assurance against any such ill-balanced Court in the future. I propose that hereafter, when a Judge reaches the age of seventy, a new and younger Judge shall be added to the Court automatically. In this way I propose to enforce a sound public policy by law instead of leaving the composition of our Federal Courts, including the highest, to be determined by chance or the personal indecision of individuals.

If such a law as I propose is regarded as establishing a new precedent, is it not a most desirable precedent?

Like all lawyers, like all Americans, I regret the necessity of this controversy. But the welfare of the United States, and indeed of the Constitution itself, is what we all must think about first. Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But we cannot yield our constitutional destiny to the personal judgement of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present.

This plan of mine is no attack on the Court; it seeks to restore the Court to its rightful and historic place in our Constitutional Government and to have it resume its high task of building anew on the Constitution "a system of living law." The Court itself can best undo what the Court has done.

I have thus explained to you the reasons that lie behind our efforts to secure results by legislation within the Constitution. I hope that thereby the difficult process of constitutional amendment may be rendered unnecessary. But let us examine the process.

There are many types of amendment proposed. Each one is radically different from the other. There is no substantial groups within the Congress or outside it who are agreed on any single amendment.

It would take months or years to get substantial agreement upon the type and language of the amendment. It would take months and years thereafter to get a two-thirds majority in favor of that amendment in both Houses of the Congress.

Then would come the long course of ratification by three-fourths of all the States. No amendment which any powerful economic interests or the leaders of any powerful political party have had reason to oppose has ever been ratified within anything like a reasonable time. And thirteen states which contain only five percent of the voting population can block ratification even though the thirty-five States with ninety-five percent of the population are in favor of it.

A very large percentage of newspaper publishers, Chambers of Commerce, Bar Association, Manufacturers' Associations, who are trying to give the impression that they really do want a constitutional amendment would be the first to exclaim as soon as an amendment was proposed, "Oh! I was for an amendment all right, but this amendment you proposed is not the kind of amendment that I was thinking about. I am therefore, going to spend my time, my efforts and my money to block the amendment, although I would be awfully glad to help get some other kind of amendment ratified."

Two groups oppose my plan on the ground that they favor a constitutional amendment. The first includes those who fundamentally object to social and economic legislation along modern lines. This is the same group who during the campaign last Fall tried to block the mandate of the people.

Now they are making a last stand. And the strategy of that last stand is to suggest the time-consuming process of amendment in order to kill off by delay the legislation demanded by the mandate.

To them I say:I do not think you will be able long to fool the American people as to your purposes.

The other groups is composed of those who honestly believe the amendment process is the best and who would be willing to support a reasonable amendment if they could agree on one.

To them I say: we cannot rely on an amendment as the immediate or only answer to our present difficulties. When the time comes for action, you will find that many of those who pretend to support you will sabotage any constructive amendment which is proposed. Look at these strange bed-fellows of yours. When before have you found them really at your side in your fights for progress?

And remember one thing more. Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of Justices who would be sitting on the Supreme Court Bench. An amendment, like the rest of the Constitution, is what the Justices say it is rather than what its framers or you might hope it is.

This proposal of mine will not infringe in the slightest upon the civil or religious liberties so dear to every American.

My record as Governor and President proves my devotion to those liberties. You who know me can have no fear that i would tolerate the destruction by any branch of government of any part of our heritage of freedom.

The present attempt by those opposed to progress to play upon the fears of danger to personal liberty brings again to mind that crude and cruel strategy tried by the same opposition to frighten the workers of America in a pay-envelope propaganda against the Social Security Law. The workers were not fooled by that propaganda then. The people of America will not be fooled by such propaganda now.

I am in favor of action through legislation:

First, because I believe that it can be passed at this session of the Congress.

Second, because it will provide a reinvigorated, liberal-minded Judiciary necessary to furnish quicker and cheaper justice from bottom to top.

Third, because it will provide a series of Federal Courts willing to enforce the Constitution as written, and unwilling to assert legislative powers by writing into it their own political and economic policies.

During the past half century the balance of power between the three great branches of the Federal Government, has been tipped out of balance by the Courts in direct contradiction of the high purposes of the framers of the Constitution. It is my purpose to restore that balance. You who know me will accept my solemn assurance that in a world in which democracy is under attack, I seek to make American democracy succeed. You and I will do our part."

-Franklin Delano Roosevelt

It appears we have been here before.

In its recent eminent domain decision, the Supreme Court blocked the U.S. power to override a local government decision. That was not an example of the federal government over-extending its power; unless you are arguing that the precedent (or renewal of existing precedent) makes it more likely that the federal government could also exercise eminent domain for the benefit of private parties at some future time.

"He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself." — Thomas Paine

"It is interesting that Thomas, so interested in the original understanding, has nothing to say on the great fraud of the "incorporation" of the Bill of Rights by the Fourteenth Amendment." -Matthew Franck

Jon Roland, over at the Constitution Society:
http://www.constitution.org/col/intent_14th.htm
has researched and written an interesting article on the intent of the people who wrote the Fourteenth Amendment. Here is some of what those politicians said:

The first draft of the proposed Fourteenth Amendment was debated in the House for three days, beginning on February 27, 1866. Bingham, its author, argued on its behalf that previously "this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States."

Quoting Barron v. Baltimore (1833), Representative Michael Kerr of Indiana argued that the Bill of Rights limited only Congress. Martin Thayer of Pennsylvania responded: "Of what value are those guarantees if you deny all power on the part of the Congress of the United States to execute and enforce them?" Thayer's argument exhibited the intent of what would become the Fourteenth Amendment.

Bingham wished to "arm Congress with the power to ... punish all violations by State Officers of the bill of rights."

What would become the Fourteenth Amendment was debated in the House on May 8 through 10. Stevens remarked that its provisions "are all asserted, in some form or another, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This Amendment supplies that defect, and allows Congress to correct the unjust legislation of the States."

Either those people meant something contrary to what they were saying was their purpose, Roland is misquoting them, or Franck is full of it.