The evidence is clear to those of us looking at the evidence from a spiritual perspective. When we eliminate God from our culture and society, we bury our children. We bury our brothers and sisters. We bury our fathers and mothers. We bury our law enforcement officers. The first Chief Justice of our Supreme Court, John Jay, along with most of the Founders clearly stated their sentiment about the importance of Christian precepts to maintain theBlessings of Liberty,Life, Liberty, and the pursuit of Happinessin far less stark terms.
In The Federalist No. 2 John Jay discussed the critical nature of the maintaining our shared ancestry, language, and Judeo-Christian culture and heritage when he wrote,
“Providence has blessed (America) for the delight of its inhabitants. Providence has been pleased to give this one connected country, to one united people, a people descended from the same ancestors, speaking the same language, professing the same religion (Christianity with all its orders and denominations), attached to the same principles of government, very similar in their manners and customs, and who, have nobly established their general Liberty and Independence.”
George Washington, our first President and theFatherof our Country, shared a similar sentiment in hisFarewell Address to the Nationwhere he wrote,
Of all the dispositions and habits, which lead to political prosperity, Religion, and Morality are indispensable supports. “ In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Reason and experience both forbid us to expect, that national morality can prevail in exclusion of religious principle.
Can it be that Providence has not connected the permanent felicity of a Nation with its virtue? The Experiment, at least, is recommended by every sentiment which ennobles human nature. “ Alas! is it rendered impossible by its vices?
œThe Experimentbegan with the Declaration of Independence; suffered and triumphed in the Revolutionary War; perfected its ideals and outline for governance with the Constitution of the United States of America; suffered through the Civil War; won two World Wars, expanded from the Atlantic to the Pacific Oceans, to Alaska, the Hawaiian Islands, and beyond; suffered through the Great Depression; struggled to define and refine the meaning of the Declaration of Independence phrasesall men are created equalto pursueLife, Liberty, and Happiness;and became the greatest nation in history as a result of our shared victories, trials, and tribulations. Our success as a society and nation was based on our common Judeo-Christian heritage and culture, language, political philosophy, and the system of Constitutional capitalism that evolved since colonial days.
It is significant to me that the two men, who were the first to lead two of the three branches of our Constitutional government, the Judicial Branch and the Executive Branch, said that our United States Constitution and our nation was anExperiment. For John Jay, ourExperimentisdoomedif we abandonthe moral precepts of the Christian religionwhich constitute afundamental precept of governanceunder our Constitution. George Washington wrote thatReligion, and Morality are indispensable supportsleading topolitical prosperityincluding personal prosperity and property rights, a solid personal reputation, justice, happiness, and life itself. He wrote thatProvidence (God) connected the permanent felicity (happiness) of (our) Nation with (our) virtue;and ourExperiment (will be) rendered impossible by (our) vices.In other words, both of these Founders observed that when we eliminate God as a significant influence in our culture and nation, thisExperiment,isrendered impossibleordoomed.
In contrast, progressives, most of whom are atheists or agnostics, vehemently disagree with Jay’s pronouncement thatthe moral precepts of the Christian religionconstitute afundamental precept of governance.Progressives have succeeded in their efforts to eliminate God and the influence of Christian precepts in our society and culture. Progressive efforts to eliminate God from societies began in the early 1800’s with intellectual elites in universities throughout Europe. They were most active in the areas of history, economics, political philosophy, philosophy, psychology, sociology, and the liberal arts. Marx postulated that all societies will inevitably evolve into socialists or communist societies where wealth is shared equallyfrom each according to their ability to each according to their need.The concept of social evolution was bolstered by publication of Darwin’s On the Origin of Species which postulated biological evolution. One of the first academic disciplines to fully embrace social evolution which also worked to eliminate God as an influence on their discipline was the study of law. The changes in the academic perception of the Constitution and legal philosophy started around 1870 at the Harvard Law School and spread to law schools throughout the United States.
Prior to this time, jurisprudence in the United States was modeled after British common law and the laws of England. The two most significant commentators on English law were Sir Edward Coke and William Blackstone. Both offered similar views regarding the relationship between Biblical law and the laws of England. Sir Edward Coke wrote about the nature of the human relationship to God in creation as follows:The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction the moral law called also the law of nature.The following statement by Blackstone emphasized the critical relationship between Biblical law,the law of nature,and English law as follows:Upon these two foundations, the law of nature and the law of revelation (The Bible, God’s Word), depend all of human laws; that is to say, no human laws should be suffered to contradict these.
Beginning with the Harvard Law School, the philosophy of jurisprudence in the United States actively began tocontradictthe idea that human laws should reflectthe law of nature and the law of Revelation.The purpose of this teaching and philosophy was to eliminate God and theprecepts of the Christian religionfrom the practice of law. In addition, the idea of social evolution as it related to the Constitution and law was also incorporated into our system of jurisprudence. Under this concept, often calledjudicial activism,as our society and culture changes, the articles, sections, clauses, and phrases of the Constitution should be interpreted in the context of society as it is at the time. Judicial activists maintain that the amendment process outlined in Article V is slow and cumbersome; and judges must mold the words of the Constitution to fit the times. The concept of original intent orthe manifest tenor of the Constitutionis irrelevant under this philosophy of evolutionary jurisprudence.Manifest tenorreflects the definition of the words, when ratified, grammatical construction, and the contextual thought prevailing in each section of the Constitution or law under consideration. Consequently, for judicial activists, precedent and the opinion of judges about the constitutionality of law is more important than themanifest tenoror original intent or the Constitution itself.
As previously noted, academia has been at the forefront of the Marxist, Communist, socialist, progressive, critical theorist, liberal, Democrat efforts to eliminate God andthe moral precepts of the Christian religionas a dominant influence on our society and culture. The vast majority of the professors at our universities teach and promote progressive thought and ideology. Ideologically, progressives achieved aneducational dictatorshipat our universities in the humanities, liberal arts, philosophy, education, social and political sciences, and economics. Since Marxism is “a body of rational norms” that hasbeen largely assimilated into modern social sciences,our students are taught by curricula determined by left’s educational dictatorship. The applicable principles of Marxist philosophy are now taught in each liberal arts and social science discipline. In addition, by the late 1980’s, the educational dictatorship was extended to our public schools where this progressive curriculum has been taught from preschool through the end of high school. With these educational programs, each new generation of citizens becomes more tolerant of and often in favor of a more socialist society in the United States where our children are also taught to rejectthe moral precepts of the Christian religion.
With a judicial system that has worked to eliminate God from its jurisprudence for about 150 years and an educational elite that has embraced Marxist or progressive ideology for over 200 years, ourexperimentis more threatened now than ever before. Over the last 70 years, the United States has rather quickly submitted to progressives who seek to eliminate God as a meaningful influence in our society and culture. The primary target of progressives is Biblical Christianity which stresses the importance of the each individual’s personal relationship to Jesus Christ as their Savior, the traditional family with a father and a mother, personal moral responsibility, and the role of the Christian church in our society. Progressives have succeeded in eliminating prayer and other Christian activities in our schools, government agencies and property, removed displays of the 10 Commandments and other religious displays on public property, promoted a culture of death as it relates to abortion and assisted suicide, and supported sexual promiscuity and moral relativism in relation to most other personal interactions.The moral precepts of the Christian religionare no longer considered to be a fundamental precept of governance.Many Biblical Christians and conservatives fear that our great nationalexperimentisdoomed.Consequently, we bury our children, brothers, sisters, fathers, and mothers. We aredoomedto a cycle of death.
Progressive solutions to the problems plaguing our nation abound. Suggested solutions include gun control, school fortresses, welfare reform, criminal justice reform, healthcare reform, mental health programs, immigration reform, safe zones, diversity training or re-education, ending white privilege, ending our system of capitalism, instituting socialism, free college for everyone, income equality, wealth redistribution, and more federal money for everything imaginable to name a few. In my opinion, virtually every progressive solution is only considering the symptoms of our sick society. The problem we face was clearly stated by our Founders. In the words of George Washington, OurExperiment is it rendered impossible by (our) vices.
As a nation, we have worked hard to eliminate God from our culture and society and ourvices,call themwicked ways,orsin,or just plain evil, abound. Our nationalvicesare our problem; and we need a Healer. He is our God. He sent His Son, Jesus Christ, who is the solution found 2 Chronicles 7:14:
œIf my people, who are called by my name, will humble themselves and pray and seek my face and turn from their wicked ways, then I will hear from heaven and will forgive their sin and will heal their land.
The question is whether or not our nation is willing toturn from (our) wicked waysand once again acknowledge thatthe moral precepts of the Christian religionconstitute afundamental precept of governance.
Our God is waiting for us to humble ourselves and turn back to Him.
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The Constitutional term judicial good Behavior equals opinions based Constitutional original intent.
The Constitutional term judicial good Behavior equals original intent. In my opinion, many Appellate Court and Supreme Court decisions would not be consistent with our nation’s Founders vision of judicial “good behavior.” Consequently, it is critical to ascertain the origin and meaning of the phrase judicial “good Behavior.” To progressives, judicial “good Behavior is activist court decisions that make law when the legislative process cannot, like R v Wade. To conservatives, judicial “good Behavior is judicial decisions based on the “original intent” of the Constitution and the plain meaning of the text of enacted laws. To put this in personal terms, the difference between these two perspectives on judicial “good Behavior” is the differences in the written opinions of Justice Ginsberg and Justice Scalia.
According to Article III, Section 1, the Constitutional term judicial good Behavior equals original intent in relation to term of service. The article states, The Judges shall hold their Offices during ˜good Behavior’.” Good Behavior is not used to describe either the qualifications or term of service for members of Legislative or Executive branches of the national government in Articles I and II of the Constitution, respectively. Unfortunately, the Constitution ds not define good Behavior.
The Federalist Papers, written to support ratification of the Constitution, provide the best available insight into the constitutional Framer’s meaning of good Behavior. In The Federalist No. 78 Alexander Hamilton wrote,
Judges hold their offices during ‘good behavior,’ which is the best expedient to secure a steady, upright and impartial administration of the laws.
The duty (of courts of justice) 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 (Constitution) 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. Manifest tenor is the original intent based on the constitutional text, grammar, textural construction, and the words as defined when the Constitution and Amendments were ratified by We the People. Manifest tenor also refers to the principle train of thought or idea that runs through each article and section of the Constitution.
Hamilton also discouraged judicial activism which seeks to infer original intent regarding the Constitution or laws that extends beyond the actual text and grammatical construction of the documents. In The Federalist No. 81, he wrote,
There is not one syllable in the plan under consideration (Constitution), which directly empowers the national courts to construe the laws according to the spirit of the constitution.
Hamilton went on to write that court rulings that go beyond the manifest tenor of the Constitution would constitute “a series of deliberate usurpations on the authority of the legislature. Finally, Hamilton suggested that rulings outside the manifest tenor of the Constitution should lead to the important constitutional check the power of instituting impeachments, upon the members of the judicial department. 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. Consequently, the Judicial Branch of our national government is an unchecked oligarchy, a flaw in our system, since the Constitution ds not specify any meaningful checks on the decisions of the Federal judiciary.
Additionally, disrespectful judicial rulings that usurp the will of We the People occur when jurists proport an ability to construe the laws according to the spirit of the constitution or craft opinions that are not based on the textural original intent, the manifest tenor of the Constitution and its Amendments. After all, We the People ratified the manifest tenor of each part of the Constitution and its Amendments. Each of the 535 members of the US Congress and the President were elected by We the People. It is the US Congress which passes legislation that becomes law when signed by the President. Consequently, State and Federal laws, and Inferior US Court opinions consistent with the manifest tenor of the Constitution, must be upheld by our courts because they reflect the collective will of We the People. The same is true of Presidential Executive Orders that are consistent with the manifest tenor of the Constitution.
Conversely, The duty (of courts of justice) must be to declare all acts contrary to the ˜manifest tenor of the constitution,’ void. When judicial rulings are not based on the manifest tenor of the Constitution, the offending jurist places their opinion above the collective wisdom of all We the People. This is true whether the opinion is that of an individual judge, a panel of judges, or a nine Justice US Supreme Court ruling, Judicial rulings that give the standing of law to progressive social policies remove the political initiative from We the People giving it to the government agencies or private entities, like Planned Parenthood, adding to Democrat power. When the elected representatives of We the People make laws about social issues, as Conservatives and the Republican Party prefer, power originates with We the People.
In accordance with Article II, Section 2, Paragraph 2 of the Constitution, President Trump has nominated Supreme Court Justices and US Inferior Court Judges that will make decisions based on originalist concepts that include manifest tenor and reject attempts to “construe the laws according to the spirit of the constitution. The Republican Senate has fulfilled its Article II Advice and Consent obligations and confirmed President Trump’s Judicial nominations. Consequently, progressive changes to our society should be decided through the legislative process where We the People, through our elected legislators, will determine what is best for We the People. An unelected Judiciary will no longer rule against the will of We the People. The Democrat Party will lose power; and, through his Judiciary nominations, President Trump and the Republican Senate returned power to We the People.
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A Constitution solution is badly needed by We the People of the United States of America. On Monday July 29, 2024, President Biden proposed sweeping reforms to the Supreme Court of the United States requiring at least two Constitutional Amendments. Apparently, Vice-President Harris and Democrats also support President Biden’s proposal. Neither the current proposal nor “court packing,” increasing the number of SCOTUS members, will repair the flaw in our Constitution. The flaw in our Constitution is that it does not provide meaningful checks or balances on decisions rendered by Federal Judges at every level. For at least the last 100 years, both major political parties, progressives, and conservatives have complained that some federal court decisions were “unconstitutional,” failed to reflect the will of their constituents, or the “people.” Such decisions simply become the “law of the land,” and each side complained. In my opinion, the best solution is a Constitutional Amendment that provides a method to “override” federal court decisions that can be initiated by either the Executive or Legislative branches of our government.
Despite this issue, the Founders of our nation had a profound, providential vision for the future of the United States of America. They based their vision on the fact that the people of this nation shared a common Judeo-Christian heritage. That heritage included a common religion, a common moral and ethical code, a common industrious nature based on the colonization of a new world with new and unknown challenges, and common participation in a successful revolutionary war fought against one of the leading military powers on earth. The faith of the Fathers of this nation in its people allowed them to frame a constitution based on limited government and maximum freedom for the people. Freedom for the people is dependent on shared moral and ethical values, virtue. The Framers demonstrated faith in the governed by their choice of the first three words of the constitution, “We the People.”
THE SCOTUS POWER DEBATE
The lack of Constitutional checks and balances on the Judicial Branch has been debated from the time of ratification debates to modern debates over judicial activism which Constitutional conservative argue requires a Constitution solution. In The Federalist Papers, supporters of the proposed Constitution inferred that judicial decisions consistent with the manifest tenor, context and meaning, of the Constitution is good behavior as a jurist. In The Federalist No. 78 states, Alaxander Hamilton wrote,
Courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void.
In The Federalist No. 81, 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
Justices of the federal judiciary no longer agree with the Father of the Constitution, James Madison, who stated in The Federalist No. 49,
As the people are the only legitimate fountain of power and it is from the people themselves; who, as the grantors of the commission (Constitution), can alone declare its true meaning and enforce its observance.
Finally, in The Federalist No. 81, Hamilton discussed impeachment of Federal judges writing:
And the inference is greatly fortified by the consideration of the important constitutional check (on the Judiciary), which the power of instituting impeachments would give to (the Legislative Branch) upon the members of the judicial department. This alone is complete security. There never can be danger that the judges 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).
The Framers intended that federal judges should rule based on the Manifest Tenor of the Constitution” and its amendments. They further inferred that decisions not adhering to the manifest tenor of the Constitution would not be consistent with good Behavior as a jurist. Finally, they argued that judges issuing rulings outside the manifest tenor of the Constitution should be impeached for their judicial actions. Since Judges have never been impeached for lack of this “good Behavior,” we need a Constitution solution.
In the Anti-Federalist, articles opposed to ratification of the Constitution, Robert Yates argued that the threat of impeachment for rulings outside the manifest tenor of the Constitution” did not provide realistic checks or balances on the Judiciary. President Thomas Jefferson disagreed with the power to rule on the Constitutionality of laws given to the Federal Judiciary by Chief Justice John Marshall’s opinion in Marbury v. Madison. Jefferson wrote,
If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide], and it would place us under the despotism of an oligarchy.
Abraham Lincoln expressed similar concerns in his First Inaugural Address as follows:
The candid citizen must confess that if the policy of the Governmentis to be irrevocably fixed by decisions of the Supreme Courtthe people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal (Supreme Court).As a result, some would say, we live under a dictatorship of the federal judiciary, an oligarchy.”
The debate over the power of the federal judiciary has raged from the Constitutional Convention to this day. Is it time to solve the problem? In my opinion, the time is now.
A CONSTITUTIONAL AMENDMENT PROPOSAL
In the absence of impeachment, the only remedy, or flawed Constitution solution We the People have for an unrestrained Federal Judiciary, is a Constitutional Amendment. The proposed Amendment should allow any member of the United States House of Representatives, the United States Senate, or the President of the United States to introduce legislation that would override any Federal Court decision at either the appellate or Supreme Court level.
The Amendment should have specific procedural guidelines, a reasonable timeline for action, and priority over other legislative activity in both houses of congress. It is my suggestion that this Amendment should include the following procedures. A “judicial decision override” bill, named after the court case in question, such as “Roe v. Wade Override,” would be introduced by a legislator in their house of the legislature. A Presidential “override” bill should be introduced in both houses of congress at the same time. The proposed Amendment must preclude a Senate filibuster at every stage of deliberations and voting. Within five working days of “override” bill introduction, each house of the legislature would conduct a vote, without debate, to start the “override” process which would occur only when both houses agreed to consider the “override.” Next, legislators in each House would have two weeks to prepare testimony for and against the “override.” Preparation of “override” testimony would occur concurrently with other legislative activities. In the next week, proponents and opponents of the “override” from both houses of the legislature would plan their testimony concurrently with other legislative responsibilities. During the next two weeks, testimony for and against the “override” would occur. In the first week, one house would hear testimony from the opposition to the “override” while the other house would hear testimony from supporters of the “override.” In the second week, testimony roles would be reversed in the two houses of the legislature. During the following week, each house would hold floor debates on the “override.” Each house would vote on the “override” at the end of the week of floor debate. If the “override” achieves a simple majority in both houses of the Legislative Branch, the bill would go to the President for signature resulting in a successful federal judicial decision “override.” In the case of a Presidential veto, a two-thirds majority of both houses would overrule the veto resulting in a successful federal judicial decision “override.” The vote to overrule a Presidential veto should occur in both houses of the legislature the first working day after the veto without debate.
One contentious issue related to the proposed Constitutional Amendment is its impact on previous court decisions enacted outside the manifest tenor of the Constitution which many have called Judicial Activism. My suggestion is for the Amendment to establish a joint legislative committee to review previous court decisions. This committee should have a limited time frame for actions, one to three years. Recommendation for Congressional action to reverse standing Federal Court decisions should follow the process described above.
In my opinion, a Constitutional Amendment of this nature is needed since the Federal Courts have shown their disrespect for the will of We the People. Our courts show disrespect by overturning both State Constitutional Amendments and state referenda passed by a majority of We the People in several states. Court decisions also demonstrate disrespect for We the People when they ignore the “manifest tenor of the constitution” ratified by We the People. The proposed Amendment is a true flawed Constitution solution.
I still believe our Constitution is the best ever conceived throughout world history. However, We the People have allowed the Federal Courts to act as an oligarchy for decades. Is it now time to correct its one major flaw? In my opinion,
We need an Amendment providing a flawed Constitution solution!
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An Amendment is a Constitution solution that would control judicial activism.
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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The evidence is clear to those of us looking at the evidence from a spiritual perspective. When we eliminate God from our culture and society, we bury our children. We bury our brothers and sisters. We bury our fathers and mothers. We bury our law enforcement officers. The first Chief Justice of our Supreme Court, John Jay, along with most of the Founders clearly stated their sentiment about the importance of Christian precepts to maintain theBlessings of Liberty,Life, Liberty, and the pursuit of Happinessin far less stark terms.
