A Bit of History
During 1787-1789 when the newly proposed constitution of 1787 was being debated in the newspapers of that day, two opposing groups fought to capture the hearts and minds of the American public. One was the “Federalists,” who should have been more accurately dubbed “centralized statists,”because they believed in a more powerful national government. Countering the “Federalists” were the so-called “Anti-Federalists,” who should have been more accurately dubbed as “true federalists,” because they believed in the republican principle of decentralized political power.
One crucial issue argued by the Federalists and the Anti-Federalists dealt with taxation: The Anti-Federalists wanted taxing power to remain with the states, thus making it necessary for the central government to come “hat-in-hand” to the states and request needed operating funds. What a blessing! Contrary to what we find in our poorly written history books, this practice of taxation under the Articles of Confederation served to protect the general public against the type of runaway spending by Congress and over-active presidential administrations that we are cursed with today. Certainly, this effective rein on congressional spending would have kept America out of the Spanish-American war (our first venture in international imperialism) and every international war since, including the unconstitutional first and second wars against Iraq. A two-fold blessed result would have been that the citizens of America would now be much richer (wars are enormously expensive!) and also that our country today would have grown to be a more peace-loving republic like Switzerland with its independent cantons which control government spending in that country. But this is a topic for another time.
The Wisdom of the Anti-federalists
A second crucial issue that divided the Federalists and the Anti-Federalists, and the one that is especially pertinent to this essay was the Supreme Court. The Anti-Federalists feared that the establishment of a supreme court at the federal level would inevitably lead to a judicial tyranny imposed by unelected, life-time-appointed individuals who would be difficult to remove from office. Indeed, this is exactly what did happen, and quickly so, beginning with the power-centralizing court ruling by John Marshall concerning his unconstitutional concept of judicial review (Marbury v.Madison, 1803). The original idea under the Constitution of 1787 was that each of the three departments (Legislative, Executive, and Judicial) would have equal authority in interpreting what is constitutional and what is not. But this original idea was fatally wounded under the strong influence of Marshall and his domination of the Court.
The classic refutation to John Marshall’s judicial stance came from Justice John Bannister Gibson of the Pennsylvania Supreme Court in his dissent to Eakin v. Raub (1825). Justice Gibson wrote:
. . . Now, what are the powers of the judiciary at the common law? They are those that necessarily arise out of its immediate business; and they are therefore commensurate only with the judicial execution of the municipal law, or, in other words, with the administration of distributive justice, without extending to anything of a political cast whatever. . . . It will be conceded, then, that the ordinary and essential powers of the judiciary do not extend to the annulling of an act of the legislature. . . .
. . . there is no effectual guard against legislative usurpation but public opinion, the force of which, in this country is inconceivably great. . . . Once let public opinion be so corrupt as to sanction every misconstruction of the constitution and abuse of power which the temptation of the moment may dictate, and the party which may happen to be predominant, will laugh at the puny efforts of a dependent power to arrest it in its course.
For these reasons, I am of the opinion that it rests with the people, in whom full and absolute sovereign power resides, to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act. . . . On the other hand, the judiciary is not infallible; and an error by it would admit of no remedy but a more distinct expression of the public will, through the extraordinary medium of a convention; whereas, an error by the legislature admits of a remedy by an exertion of the same will, in the ordinary exercise of the right of suffrage. . . . (Stanley I. Kutler, The Supreme Court and the Constitution, Boston: Houghton Mifflin Company, 1969, 31-35.)
The following quote appeared in the New York Journal between October, 1787, and April, 1788. The words were written by Brutus, an Anti-Federalist, in response to essays written by Publius, a Federalist (both are pen names, which were commonly used at the time):
I said in my last number, that the supreme court under this constitution would be exalted above all other power in the government, and subject to no controul. . . .
. . . The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behaviour, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.
. . . There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. . . .
. . .Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted: one adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them. In the mean time all the art and address of those who wish for a change will be employed to make converts to their opinion. . . .
. . .but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but with a high hand and an outstretched arm. (Herbert J. Storing, ed, The Anti-Federalist, Chicago, The University of Chicago Press,1985,182-187.)
What We Need to Do
There are a number of things we must do to return to the historic American concept of freedom to own and control the use of property without governmental interference, which has been gradually undermined, step by step, over the years. Some of my suggestions will no doubt appear radical, or “politically incorrect,” or even perhaps not achievable, given the existing “mind set” of the long-suffering American public. This does not concern me. My purpose is to “cut to the quick” by focusing on what we must do to change from the direction of tyranny in which we have for so long been heading. Hopefully, with new light shed on basic problems through radical thinking (radical in the good sense), public attitudes might change, and what was once deemed impossible to achieve might well be seen as workable alternatives.
1. We should pay heed to the warnings of the Anti-Federalists that creation of a supreme court would lead to a tyranny of a non-elected body of insulated individuals who would regard themselves as little gods.
With the passage of time, members of the Supreme Court were gradually infected with the mentality of centralized statism (socialism/fascism) which became so predominant in Washington/London circles. And, during the last two or three generations, members of the Court have succumbed to the idea of “one worldism.”
Thus, their rulings and strained interpretations of the Constitution increasingly serve to undermine the sovereignty of our nation by making our “law of the land” inferior to the rulings of the United Nations, the World Bank, the World Trade Organization (WTO), the North American Free Trade Association (NAFTA), the Central American Free Trade Association (CAFTA); and now the Trans-Texas Corridor (TTC) scheme to internationalize our roads has come upon the scene.
Article III of the Constitution of the United States says that judges of the supreme and inferior courts “shall hold their offices during good behavior” and that “the Supreme Court shall have appellate jurisdiction . . . with such exceptions, and under such regulations as the Congress shall make.”
Some critics of the Supreme Court have suggested that Article III can thus be used to rein in unconstitutional meanderings of the Court, but this is rather unlikely because the current makeup of the Court is the product of the mental milieu in Washington, D.C., which won’t be altered without a groundswell change of public opinion. No, a workable solution must be found elsewhere.
2. We should pay careful attention to Justice John Bannister Gibson’s dissent regarding the proper sphere of powers regarding the Supreme Court. In short, we should recognize that each department of the federal government has proper say as to what is constitutional and what is not within its own sphere; that errors committed by the Congress can be corrected by recalling members from office or through the passage of new legislation; but that errors in judgment by the Supreme Court, if we continue in the line of John Marshall’s folly, that the Court has the final say which overrides the view of the Legislative and Executive departments in their proper spheres, are extremely difficult to put back in order. In short, we must nullify the long-standing unconstitutional idea that the Supreme Court justices have any authority to nullify acts of Congress.
3. It is high time that we recognize that the practice of government “takings” through the so-called “power of eminent domain” is a hold-over of the ungodly idea that medieval kings were the ultimate owners of all the land and the people of each nation. Chapter 21 of I Kings in the Bible describes how King Ahab lusted after the vineyard of Naboth, an ordinary citizen, who refused to sell his vineyard to the king. Verse 25 states, “But there was none like unto Ahab, which did sell himself to work wickedness in the sight of the Lord, whom Jezebel his wife stirred up.” God called the prophet Elijah to curse Ahab for his unjust “taking” of Naboth’s property and for his death.
There is no real need for governmental units to rely on the “power of eminent domain” to secure property by force from unwilling sellers. Why? Because there are always alternative sites for needed buildings or alternative routes for roads that can be purchased at a “fair price” from willing sellers. It is the economic function of the competitive marketplace to determine what is really a “fair” price. It might be 2, 3, 5, or even ten times the price originally offered. But, whatever the price, it would be much, much less expensive than going through all of the planning and zoning processes throughout our nation and all of the related attorneys’ fees and court costs that the eminent domain process now entails. More importantly, doing away with “takings” via eminent domain would uphold the biblical principle of man’s right to use and enjoy his honestly gotten private property.
We must educate the general public to accept the biblical and constitutionally protected idea that one’s private property is safe from the coercive grasp of lustful civil rulers.
4. There is little doubt that we will be cursed with having to continue to endure such unconstitutional rulings of the Supreme Court cabal as we have witnessed over the years, if the American public remains as disgustingly submissive as they have been conditioned to be through generations of tax-supported mis-education and mental conditioning by the law profession, the news media, and entrenched “public servants.” This raises the dire need (and this is radical thinking which cuts to the quick of the matter!) to install a much needed safety valve to relieve the growing pressure that is being generated by Court judges who view themselves as too imperious to limit themselves to the clear meaning of the United States Constitution.
And what is this much-needed “safety valve?” We need to establish a “Super Supreme Court” which will have the authority to negate any ruling of the regular Supreme Court deemed to be unwarranted by the original intent of the Constitution. I would recommend that this Super-Supreme Court be made up of one respected individual appointed by the legislature of each state. What! An “unworkable” panel of 50 overseers? Not at all unworkable in this age of computer technology and instant electronic communication! Members of this oversight court could have no need to move to or even go to Washington, D.C. They could continue their employment in their home state and communicate with each other by phone and e-mail.
But why an oversight Super-Supreme Court appointed by the states? Simple! To give valid historical recognition that our federal government in Washington, D.C., is a creature of the statesestablished by the states through state-level ratifying conventions approved by the politically sovereign people of the states. Through generations of mis-education the American public has been misled to view the various states as subdivisions of our national government (the federal government), and this is absolutely deadly to the original concept of republican government. Our founding fathers abhorred the very word “democracy.” The establishment of a state-appointed, and state financed, Super-Supreme Court would serve better than any other vehicle today to reclaim the very essence of Americanism in civil government by reinstituting the concept that our civil rulers are indeed “public servants” rather than our imperious masters.
The true patriot therefore, will enquire into the causes of the fears and jealousies of his countrymen; and if he finds they are not groundless, he will be far from endeavoring to allay or stifle them: On the contrary, constrain’d by the Amor Patrie, and from public views, he will by all proper means in his power foment and cherish them: He will, as far as he is able, keep the attention of his fellow citizens awake to their grievances; and not suffer them to be at rest, till the causes of their just complaints are removed. . . . But the true patriot, will constantly be jealous of those very men: Knowing that power, especially in times of corruption, makes men wanton; that it intoxicates the mind; and unless those with whom it is entrusted, are carefully watched, such is the weakness or the perverseness of human nature, they will be apt to domineer over the people, instead of governing them, according to the known laws of the state, to which alone they have submitted. If he finds, upon the best enquiry, the want of ability or integrity; that is, and ignorance of, or a disposition to depart from, the constitution, which is the measure and rule of government & submission, he will point them out, and loudly proclaim them: He will stir up the people, incessantly to complain of such men, till they are either reform’d, or remov’d from that sacred trust, which it is dangerous for them any longer to hold. [Emphasis as per original.] (Samuel Adams, Essay in Boston Gazette, 1771. Source: Hamilton Hebert Long, Your American Yardstick, Philadelphia, Your Heritage Books, Inc., 1963, ix.)
Related article:
A JUDICIARY CALL TO ARMS PART I – THE POWER OF EMINENT DOMAIN
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