In my opinion, We the People of the United States of America need a Constitution solution because our Constitution is flawed since it provides no meaningful checks or balances on decisions rendered by Federal Judges. In spite of 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 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. The Federalist No. 78 states,
Courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void.
The Federalist No. 81 states,
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, 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.”
An Amendment is a Constitution solution that would control judicial activism.
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 Senate, or the President to introduce legislation that would overturn any Federal Court decision at either the inferior or Supreme Court level. The legislation would move through the legislative and executive branches like any other legislation. However, the Amendment should provide realistic and specific time constraints including priority scheduling of congressional committee and floor debates. It should require a simple majority in both houses of the Legislative Branch and a Presidential signature to overturn any Federal Court decision. In the case of an executive veto, a two-thirds majority of both houses would overrule the veto. 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.
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. Any recommendation for Congressional action to reverse standing Federal Court decisions should require a 2/3 vote in both houses of the legislature and signature of the president for reversal. .A Presidential veto could be overturned by a second 2/3 vote in both houses of the Legislative Branch.
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?
We need a flawed Constitution solution!
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In my opinion, the left, Marxists, communists, and progressives of the world were not fighting the same Cold War that the United States and our allies were fighting. For the left, the strategic “Cold War”is a philosophical ideological “Cold War.” With this thought and the recent death of Fidel Castro in mind, it seems an appropriate time to consider the place of Fidel Castro, in the world and the nature of the Cold War. After his revolutionaries defeated the Cuban dictator Batista, Castro openly embraced communism. He nationalized the economy of Cuba and sought support from the communist regime in the Union of Soviet Socialist Republics (USSR), the Old Soviet Union, today’s Russia. He brutally eliminated political opposition. With the support of the Soviet Union, Cuba became the center for communist revolutionary expansion into several countries in Latin America. Probably the most notable was Venezuela. The communist dictator of Venezuela nationalized the country’s oil industries which had been developed by North American and European petroleum companies. Cuba allowed the Soviet Union to position nuclear missiles on the island nearly bringing the world to a nuclear disaster before the missiles were removed from Cuba. The fall of the USSR effectively ended Soviet financial support of the Castro regime, and greatly reduced Cuba’s influence in the western hemisphere. From this perspective, Fidel Castro was a central figure in the Cold War in the Americas.
To me, the Cold War was a geopolitical, economic, militaristic contest between the United States and the USSR, the two dominant nuclear powers of the world at the time. These two powers competed to bring allies into their spear of influence throughout the world. The Cold War ended when the United States and our allies were victorious after fall of the USSR. Dismantling the USSR in non-Russian Eastern Europe completed the process. Although the USSR was a totalitarian communist regime, it was not the only totalitarian communist regime in the world. China, North Korea, Vietnam, the communist regimes of the Eastern European Soviet bloc, Cuba, Venezuela and several other countries in Latin America were also totalitarian communist regimes. Without the support of the USSR, Eastern European countries overthrew their communist governments embracing various forms of democracy.
During the height of the Cold War, Nikita Khrushchev, leader of the USSR said, communism will outlast capitalism, not We will bury you!”
However, several powerful totalitarian communism regimes still exist in Asia and Latin America and communist revolutionaries still battle to control countries in some parts of the world. It seems appropriate to ask a question. Did we actually win the Cold War? We certainly did not eliminate totalitarian communist regimes and revolutionaries as a threat and influence in the world. Perhaps a more important question to ask is this. Did we understand the nature of the Cold War from the strategic perspective of our Marxists, communist enemies. In a 1960’s speech at the United Nations, Soviet premier Nikita Khrushchev used a phrase that was translated We will bury you!” A better translation of the phrase is, communism will outlast capitalism. From the standpoint of Marxist philosophy expressed in The Communist Manifesto, Khrushchev’s phrase provides a simple strategic description of the goal of communism or Marxism for the world. Khrushchev was not speaking of a geopolitical, economic, militaristic contest, he was speaking of an evolutionary paced contest of philosophy and ideology, Marxism versus capitalism. Given the attitude of millennials in the United States toward Marxist ideas underpinning communism, socialism, progressivism, and liberalism, or the brutality of totalitarian communist regimes, and their lack of understanding of capitalism and this nation’s Judeo-Christian heritage, we should ask this question. Was Nikita Khrushchev correct when he said, Communism will outlast capitalism?
In my opinion, the Marxist of the socialist, progressive, liberal movement certainly out foxed the conservative capitalistic thinkers of the United States and the world. One of the principal objectives of America’s Crossroads is an informative discussion of the goals and tactics of the left as they seek to convert capitalistic societies, especially the United States, into Marxist societies. Pragmatists of the left have been formulating and slowly teaching and implementing their ideas since the early 1800’s.
When considering the question,is Marxist philosophy the basis for leftist ideology, it is important to understand that Marxist philosophy has been largely integrated into the modern social sciences. Ideas like wealth redistribution, progressive taxation, curtailing or eliminating inheritance rights, diminishing the influence of Biblical Christianity, eliminating or degrading the Biblical family among other topics are all concepts now embedded in liberal arts and social science curricula at all stages of our education system. Competition, individualism, self-confidence, personal responsibility, and strong moral and ethical values are critical elements to successful capitalistic societies. The Biblical Christian church and family are institutions where these values are taught and modeled for children by church leaders and parents. The role of the individual in Biblical Christian culture and Marxist or progressive culture is antithetical in nature. Before a society like the United States with a strong Judeo-Christian heritage and capitalist economy can be converted to society based on Marxist philosophy, the population has to embrace Marxism. To accomplish this goal, the left has achieved an educational dictatorshipwhere their ideas are taught in virtually all the liberal arts and social science curricula throughout the educational system. Marxist progressives have accomplished many of their objectives toward globalism in both domestic and foreign policy in the United States.
Finally, it is my opinion that the left has even managed to integrate its philosophy into jurisprudence in the United States. In the last quarter of the nineteenth century, legal progressives slowly started to substitute case law and the opinion of judges about the Constitution for the manifest tenor and original intent of the Constitution. Chief Justice John Marshall’s opinion in Marbury versus Madison was critical to this evolution in jurisprudence. Consequently, this shift in the Supreme Court’s attitude towards the Constitution exposed a flaw in our Constitution. There are no meaningful constitutional checks or balances on the decisions of the federal judiciary. Marxists and progressives on the left have succeeded in using this flaw to enact laws and regulations that could not be instituted through the legislative process.
Since the people of the United States of America have failed to understand the Cold War from the perspective of the Marxist or the socialists, progressives, and liberals, We the People are close to losing the real Cold War, the philosophical battle between communism or Marxist philosophy and capitalism. The extremely important philosophical or ideological “cold war” is not over; and, in my opinion, capitalism and conservative Judeo-Christianity is losing.
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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 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. 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. 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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Contrary to popular conservative thought, in the United States, our progressive domestic policy is a practical reality. Marxism, the philosophical basis for progressive ideology, is a social theory asserting that all property and wealth will be held in common, and as Marx stated it, from each according to his capacity, to each according to his need, wealth will be distributed equally among all people. The editors of A DICTIONARY OF MARXIST THOUGHT, 1983, asserted that Marxism is not dead; but, Marxism is a body of rational norms that have been largely assimilated into modern social sciences and incorporated into a great deal of our domestic and foreign policy practices.
Pragmatic efforts to hasten evolution toward the global society envisioned by Marxists began in the latter half of the nineteenth century. Following publication of The Communist Manifesto and Origin of Species, the concepts of atheism, and both societal and biological evolution became more widely embraced by academicians in the United States and the world. Liberal and progressive scholars began to dominate the social science faculties of most universities in the United States. This was particularly true in mass communication disciplines such as journalism, liberal arts and social sciences including psychology, psychiatry, sociology, philosophy, performing and visual arts, economics, and law.
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.
In the 150 years since this concept was introduced, the Federal and State Courts have been used to alter the Original Intent of the Constitution, set legal precedents, and overrule the will of We the People, and the legislative process. In many instances, liberals and progressives have used both Federal and State Courts to accomplish their progressive social objectives when We the People do not support their proposals. The United States Supreme Court decision, in favor of same sex-marriage opposed by We the People in numerous state referenda, is a prime example. In my opinion, many Federal Court decisions have been aided by incorrect application of the Supreme Court Marbury v. Madison decision. Court decisions of this type make progressive domestic policy the law of the land. In my view, such decisions are inconsistent with judicial good behavior.
Much of our progressive domestic policy is already Marxist.
In the United States, liberals and progressives in the Democrat Party and moderate or liberal Republicans have introduced and passed legislation, and developed progressive domestic policy positions and programs that individually and collectively quicken the pace at which wealth is spread among all people in our country and eventually the world. The goal is that each state, including the United States of America, eventually withers away. Wars, depressions, recessions, and periods of substantial economic growth cause ebbs and flows in progress toward the world they envision.
The section, of The Communist Manifesto titled Proletarians and Communists, provides strategic details for incremental progressive domestic policy initiatives that gradually eliminate capitalism and private property. Marx wrote,
These measures will of course be different in different countries.
Nevertheless, in the most advanced countries (like the United States) the following will be pretty generally applicable:
“Abolition of property in land and application of all rents of land to public purposes.” (All added parenthetical remarks in this section describe existing progressive domestic policy . Federal regulations, especially environmental regulations, limit uses of private lands regarding mineral and petroleum extraction, forestry, range and grazing management, agricultural practices crop choices and subsidies, and watershed management. Local and state zoning ordinances limit the uses made on private property. Each of these limitations restricts the way private property can be used, increases production costs, and in land uses related to energy, mineral extraction, and agriculture increases fixed living costs for citizens. For some industries, regulation ads costs sufficient to degrade their competitiveness in the global market. When these costs are combined with high US labor costs and taxes, some industries moved offshore to survive. Each of these factors is an incremental step toward abolition of property and use of property for public purposes.)
“A heavy progressive or graduated income tax.”
(In the United States the concept of progressive taxation is now ingrained in our political and economic discourse.)
“Abolition of all right of inheritance.”
(In the United States, gradually increasing death or inheritance taxes are incrementally moving toward abolition of the right of inheritance. The progressive purpose of these taxes is to instill the idea that abolition of all right of inheritance is one of the ways for the rich to pay their fair share in the progressive plan to redistribute wealth from each according to his capacity, to each according to his need.)
“Confiscation of the property of all emigrants and rebels.”
“Centralization of credit in the hands of the State, by means of a national bank with State capital and an exclusive monopoly.”(The United States Federal Reserve Bank controls interest rates, the amount of currency in circulation, and federal laws place strict controls on the banking and securities industries. However, the government does not control the flow of capital with an exclusive government monopoly.)
“Centralization of the means of communication and transport in the hands of the State.”(Many large metropolitan areas in the United States have government owned mass transit train and bus systems. Many politicians are proposing high-speed train systems funded and operated by either state or federal governments.)
“Extension of factories and instruments of production owned by the State; the bringing into cultivation of wasteland, and the improvement of the soil generally in accordance with a common plan.”(Although Federal regulations, especially environmental regulations, do not constitute state ownership of factories and instruments of production they do constitute state control of factories and instruments of production. Air and water pollution regulations often limit the type and/or size of industrial plants built on private property and emission levels for carbon fuel engines. These regulations ensure clean air and water. The issue is that technology allows pollutant detection at increasingly lower contamination levels, and thus, more stringent regulations are mandated, even when the requirements are below safe limits. The result is increased costs that can make the industry products too expensive to be economical. Local and state zoning ordinances limit the uses of factories and instruments of production on private property. For some industries, regulation ads costs sufficient to degrade their competiveness in the global market. When these costs are combined with high US labor costs and taxes, some industries must move offshore to survive. Each of these factors is an incremental step toward abolition of property and use of property for public purposes.)
“Equal liability of all labour. Establishment of industrial armies, especially for agriculture.”(Local, state, and federal minimum wage laws and proposals supporting mandated profit sharing incrementally promote the idea of equal liability of all labour. During the formative years of the labor movement, communists and socialists played major roles organizing workers, gaining recognition and legal status for unions, and securing higher wages and better benefits for union membership. Unions have made great strides toward Equal liability of all labour. The high cost of labor in the United States caused many of our industries to move overseas or fail because they were unable to compete in the global market against competitors with lower labor costs. In the United States, unions have strong support from the political left.)
“Combination of agriculture with manufacturing industries; gradual abolition of the distinction between town and country, by a more equable distribution of the population over the country.”
“Free education for all children in public schools. Abolition of children’s factory labour in its present form. Combination of education with industrial production.” (In the United States, progressives have established an educational dictatorship. Socialists and progressives in the Democrat Party are proposing free or highly subsidized secondary education for all or at least families below a threshold income level. This is an expansion of government-sponsored loan programs and progressive style wealth redistribution. Abolition of children’s factory labor was a goal that should have been supported by all. Children’s factory labor was abhorrent and a blot on capitalism. The fact that Marx added the qualifier, in its present form, is a blot on Marxist philosophy. ).
Free education for all children has been promoted in our country since colonial days. Sound agricultural and renewable natural resource practices have been promoted for at least 150 years. Both are essential for a flourishing, capitalistic, constitutional republic like the United States of America.
The left, regardless of the terms used to describe their ideology, Marxist, communist, socialist, progressive, liberal, moderate Democrat or liberal Republican, follows a specific societal plan to incrementally or evolutionarily change and the world into the global economy envisioned by Marx. The left thinks and plans in evolutionary terms and is secure with an evolutionary pace, at least 170 years, in their journey toward a society where from each according to his capacity, to each according to his need, wealth is distributed among all the people. Once progressive domestic policy normalizes wealth redistribution in most countries, the left will turn to their final goal for foreign policy. The left, Marxists, will turn to formulating policies that cause states or countries, including United States of America, to “wither away.”
