“It is emphatically the province and duty of the judicial department to say what the law is. Marbury v. Madison 1803”
Ah, Marbury v. Madison! This historic decision was nothing more than a bold power grab by elitists who were afraid of “too much” democracy. Elite thinking went something like this:
“We can’t count on the House, which is elected by the rabble, nor on the Senate, which can fall under the influence of popularly-elected [read: “rabbly-elected”] state legislatures. But we can count more reliably on a select few men who are aristocratically-inclined [SCOTUS judges], who are appointed for life.”
“Count on what,” you might ask? Count of the ability of a handful of men to nullify inconvenient laws by simply declaring them to be “unconstitutional.” Such a latent resource might come in handy some day. Who knows?
“emphatically the province and duty,” you say?
Nowhere in Article III is it stated that (as it is in Marbury),“… the province and duty of the judicial department [is] to say what the law is.” In fact, it’s not stated at all – emphatically or otherwise.
I read the 375 words of Article III very carefully, since III defines “judicial power,” a block of text which opens with: “The judicial power of the United States…” Somehow, the term “judicial power” got turned into “judicial review” – that is, the right of the Court to review legislation in terms of constitutionality. However, a careful review of Article III, Section 2 undermines that assertion. And I quote:
“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
(Parenthetical Note: Isn’t it odd that SCOTUS doesn’t have original jurisdiction in cases where the United States is a party?)
It might be arguable that SCOTUS could consider constitutionality in cases where it has original jurisdiction. But what about the other cases (far greater in number), in which it has appellate jurisdiction? Here I refer to the part highlighted in yellow, immediately above:
Suppose Congress were to remove all cases from SCOTUS’s appellate jurisdiction, leaving SCOTUS only the power to rule in cases of its original jurisdiction. That could happen by Congress invoking “such exceptions [to SCOTUS appellate jurisdiction], and under such regulations as the Congress shall make.” In fact, to twist the knife even more deeply, Congress could allow appellate jurisdiction while specifically barring SCOTUS from ruling on constitutionality by simply invoking: “under such regulations as the Congress shall make”.
Simply put, Congress has the authority to limit to what degree SCOTUS may exercise its “judicial power.” And why not? Congress was given that power, so why shouldn’t they use it? Judges and Congressmen alike [and the President, of course, without whom laws would be difficult to enact] are bound by oath to “support this Constitution.” Why should the oath of a judge (or his legal opinion) be considered more profound than that of a legislator or the President?
This is what Article VI has to say on the matter:
…The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution…
About this “oath or affirmation” business
Why does Article VI insist that all legislators and judges, at the state and national levels, “…be bound by oath or affirmation, to support this Constitution?” Why does Article II insist that the US President-elect must take an oath/affirmation – specifically worded, by the way – before he can assume his office? Why is the US Constitution so zealously guarded that members of US armed forces are sworn – not to protect and defend the people of this country – but to “support and defend the Constitution of the United States?”
The answer to these questions can be found by referring to the Constitution’s predecessor document – the “Articles of Confederation and perpetual union.”
To begin, nowhere in the Constitution is the term “perpetual union” used..and for good reason. Compare these two quotes – one from each document:
From the Articles of Confederation:
“And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”
From the Constitution:
The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.
The Articles required the permission of “the legislatures of every State” before any of the articles could be changed. But the Constitution, which sought to not only change the Articles but to entirely replace them, could be considered as being ratified with only nine of the thirteen states in agreement – though binding only on those states that ratified.Worst case scenario? Suppose only nine states had ratified the Constitution. That would mean those nine would be governed by the Constitution AND, since the union was to be “in perpetuity,” the Articles (in which perpetual union was an oft-repeated theme), whereas the three holdout states would be governed only by the Articles. So how could a union under the Constitution be deemed “perpetual,” when a coexisting union under the Articles claimed that same status? That’s the historic reason why “perpetual union” isn’t mentioned in the Constitution.
What a mess!
So the authors of the Constitution wanted to ensure that their creation, which was unconstitutional in the “eyes” of the Articles, would never come under a similar assault by those in the future who might wish to generate yet another constitution in replacement. And what better way to ensure loyalty to their instrument than by making officials under its authority swear an oath to it?
Another consideration stems from these words in the Articles: “…it hath pleased the Great Governor of the World [aka, “God”] to incline the hearts of the legislatures we respectively represent in Congress, to approve of, and to authorize us to ratify the said Articles of Confederation and perpetual Union.”
The Articles invoke God, whereas the Constitution does not – not even once is God mentioned. Could you imagine the awkwardness of this statement had this been included in the Constitution:
“…it hath pleased God even more greatly that we have abandoned the Articles which had only pleased (as opposed to ‘greatly pleased’) Him…”
Additional coup-like elements
In a further attempt to cement the authority of our homegrown elite, the First Amendment contains this famous, though universally misunderstood, line:
“Congress shall make no law respecting an establishment of religion…”
If you think of, for instance, the Catholic Church being an example of “an establishment of religion,” the meaning becomes clearer. The Founding Fathers (read: “the Elite”) realized what a gold mine they had on their hands, and they weren’t about to jockey with organized clerics for control over this enterprise.
Then there’s the matter of Article V of the Constitution:
QUOTE:
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, [Congress] 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…
:UNQUOTE.
The first item in green merely states that “[Congress] shall call a convention.” But nowhere does it say how Congress can be compelled by the states to do so if it doesn’t want to. Very clearly, Congress was meant to be in a position to deny the states their right to a convention. The Elite felt it was bad enough that the US House was elected by the rabble, but the state legislatures might be even more greatly under their influence. Congress was meant to have even greater control by being allowed to determine the rules under which such a convention could be held.
The second item in green was meant to give Congress a tool by which it could influence the outcome of the state ratification process. Depending on the zeitgeist and whether Congress wanted a Constitutional Amendment Convention to succeed, it could accordingly select which of the two ratification options the states must follow. Congress could even refuse to choose either method, which would leave the states without any legal means to proceed with ratification.
This abusive Article V was nothing less than a coup against the sovereign imperatives of the individual states.
In conclusion
The point of my essay is to emphasize the early origins, characteristics, and motives underlying the various coups in the United States, hoping to sensitize US citizens to other coups in progress or yet to be foisted upon them.
We were never meant to have an Imperial Presidency. The very idea of a one-man branch of government should be repugnant to all of us in this day and age.
We were never meant to suffer under the tyranny of a Two Party System – a system nowhere mentioned in the Constitution but which is very much the single most dominant force in our lives.
The Courts have entirely too much power and are only available to those who can afford the price of costly counsel. I’m in favor of:
· court decisions being reversible by the elected representatives of the people;
· juries being allowed to render verdicts by 9 to 3 margins;
· allowing the unemployed to undergo a modest training sufficient to allow for competence service on juries – at a livable wage;
· instituting an ombudsman service as an alternative to costly legal representation.
The coups we’ve suffered through and will continue to suffer through are of ancient origin and serve only the purposes of an Elite whose interests oppose those of We-the-People. It’s time to take appropriate action to declare our independence, which starts with taking off the rose-colored glasses through which we view our history.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
Steven Searle for US President in 2012
Founder of The Independent Contractors’ Party
“We’ve been screwed so long, we no longer even notice it.”
Contact me at bpa_cinc@yahoo.com
No comments:
Post a Comment