Tag: Supreme Court

NECESSITY OF A WAR DECLARATION ON ISLAMIC TERRORISM

 

A formal war declaration on radical Islamic terrorism is a necessary response to radical Islamic terrorism. Radical Islamic terrorists, Islamists, declared war on Europe, North America, Israel, Christianity, and Judaism shortly after the defeat of the Islamic Ottoman Empire ending WWI. In my opinion, that was a crushing defeat for Islamists and a honest review of the history of Islam demonstrates that radical Islamic terrorism is merely the latest means used in their attempt to conquer the world and establish a worldwide Islamic Caliphate. Without a formal war declaration, we will continue to be limited in our ability to combat this unique enemy. The fact that this would be a war with a theocratic statist ideology, Islamism, which subscribes to the establishment of a worldwide Caliphate governed by Sharia, or Islamic Law, complicates the concept of a war declaration against Radical Islamic Terrorism. Furthermore, a war declaration against an ideology would be, to the best of my knowledge, unique modern in history.

A group of people in front of a man.
A war declaration is necessary since radical Islamic terrorists attack non-combatants.

Although they are Islamists rather than Marxists, radical Islamic terrorists tactics are  similar to the tactics of communist revolutionaries of the Cold War era of the 1950s through the 1980s. Both of these ideologies are statist in nature. Both groups employ stealth attacks on unarmed non-combatant civilians. Local radical Islamic terrorists  are often affiliated with a larger international level groups that can be either Sunni or Shiite in origin. These local groups usually have at least one base of operation in each area for refuge, training, and logistical support. Consequently, relatively small groups or cells of terrorists are scattered throughout the world for eventual attack including the United States. Combating this global radical Islamic terrorism threat requires a war declaration with global reach and flexibility to confront threats wherever they become regionally or existentially dangerous. Our Commander-in-Chief and generals must be able to act quickly and decisively.

Communists and Islamists use covert operators and the internet to target disenfranchised individuals and groups like African-Americans as potential converts for potential covert operations. With the exception of Iran which is an Islamist theocracy, radical Islamic terrorists are not based in or backed by any single alliance of nations or national government. They are financed by private citizens purportedly including members of the some Middle Eastern Royal Families and organizations in numerous countries as well as illegal black market enterprises throughout the world. Their fighters do not normally wear uniforms of any nation, and consider non-combatants as both tools and targets of war, Jihad.

Islamist cells and insurgency groups embedded in countries around the world have two distinct modes of operation, violent Islamic terrorist attacks and peaceful subversion and infiltration of cultures, governments and legal systems of target countries to accomplish a Civilization Jihad. Violent radical Islamic terror attacks are unmistakable and are occurring at greater and greater frequency in target countries. Some are under rather sophisticated command and control of named radical Islamic terrorism groups like ISIS or Al-Qaeda utilizing groups of terrorists involved in planning, logistics, weaponization, and fighting. Other terrorists are unaffiliated or loosely aligned to a major group with little or no support or training. These lone wolf radical Islamic terrorists choose their targets and attack timing independent of specific outside control. They are usually self-radicalized on-line by Islamist publications and videos or follow a radical Islamist Cleric locally or on-line and train themselves with information on weapons and tactics from on-line or underground sources. A small group of two or three self-radicalized Islamist terrorists like the London Bridge terrorists can multiply the damage they inflict.

The Muslim Brotherhood of North America has a plan, adopted in 1987, to take over the United States, and subjugate all its citizens to Sharia law. The plan is called Civilization Jihad. The mission statement of this plan follows:

The process of settlement is a Civilization-Jihadist Process with all the word means. The Ikhwan must understand that their work in America is a kind of grand jihad in eliminating and destroying the Western civilization from within and sabotaging its miserable house by their hands and the hands of the believers (Christians and Jews) so that it is eliminated and Gods religion is made victorious over all other religions.

The plan consists of five phases which could take least 100 years to complete. The phases are summarized below:

Phase One calls for discretion, as operatives arrive in America. They are to keep a low profile ” go about their business and be seen as model citizens, gaining respect within their vocations and communities.

Phase Two requires Muslims to begin to come out of the shadows, gently pushing for recognition of Sharia law within their own communities and sphere of influence, (insisting) that Islam is a religion of peace while co-opting western progressive leaders. Assure these leaders that Sharia will never be applied outside their own communities.

Phase Three When there are enough Muslims in any given city, they begin to penetrate Western society beyond their own communities, i.e. Dearborn and Minneapolis. They build more mosques than needed, funded by foreign entities. They roll out front groups and organizations like CAIR to make it appear that they have more clout and influence than they actually do, (to) pressure politicians and academia for Islamic studies and prayer areas, claiming victimization and demanding accommodations. They are to file lawsuits and cry Islamophobia at every turn, thus wearing down their Western hosts. (The United States and Canada appear to be in this phase of Civilization Jihad.)

Phase Four Muslims, now a significant minority population in the host country insist that Sharia law be woven into the hosts legal and political system. Violence from supposedly independent and disparate radical groups may also be part of Phase Four. (Many Western European countries appear to be at this phase of Civilization Jihad.)

Phase Five Muslims become the majority or ruling minority. All the veils have been pulled back and there is no more pretense of getting along, as they terminate any non-Islamic influence. Sharia law is then imposed nationwide.

This Muslim Brotherhood plan for Civilization Jihad, including the desire to inflict Sharia law on We the People of the United States, must be considered an integral component of any war declaration against radical Islamic terrorism. Civilization Jihad, as outlined, is a war declaration against western civilization, the culture and society of the United States, our Constitution, Judaism, and Christianity.

With this brief discussion of the two components of radical Islamic terrorism in mind, the need for a formal Congressional Declaration of War against Radical Islamic Terrorism demands a thorough discussion. The previous discussion supporting a formal Declaration of War against violent radical Islamic terrorism provides several arguments in favor of this war declaration and suggestions on its implementation. Highlights of the discussion include the fact that no single battlefield, theater of operation, leader, or command structure exists in the war being waged against the United States by radical Islamic terrorists who justify their acts of terrorism by citing passages contained in holy books of Islam claiming to follow the tenants of Islam and teachings of Mohammed. The proposed Declaration of War should strategically define the stages and nature of victory and require that the United States first seek cooperation and permission of the government of countries where these terrorists leaders or bases of operation are located prior to initiating combat operations against terror targets. Congress and the Commander-in-Chief should clearly define the consequences for countries refusing to cooperate in strikes against radical Islamic terrorists located in their countries which should be contained in the Declaration of War against Radical Islamic Terrorism.

Including the significant components of Civilization Jihad in the proposed of war declaration against radical Islamic terrorism has several ramifications and advantages. First, the Center for Security Policy basically states that Civilization Jihad is a declaration of war on civil society in the United States as follows:

America faces in addition to the threat of violent jihad another, even more toxic danger “ a stealthy and pre-violent form of warfare aimed at destroying our constitutional form of democratic government and free society. The Muslim Brotherhood is the prime-mover behind this seditious campaign, which it calls civilization jihad.

Since the Meriam Webster on-line dictionary defines Jihad as a holy war waged on behalf of Islam as a religious duty, the Muslim Brotherhoods Civilization Jihad must be considered as a declaration of holy war waged on behalf of Islam against the Constitution of the United States of America and virtually all of our civil society. Therefore, each component of Civilization Jihad, especially the plan to impose extra Constitutional Sharia law on We the People of the United States must be part of a comprehensive of war declaration on radical Islamic terrorism. Any attempt to impose Sharia law violates Article VI of the Constitution which states,

This Constitution and the Laws of the United states which shall be made in Pursuance thereof; shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives and all executive and Judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Since Civilization Jihad, seeks to impose a form of law, Sharia Law, which is Contrary to the Constitution, the supreme Law of the Land, Civilization Jihad constitutes a stealthy and pre-violent form of warfare aimed at destroying our constitutional form of democratic government and free society. Since Sharia Law judges would have to be followers of Islam, they would be subjected to an unconstitutional religious Test in violation of the clause, no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. This religious Test prohibition does not allow for any exception related to Amendment I of the Constitution. Islamist would contend that Sharia Law is necessary for free exercise of their religion. However, Article VI clearly states, This Constitution and the Laws of the United states shall be the supreme Law of the Land; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Sharia Law qualifies as an extra-constitutional Thing under Article VI. The Muslim Brotherhood and any similar Islamist terror group supporting or conducting acts of violent terrorism, Islamist political party, small group, or individual supporting imposition of Sharia Law within the United States or its Territories or the tactics involved in Civilization Jihad should be designated as enemy combatants in the Declaration of War against radical Islamic terrorism.

In addition, a war declaration against radical Islamic terrorism would allow application of the Constitution of the United States and the several States and the relevant laws regarding treason and sedition committed by citizens and non-citizens within the United States. Article III Section 3 of the Constitution defines treason as follows: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. Consequently, supporting or advocating Civilization Jihad and/or imposition of Sharia Law would be adhering, giving support or loyalty, to our declared enemies and giving them Aid, useful or necessary assistance in achieving an end, and Comfort, strength and hope, which is treason against the Constitution of the United States. Statutes of the United States and individual states would define prosecution of treason following a war declaration  against radical Islamic terrorism and Civilization Jihad.

The Merriam-Webster on-line dictionary defines sedition as, incitement of resistance to or insurrection against lawful authority. Sedition is described in legal terms as follows:

The Sedition Act of 1918 made it a felony (1) to convey false statements interfering with American war efforts; (2) to willfully employ “disloyal, profane, scurrilous, or abusive language” about the U.S. form of government, the Constitution, the flag, or U.S. military or naval forces; or (4) to advocate, teach, defend, or suggest the doing of any such acts. Violations were punishable by fine, imprisonment, or both. The law was aimed at curbing political dissent expressed by socialists, anarchists, pacifists, and certain labor leaders (during WWI).

In Abrams v. United States, 1919, the United States Supreme Court upheld the Sedition Act of 1918, but the descanting opinion of Associate Justice Oliver Wendell Holmes Jr. ensured that only individuals presenting a Clear and Present Danger of immediate criminal activity were convicted. With a Declaration of War against Radical Islamic Terrorism and Civilization Jihad, including advocacy for implementation of Sharia Law, the Sedition Act of 1918 would be applicable regarding both types of terrorists.

In my opinion, radical Islamic terrorism, Civilization Jihad, and Sharia Law represent a Clear and Present Danger to the Constitution of the United States of America, our civil society, and our way of life. Our nation has been under a toxic danger “ a stealthy and pre-violent form of warfare aimed at destroying our constitutional form of democratic government and free society since 1987 if not before. With the rapid acceleration of Islamist activity in the world, especially in the Middle East, North Africa, Europe, and North America, time is of the essence. Drastic measures are necessary to halt the advance of Islamism in the United States and other countries. The Islamists have already succeeded in co-opting western progressive leaders, or Marxists.

We must understand that we are at war with Islamism in all its forms.

We need all the tools that a formal Declaration of War against Radical Islamic Terrorism would provide.

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CHUCKY! WHICH MAINSTREAM?

 

A painting of a waterfall with rocks and trees.
Which mainstream? Mainstream in the United States is a political misnomer. We have at least two: the progressive left and the conservative right mainstreams.

Contrary to the opinion, hopes, dreams, and wishes of progressives and the Democrat Party, the river of political and economic life in the United States of America does not have one monolithic mainstream. The United States of America has at least two distinct and virtually irreconcilable mainstreams or currents. Consequently, no single mainstream exists. The population of the left lives in large population urban centers primarily located along our coasts, the small blue areas in the 2016 county by county Presidential Election map. The left is a philosophically Marxist, socialist, progressive, liberal, Democrat mainstream that believes in a living evolving Constitution. The left cast approximately 2.3% more popular votes for Secretary Clinton in the 2016 Presidential election. The right mainstream covers the vast majority of the nation, the red counties of the 2016 Presidential election map. In the Constitutional Electoral College, voters on the right gave President Trump 306 Electoral votes compared to 234 votes for Secretary Clinton, a 13.3% majority. The right is philosophically conservative supporting capitalism, the importance of our Judeo-Christian heritage, individualism and personal responsibility, Constitutional “original intent,” fiscal conservatism, and limited government.

In discussions of the Federal Judiciary, especially the Supreme Court, only the left makes the statement that the nominee must represent the œmainstream of America. Since no mainstream exists in the river of political life in the United States, the statement by Democrat Senators regarding Judge Neil Gorsuch is nothing more than demagoguery. They need to stop deferring from reality and state truthfully that they would only be satisfied by a Supreme Court Justice nominee who is philosophically Marxist and a judicial activist. It sounds so all inclusive, but the statement includes only the left’s mainstream. Members of the Democrat Party simply need to state their position openly and honestly. We the People, in the “Deplorable Class,” do not like “Establishment Speak.”

Members of the Democrat Party need to understand one thing.
No one political mainstream exists in the United States of America.

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A FLAWED CONSTITUTION SOLUTION

CONSTITUTION SOLUTION CONTENTS

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 Government is to be irrevocably fixed by decisions of the Supreme Court the people will have ceased to be their own rulers, having to that extent practically resigned their government in to 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

A page of the constitution with the words amp;quot; circle iii amp;quot;.

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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SCOTUS: OUR CONSTITUTION’S FLAW

 

A page of the constitution with the words " circle iii ".
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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