For quite some time now I’ve had the desire to write something in depth about the Judicial Branch of our government; or the Supreme Court. I attempted a shorter piece awhile back, but it didn’t go into the kind of detail that I had wanted; primarily because I felt a serious discussion of the Judiciary was out of my league; that I didn’t think I was qualified enough to delve into the subject matter with any degree of accuracy. That hasn’t changed much, at least not enough to move me up into the expert category; but nonetheless I’m going to give it a shot and see how things turn out.
How many of you have ever been inside a courtroom? It doesn’t matter if you were there for jury duty or as the defendant or plaintiff in a civil or criminal case; I just want to know how many of you have been inside a courtroom for one reason or another. A courtroom is just that, a room, with four walls, some doors, and seats arranged in a manner that allows for the judge, the prosecution, the defense, the witnesses, and the audience to be seated in such a way so that the legal process can determine the facts in a case and a decision be rendered regarding guilt or innocence.
If you’ve been inside a courtroom you’ll recall how, when the judge enters, those inside are all asked to rise and remain standing until the judge tells them to be seated. You’ll also recall how the judge is typically addressed as ‘Your Honor.’ The courtroom, or to use a more accurate description, courts of law, are the domain of judges; and for all intents and purposes, inside those courtrooms the judge is god.
What role does a judge serve that elevates them to such a position of high esteem and regard? Aren’t we all created equal? So why does a judge deserve to be called ‘Your Honor?’ I believe some decorum and respect should be present in a courtroom, but if you ask me, a simple sir or ma’am would be sufficient; not a title such as ‘Your Honor.’
Have you ever given any thought to the meaning of the word honor? I have. Honor, as it applies to judges, refers to their position of respect or authority. However, honor can also mean a keen sense of ethical conduct, or integrity. I might be alone in feeling this way, but if a judge does not have any integrity, or respect for fundamental law and rights, then they don’t deserve to be called by the title ‘Your Honor’; as far as I’m concerned they have no honor themselves.
What does it take to become a judge; can you or I simply apply for, or run for the position in an election? The requirement in most states for becoming a judge are that the person first obtain an undergraduate degree in college, then go to law school where they obtain a degree in law; or Juris Doctor. After that they must pass the Bar Exam; which means they become accredited to practice law inside a courtroom. Then, before they can become a judge, they are typically required to obtain a certain amount of practical courtroom experience in the prosecuting or defense of cases inside a courtroom. Then they can either run, or be appointed as a judge; upon which they must undergo some form of judgeship training; meaning they must be taught the responsibilities of a judge, and how they are to act while carrying out that role; (No mention of how they must act in their private lives though).
I can’t speak for the course curriculum for a degree in law; I don’t think I have either the mind or the stomach to even attempt to obtain such a degree. I have heard though that a large part of a law degree is focused on what is called precedential law; or stare decisis. Precedential law, from my understanding of it, is not a study of the law itself; its intent and meaning; rather it is a study of how that law has been interpreted by previous judges which therefore establishes a precedent for future questions regarding the law in question.
How many of you have watched any TV shows that showed courtroom proceedings? It doesn’t matter if it was old episodes of Perry Mason or current episodes of Law & Order; any courtroom drama will suffice. If you have, you may have heard the TV judge say something along the lines of, “It is the opinion of this court…” What exactly does that mean, what is the significance of those seven words?
Above all else, a judge is an agent of, or representative for a system; a system that is supposedly designed to provide justice to all those who enter its domain and jurisdiction. So when a judge declares that it is the opinion of the court, they are saying that it is the opinion of the SYSTEM that whatever they say is truth, fact, and incontrovertible. If I were to say, “It is my opinion that you are an idiot” that could be challenged and argued against. However, if a judge says that it is the opinion of the court, then that cannot be argued inside the courtroom; it is final. That opinion can be appealed, but that is a process that takes place outside the courtroom; and until the case is re-heard in an appellate court, that opinion stands as the final say in the matter. That is the power wielded by judges; a power that should strike fear into the hearts of those who think that no man is superior to them; that we are all created equal.
All that being said; I think we can all agree that it takes a lot of work and study to become a judge, right? Did you know that under the Constitution there are no such requirements to become a Supreme Court Justice? Article 1 of the Constitution, (which refers to the Legislative Branch), has clearly established requirements for those serving in either the House of Representatives or the Senate. Article 2 of the Constitution, (which refers to the Executive, or presidency), also has clearly defined requirements for those seeking that office. But the Judicial branch has no such requirements in the Constitution; meaning that technically, anyone could be nominated to a position on the SCOTUS.
Think about that for a moment; the highest court in the land, whose word is supposedly the final say in all legal matters, and under the Constitution there is no requirement that any of those serving must first obtain any kind of degree in law. It doesn’t surprise me, not really; for some of the rulings the SCOTUS has handed down show that they don’t have the same understanding of law as I do; but then again I’m just a dolt, right; someone who doesn’t know their ass from a hole in the ground, (one of the phrases my dad used to use to describe me).
Have you ever read the Constitution? I’m not asking if you’ve studied it, just if you’ve read the document itself. Article 1, which outlines the Legislative Branch, contains 2,268 words. Article 2, which outlines the Executive Branch, contains only half that, 1,025 words. Do you want to know how many words are in Article 3, which outline the Judicial Branch? There are only 375 words in Article 3 of the Constitution; and not a single one of them establishes any requirements for those serving in that branch of our government. That is absolutely mind boggling to me!
I know most of you have not studied history, at least not to the extent that me and some of my closest friends have; so I’ll share with you a bit of what I’ve learned. After the Constitution was ratified, and the government went into effect, two of the very first things our 1st Congress did was to impose a tax, and to re-write Article 3 of the Constitution. So, the very first things this government did was, it imposed a tax upon us, and then drastically expanded the power and scope of the Judicial Branch of government.
So, within 3 months of going into effect, the Congress, and George Washington, who signed the Judiciary Act into law, wasted no time whatsoever in dramatically increasing the power held by the federal government.
Have you ever read the Judiciary Act of 1789? Of course you haven’t, but I have a copy of it if you are interested in doing so. If you recall, Article 3 of the Constitution only had 375 words in it. The Judiciary Act, on the other hand, has over 8,500 words in it. That’s twice as many words as are found in the entire Constitution; which has 4,543 words. Think about that, a law passed by Congress regarding the powers given to the Judicial Branch is twice as long as the law passed by the people giving the entire government ALL of its powers.
I won’t bore you with too many details from the Judiciary Act; let it be enough to say that it established Circuit and District Courts inside the States, and it created the position of Attorney General for the federal government; which has grown to become the head of the law enforcement division of our government, with the DEA, BATF, FBI, and numerous other agencies all falling under the jurisdiction of the Attorney General.
Now if you recall, Waco, Ruby Ridge, the Bundy Standoff, and the murder of LaVoy Finicum were all carried out by agents working under the authority and blessings of the Attorney General; so keep that in mind when you consider who the Attorney Generals serves and represents. And all that became possible due to the fact that the 1st Congress wrote, and George Washington signed into law the Judiciary Act of 1789. See, I told you our government began usurping power almost from the moment it went into operation!
For the moment, I’m not going to say whether I believe it is one thing or the other, (I’ll leave that up to you to decide for yourself), but is it the job of the Supreme Court to apply the laws passed in pursuance of the Constitution, (see Article 6), or is it the job of the Supreme Court to determine whether the laws passed in pursuance of the Constitution are, in fact, constitutional?
You may not be aware of this, but there are two kinds of trials that can be heard in a courtroom; a trial by jury and a bench trial in which the judge renders a decision without having a jury serve that function. Although it consists of more than one judge, or Justices, the Supreme Court is a bench trial in that there is no jury to render a decision; that decision is based upon how the majority of the Justices vote on the cases they choose to hear.
I’m not that familiar with the actual process of how the SCOTUS decides which cases they will hear, but I do know that they make a decision to hear certain cases, and then lawyers for both sides prepare legal briefs for the Justices to read; stating their justification for their arguments on whichever side of the issue may be. The Justices then read these briefs, and any other reference material pertaining to the case in question; along with whatever precedents may have been established by previous SCOTUS sessions, and then they debate amongst each other, when they finally vote on the matter; with a majority of the Justices forming the ‘opinion’ of the court.
If I’m wrong in any of that, I would hope that someone would please correct me; for as I said at the very beginning, I don’t feel I’m overly qualified to be writing about this subject in the first place.
The point I’m trying to work towards is that the Supreme Court exists to hear matters of a constitutional nature; meaning all questions on law falling under the purview of the Constitution. Prior to the adoption of the Constitution there were already courts in existence to hear matters of a legal nature in the separate and independent States. The Constitution established the federal Judiciary to hear questions regarding laws that pertain to, well, I’ll just let Article 3 speak for itself:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
I may, or may not be splitting hairs, but nowhere in that description does it say that the judicial power extends to determining whether any law passed by Congress is constitutional or not. Now, as the Constitution IS the supreme law of the land, I can see how the SCOTUS might be called upon to determine if a State law may run counter to the prohibitions imposed upon that State by the Constitution, and declare that the State law is unconstitutional, (but that can be taken to extremes, and quite often is), but do determine whether the laws enacted by the federal government itself are constitutional or not is, in my opinion, beyond the jurisdiction of the Court.
Yet they do it … all the time. A recent example is their opinion on the constitutionality of the Affordable Care Act; otherwise known as Obamacare. The SCOTUS also overreached its authority in other areas, such as when it halted the recount of votes in the State of Florida during the Bush/Gore election of 2000; which quite possibly have seen Al Gore become the president instead of George W. Bush.
Let me ask you something. Isn’t the Supreme Court part of the federal government? As part of the federal government, how can the Court decide whether or not the actions of another branch of that government are constitutional or not? Isn’t that a conflict of interest; one branch of the government deciding how much power the government, overall, shall be allowed to exercise?
Well geez Neal, if the Supreme Court can’t decide whether a law passed by Congress is constitutional or not, who can? I’m both glad and saddened that you ask. I’m glad because it allows me the opportunity to provide you with why I think it is not within the authority of the SCOTUS to do so, but saddened that you aren’t capable of figuring out the answer for yourselves.
How did this government come into being; did it just up and create itself? No, what happened is that a group of men got together and drafted a constitution, which was then submitted to the people; acting as agents of their respective States, who then debated on whether or not to adopt the proposed system of government. It was by the authority of these State citizens that the Constitution was given life, and our government came into existence.
In 1840 a Supreme Court Justice, Abel Upshur posed that exact question in a book I think everyone should try to read, “The federal government is the creature of the states. It is not a party to the Constitution, but the result of it ―the creation of that agreement which was made by the states as parties. It is a mere agent, entrusted with limited powers for certain specific objects; which powers and objects are enumerated in the Constitution. Shall the agent be permitted to judge the extent of his own powers, without reference to his constituents?”
Yet the Supreme Court not only routinely determines whether a law passed by Congress meets Constitutional Muster, it is what the people expect it to do; hoping that it delivers an opinion in favor of their political party leanings rather than on the side of justice. This is all due to the principle of Judicial Review; the concept that legislative or executive actions are subject to the jurisdiction and opinion of the Judicial Branch.
Judicial Review was established as a legal precedent, (there’s that word again), by the Supreme Court in the case of Marbury v Madison in 1803. Whether you agree or disagree with the concept of Judicial Review, I ‘d like you to think about the implications of what the SCOTUS did when they delivered their opinion in Marbury v Madison. I’ll explain it for you, but it may take a moment to set the stage for my thoughts on that disastrous decision by the Court.
We gave the government life when we chose to ratify the Constitution. The Constitution is a legal document, outlining a system of government and giving each branch of that government certain specific powers. The ONLY way any changes can be made to the balance of powers between the branches, or to expand the powers of one particular branch is by the amendment process, found in Article 5 of the Constitution.
If you’re familiar with Article 5 you’ll recall that for any changes to be made to the Constitution they must first be adopted by a 3/4 vote of the States; those who breathed life into the Constitution in the first place.
So how, in the name of sweet Jesus, did the Supreme Court justify their granting themselves the power to decide whether or not another branch of the government was acting in accordance to the powers granted them by the Constitution?
In his correspondence to Abigail Adams, Thomas Jefferson discusses his thoughts on that very concept, “Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for themselves The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
In a letter to Judge Spencer Roane, Jefferson also writes, “Our Constitution . . . intending to establish three departments, co-ordinate and independent that they might check and balance one another, it has given—according to this opinion to one of them alone the right to prescribe rules for the government of others; and to that one, too, which is unelected by and independent of the nation. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
Yet that is exactly what the Supreme Court has done, by its opinions and then opinions based upon previous opinions, they have twisted and shaped the Constitution into any form they pleased; all because they are considered as both the final arbiters in all questions of a constitutional nature, and the sole presiding authority in determining whether the act of a body, (which they are a part of) is acting in accordance to the limits imposed upon it. That’s akin to letting the fox guard the henhouse, if you ask me.
So Neal, if the Supreme Court can’t do that, then who can? [Knock, knock, anyone home?] I would think that after all the months, or maybe years of my writing on this, you’d be able to come up with the answer yourself. I guess that the public indoctrination centers known as schools have done their evil work well, for you are unable to think for yourselves anymore.
The answer is simple, those who created government can decide when government is guilty of violating, or infracting the powers delegated to it. The States, acting through the citizens living within them, chose to adopt a system of government based upon what they had been promised would be the powers that government would exercise. Therefore, if the government fails to restrain itself to those specific, or promised, powers, then those who created government are fully capable of deciding for themselves whether or not to obey the laws enacted by the federal government.
Again, quoting from Jefferson, we find this concept explained far better than I could ever explain it, “Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government . . . . and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force. . . . that the government created by this compact [the Constitution for the United States] was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; . . . . that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; . . . and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorised by the Constitution, shall be exercised within their respective territories.” (Source: Kentucky Resolutions, 1798)
Returning to Abel Upshur and his book A Brief Enquiry into the True Nature and Character of our Federal Government, we read, “If such a rule should prevail in regard to government, a written constitution would be the idlest thing imaginable. It would afford no barrier against the usurpations of the government, and no security for the rights and liberties of the people. If then the federal government has no authority to judge, in the last resort, of the extent of its own powers, with what propriety can it be said that a single department of that government may do so?”
If the Constitution is a compact or a charter between sovereign and independent States, establishing a system of government for themselves, doesn’t it make sense that the States should be the sole deciders of whether the actions of that government are within their constitutionally delegated authority; and not a single branch of that government?
One more quote from Abel Upshur, and then I’ll wrap this all up for you, “Sovereign nations do not ask their judges what their rights are, nor do they limit their powers by judicial precedents. Still less do they entrust these important subjects to judicial tribunals not their own, and, least of all, to the tribunals of that power against which their own power is asserted. It would have been a gross inconsistency in the states of our union to do this, since they have shown, in every part of their compact with one another, the most jealous care of their separate sovereignty and independence.”
If you think about it, it all boils down to sovereignty; who has it, and what we can do when those we delegate power to abuse it to the detriment of our rights and liberty. If we, as individuals, are in fact the true sovereigns, then all political authority flows uphill from us; being but delegated power; which, in a truly free country, is ALWAYS subject to recall or revocation.
If we allow a panel of judges to decide whether or not the actions of a government, of which they are a part of, to decide whether or not the laws passed by that government are within the confines of the powers delegated to government, we may as well hand the government a blank check; saying, “Here, do whatever you want, for the Constitution means nothing to us.”
If the federal government, (and this includes the Supreme Court), exceeds its constitutional authority, and if a people are truly free, or at least love freedom, then they would abolish that system of government; not support it and vote for those who will hold positions within it.
If a people were truly free, or, at least loved freedom, they would vote for State Legislators who would oppose unconstitutional infringements upon those powers that were reserved to the States, or the people. (See the 10th Amendment). If their State Legislators refused to do so, or joined in with the federal government in abolishing their rights and liberty, then they would abolish those systems as well, not support them and vote for whom would hold positions within them.
If people were truly free they would know what their rights were, and what liberty was, and they wouldn’t need government, judges, or police to tell them what they are; and they would not sit back and allow their government to trample all over them.
It’s as Thomas Paine said in his book Common Sense, “Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer.”
Government, even under that lousy document called the Constitution, would be tolerable if it stuck to the few powers found within that document. But government has not stuck to those powers, it has expanded them beyond belief; and a great deal of that expansion has come either by the precedents established by the Supreme Court, or with their blessings.
So, with that in mind, who do those assholes think they are, playing with my rights and liberty like that. I’m supposed to honor them and respect them and their ‘opinions’? Screw that; screw them, and screw their opinions. If they want to hold me in contempt, fine; for that’s how I hold them; in contempt of my rights and my liberty.
As Etienne De La Boetie says in his book The Politics of Obedience, “As for me, I truly believe I am right, since there is nothing so contrary to a generous and loving God as tyranny — I believe He has reserved, in a separate spot in Hell, some very special punishment for tyrants and their accomplices.”
I just hope they find their way to it soon; may they rot in hell for what they’ve done to this country!