In my opinion, We the People are living under a flawed Constitution. The federal judiciary from the lower courts to the Supreme Court is the only branch of the federal government that is unrestricted by effective constitutional checks and balances. The lack of provisions for the legislative and executive branches of the federal government to override or veto Federal Court decisions constitutes a flaw in our Constitution. We the People and the executive and legislative branches are at the unchecked mercy of the federal judiciary. Similar situations occur regarding most of the high courts of the 50 states. Both state and federal courts have over ruled the votes of We the People regarding both referenda and state constitutional amendments. With increasing frequency over at last 100 years or more, our courts disregard the original intent or manifest tenor of Constitutions. These courts value court precedents and current cultural mores over the words, phraseology and construction, original intent or manifest tenor of the Constitutions or sections of the Constitutions involved. The absence of meaningful checks and balances on judiciary rulings demonstrates that we have a flawed Constitution. One argument for an unrestrained court system is to protect We the People from the tyranny of the majority. It seems to me, however, that the system currently constitutes the tyranny of the minority over We the People. Courts at all levels use legal precedents and current cultural mores to pick winners and losers regardless of what their respective Constitutions might say.
The Establishment Clause of Amendment I of the Constitution is only 16 words long. It has an establishment phrase, and a free exercise phrase. Supreme Court decisions regarding the place of religion in our society disregard the free exercise phrase. The Establishment Clause states, Congress shall make no law respecting an establishment of religion, or the free exercise (of religion) thereof . These decisions misuse the wall of separation, phrase found nowhere in the Constitution, taken from a letter to the Danbury Baptists of Connecticut written by Thomas Jefferson. In these types of decisions, the courts conveniently forget that Amendment I also prohibits laws, or court decisions, that restrict the free exercise (of religion) thereof…. Another example of our flawed Constitution is a group of decisions by our courts which disregard the manifest tenor and original intent of the Constitution involved eminent domain.
The lack of Supreme Court checks and balances resulting in our flawed Constitution was debated during the ratification process of the Constitution. The opponents to ratification, known as Anti-federalists, agreed that the federal courts would have the power to declare statutes unconstitutional, but were concerned that this would give the federal courts too much power and endanger the freedom of We the People. Robert Yates pointed out the fact that we would have a flawed Constitution if ratified as written when he argued:
“The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void.”
Thomas Jefferson, third President of the United States, agreed with the Anti-federalists. After the landmark Marbury v. Madison decision, giving the Supreme Court authority to rule on the constitutionality of laws enacted by the legislative and signed by the executive branches. Jefferson disagreed with Marshall on four separate occasions. In 1815, Jefferson wrote to W. H. Torrance:
“The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.”
In an 1819 letter to Spencer Roane, Jefferson wrote,
“In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that ‘the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.’ If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate 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 the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it (Constitution) has provided is not even a scare-crow . . . 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.”
Similarly, Jefferson wrote an 1820 letter to William C. Jarvis stating,
“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
Finally, in 1825 Jefferson wrote a letter to Edward Livingston where he stated,
“This member of the Government (Supreme Court) was at first considered as the most harmless and helpless of all its organs (branches). But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”
Jefferson was convinced that we have a flawed Constitution.
Abraham Lincoln expressed similar concerns about the potential for a flawed Constitution in his First Inaugural Address as follows:
I do not forget the position, assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding. At the same time, the candid citizen must confess that if the policy of the Government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”
Since the early 1900s, judicial activism, failure to make decisions regarding the constitutionality of law based on original intent and the manifest tenor of the Constitution, has become more and more common. Consequently, the dire warnings cited above by Robert Yates, Thomas Jefferson, and Abraham Lincoln, were quite prophetic. We have a flawed Constitution.
Impeachment of federal judges is the only constitutional means for the legislative branch to exert checks and balances over the federal judiciary. In 1819, Jefferson described the impeachment remedy as follows:
For experience has already shown that the impeachment it (the Constitution) has provided is not even a scarecrow The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shift into any shape they please.
Therefore, the opinions of both federal judges at all levels and state judges demonstrate that the Constitutions are a mere thing of wax in the hands of the judiciary, which they may twist and shift into any shape they please. Jefferson’s assessment of this check and balance on the judiciary accurately describes the behavior of our courts for at least the last 50 to 100 years demonstrating the nature of our flowed Constitution.
The main reason for this problem is that impeachment of judges is even more complicated than impeachment of other civil officers. The Constitution defines impeachment in Article II, Section 4, which states, The president, vice-president, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. The terms of service for the President, Vice President, Senators and Representatives are limited and specified by the Constitution. In contrast, federal judges serve for life as described in Article III, Section 1, of the Constitution which states,
The judicial power of the United States shall be vested in one supreme court and in such inferior courts as the congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior.
This Article adds the qualification during good behavior not used in either Article 1 or Article II of the Constitution which describe the qualifications and terms of service for the legislative and executive branches. The critical question regarding impeachment of federal judges hinges on the meaning of during good behavior. The Constitution provides no insight into this question. However, The Federalist Papers contain lengthy discussions of this matter exerted below. In The Federalist No. 78 Alexander Hamilton wrote,
Judges who may be appointed by the United States are to hold their offices during good behavior, which is certainly one of the most valuable of modern improvements in the practice of government. In a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient to secure a steady, upright and impartial administration of the laws.
The judiciary will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. The judiciary… has no influence over either the sward or the purse.
The complete independence of the courts is essential in a limited constitution. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Every act of a delegated authority (including decisions of the judiciary), contrary to the tenor of the commission under which it is exercised, is void.
Consequently, good behavior, described in Article III, Section 1, is court decisions that reflect the manifest tenor of the constitution. When judges make decisions contrary to the manifest tenor of the constitution, they should be impeached under this concept of checks and balances on the power of the judiciary. Following this reasoning, such decisions would be included in the impeachable category of high crimes and misdemeanors. They are crimes against the will of WE THE PEOPLE expressed in the Constitution and the Amendments ratified by WE THE PEOPLE.
Defining the phrase, manifest tenor of the Constitution, is critical to answering the question, Is our Constitution flawed? The phrase manifest tenor has two parts. Manifest describes the detailed organization or construction and grammar of the Constitution. Manifest also includes the words (as defined at the time the Constitution was written), phrases, clauses (both dependent and independent), sentences, and paragraphs of each Article and Section of the Constitution. The order of appearance of words, phrases, clauses, etc. are relevant in discussions of the relationship between the meaning of manifest and the original intent of the Constitution. Tenor refers to the principle train of thought or idea that runs through each section and article of the Constitution.
During the process of ratifying the Constitution, both the Federalist and Anti-federalist often based their discussions on whether a clause of phrase in a particular part of the proposed Constitution was independent or dependent based on punctuation, grammar, and tenor of the overall part of the Constitution being debated. The Constitutional Convention had a committee on form and grammatical construction that presented the final, carefully written, Constitution draft to the Constitutional Convention. The manifest tenor of the Constitution was paramount in the draft they presented for approval.
Hamilton carefully discussed this expansion of impeachable offenses for the Federal Judiciary in The Federalist No. 81. First, he discussed the importance of the language of the Constitution when he wrote,
In the first place, there is not one syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the constitution. I admit however, that the constitution ought to be the standard of construction for the laws, and that whenever there is an evident opposition, the laws ought to give place to the constitution.
Hamilton continued his discussion of impeachment of federal judges in The Federalist No. 81 as follows:
And the inference is greatly fortified by the consideration of the important constitutional check, which the power of instituting impeachments, in one part of the legislative body (House of Representatives), and of determining upon them in the other (Senate), would give to that body upon the members of the judicial department. This alone is complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body (Legislative Branch) entrusted with it, while this body was possessed of the means (impeachment) of punishing their presumption by degrading (removing) them (judges) from their stations (the court).
Throughout the Constitutional history of the United States of America the legislative branch has failed to use the power of impeachment to control judges who do not base their opinions on the manifest tenor of the Constitution.
John Marshall, fourth Chief Justice of the Supreme Court served from 1801 to 1835. His, 1803, opinion in Marbury v. Madison gave the federal judiciary its first taste power over the legislative and executive branches regarding Constitutionality of laws. However, his carefully crafted opinion was strictly based on the manifest tenor of the Constitution. The opinion refers to the Constitution and the law under consideration within the context of manifest tenor of the Constitution.
Exerts from Marshall’s opinion (Marbury v Madison) demonstrating how the manifest tenor of the Constitution impacted his decision follow:
If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body (the legislature). it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction made in the constitution, is form without substance.
It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction.
When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning.
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
(Any other) doctrine would subvert the very foundation of all written constitutions.
It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: ‘I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument (the Constitution) (Italics highlight references to the ‘manifest tenor of the Constitution’).
Marshall pointed to the judge’s oath requiring them to uphold the Constitution; and to the Supremacy Clause of the Constitution, which lists the “Constitution” before the “laws of the United States affirming the importance of the manifest tenor of the Constitution.” Based on Marshall’s analysis, when judicial decisions are not based on the “manifest tenor of the Constitution,” we have a flawed Constitution.
The change in judicial philosophy from the concept that the manifest tenor of the Constitution should dictate judicial opinions, demonstrated by Marshall in Marbury v. Madison, to the concept that precedent, previous judicial opinions, and the changing mores of societal behavior take precedent over the Constitution began in the middle of the nineteenth century. After the Enlightenment, the philosophical, scientific, and psychological works of Marx, Engels, Darwin, and Freud were rapidly embraced by the academic elite in the Western world. By 1870, Harvard University and the Harvard Law School fully embraced these concepts. Contrary to earlier teaching, references to God and Scripture, as well as Constitutional Original Intent were eliminated from legal education and the practice of law. The concept of case law to develop new doctrines and principles incrementally over time was also introduced at Harvard. The rest of the nation’s universities followed suit. John Chipman Gray, summarized the concept by stating,
The law is a living thing with a continuous history, sloughing off the old, taking on the new.
Approximately 50 years later, Oliver Wendell Holmes, Supreme Court Justice from 1902-1932, offered a similar view of the law stating,
[Law is] simply an embodiment of the ends and purposes of society at a given point in its history, beliefs that have triumphed and nothing more.
In the 150 years since this concept was introduced, the Federal and State Courts have been used to alter the Original Intent or manifest tenor of the Constitution, set legal precedents, and overrule the will of We the People and the legislative process. The result is a flawed Constitution.
As a result of the changes in judicial philosophy since Marbury v. Madison, judges at all levels have misrepresented Marbury v. Madison in a way that allows them to ignore the manifest tenor of the Constitution. Current court opinions do not follow the model, for decisions based on the manifest tenor of the Constitution, provided by Marbury v Madison. In my opinion, the modern courts have totally disregarded the fact that Marshall’s opinion was based strictly on the manifest tenor of the Constitution providing little, if any, content that empowers the national courts to construe the laws according to the spirit of the constitution.
Consequently, the judicial branch has gradually increased its power into what some consider an oligarchy. Judges claim to have the ability to construe the spirit of the Constitution when there is not one syllable in the constitution that gives the courts such power. The following Jefferson 1820 warning is relevant:
“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy,
Indeed, Jefferson correctly described the situation in the United States of America today. Jefferson continued, his warning concerning our flawed Constitution,
Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps (the judiciary).
In a 1987 New York Times article titled, “Notes on Bicentennial,” the Bicentennial of the Constitutional Convention, by Stuart Taylor Jr., Taylor quoted Thurgood Marshall from a speech he gave in Hawaii where Marshall said the following:
“I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia convention…. Nor do I find the wisdom, foresight and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, the Civil War and momentous social transformation to attain the system of constitutional government and its respect for the individual freedoms and human rights, we hold as fundamental today.”
Marshall discredited the Framers’ “foresight and sense of justice” when he disregarded the amendment process outlined in Article V as “foresight and sense of justice.” On the contrary, the Framers understood that change was inevitable and provided for a mechanism to update the Constitution. Progressives believe the Constitutional Amendment process is too cumbersome; and judges should just render decisions that change the “law” to match their idea of what “law” should be not what the constitution allows. Marshall’s condescending tone toward the Constitution’s Framers was amplified when he also said “nor would they have accepted… a woman and the descendant of an African slave” as Justices on the Supreme Court. Marshall’s disdain for the text of the Constitution and the the Framers “foresight and sense of justice” is typical for progressive judges at every level in our nation today.
The facts; that we now view judges as liberals, moderates, or conservatives; conduct vehement partisan arguments about conformation of judges in the Senate; and sight the party affiliation of the presidents nominating judges; validate Jefferson’s fears about judges, the federal courts at all levels, and state judicial systems. Indeed, George Washington, the Father of our Country and our first President, shared similar concerns about potential problems related to political parties in his farewell address to the nation.
It is my contention that the concept, of the Constitution, Bill of Rights, and Amendments formulate the basis for governance in our country today, is a modern myth. Rather than holding up a copy of the Constitution claiming it as their guide for governance, politicians should drive a semi-truck full of judicial opinions into the venue where they are speaking, open the trailer doors, and point the piles of paper containing judicial opinions as their basis for governance. Under the current system, precedent, the opinion of judges, new societal mores, and new insights of judges into the meaning of our constitutions and bills of rights are now the basis of the rule of law in the United States of America and all 50 states. The actual constitutions are, in practice, almost meaningless.
The legislative branch of the federal government has failed to utilize the constitutional process of impeachment of federal judges who failed to rule on the constitutionality of law based on the manifest tenor of the Constitution. Unfortunately, the Constitution provides no other remedy to protect We the People from the federal courts in this situation. Solving this problem would require a Constitutional Amendment.
Therefore, it is my opinion that,
“We the people of the United States of America live under a flawed constitution lacking executive or legislative checks or balances on judicial decisions in which judges no longer follow constitutional original intent in their rulings.”
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