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Thursday, March 24, 2011

Federal Imperialism vs State Territorial Sovereignty

For a painfully long time now, our federal masters and their judicial enablers have ignored and, to my way of thinking, flagrantly violated the Constitution with impunity. All too often, Supreme Court rulings have served to override equity, common sense, constitutionality and original intent.

And so long as black-robed, unelected and unaccountable judicial oligarchs, aka judges--as well as the submissive states themselves--allow “judicial supremacy” to trump “constitutional supremacy” on a whole host of consequential constitutional issues, our economic growth will be hobbled, our liberties diminished, state sovereignty degraded, constitutional order imperiled and common sense abandoned.

To wit, per Art 1.8.17 of the Constitution and provisions of the Northwest Ordinance of 1787, and despite a veritable cesspool of clubby, contrived and revisionist court rulings over the years through which I was barely able to wade, it appears glaringly obvious to me that our federal overseers are occupying millions of otherwise productive acres within the several states without the “concurrence” of those states and without constitutional justification.

Article 1.8.17 (“Enclave Clause”) granted power to Congress “to exercise exclusive legislation in all case whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States [i.e the District of Columbia], and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.” Crystal-clear what the original meaning is here despite the shamelessly self-serving litany of subsequent spinmeistering on the part of our judicial overlords, lap dogs of the federal government.

Clearly this clause meant that the people of the states empowered Congress to exercise complete jurisdiction and authority over all lands or facilities purchased within a state, provided it was with the consent of the legislature of that state, and that such lands would be used for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.” Clearly implied in this clause is that the several states, the immediate fiduciary agents of the people, reserve the right to assume title to all lands within their borders which are not being used by the federal government for the specific purposes provided in the clause, that being “the erection of forts, magazines, arsenals, dock yards, and other needful buildings.” It is also important to note that nowhere in the Constitution is the federal government granted the enumerated power of complete jurisdiction and authority over state territory; thus, state retention and ownership of public lands stems from the 10th Amendment which reserves all rights to the states which are not specifically granted to Congress. The twisted and carefully crafted Delphic court rulings notwithstanding, the original meaning seems abundantly clear to me.

Art 4.3.1 allowed a mechanism for the formation and admission of new states into the union, and Art 4.3.2 described the extent of congressional authority over federal territory within those states. Subsequently, the Supreme Court ruled that federal property applies only to the territory at the time of the Constitution's adoption and is considered public land only until that territory is granted statehood and the national debt incurred by the Revolutionary War is paid. In other words, temporary federal control over those lands.

In accordance with the Northwest Ordinance of 1787, which was re-enacted after the Constitution's ratification, all new states were to be admitted to the union on the basis of full equality with the original thirteen states. It was generally understood that as territories were granted statehood, the people of those states would acquire title to all lands within their state boundaries—except, of course, those lands granted to the feds for those well-defined purposes cited in Art 1.8.17.

To help pay down the national debt, Congress assured the states of full title to those lands not used for federally sanctioned purposes when that land was sold off. The following then became the established policy for new states:

1. The feds would retain all ungranted public lands.
2. The feds guaranteed that it would dispose of these lands as soon as possible.
3. The new state would acquire jurisdiction over these lands as fast as they were
sold to private individuals.
4. States would be admitted on the basis of “equal footing” with the original
13 states (each of which retained complete ownership/control over their respective territories.

As a result, all states east of the Mississippi and those comprising the Louisiana Purchase eventually acquired title to all but a very small portion of the land lying within their state boundaries.

However, following our war with Mexico, Congress inexplicably digressed from this policy and virtually eliminated the sale or disposal of federal lands in the western states. This resulted in Congress's retaining major portions of those state lands, this in seemingly direct contravention of the Constitution and of the Northwest Ordinance. Essentially, the federal government became the sole owner and manager of nearly 30%, or a whopping 650 million acres, of America's landmass, for the constitutionally UNspecified purposes of maintaining national forests, national parks, national monuments, Indian reservations, coal and oil reserves, lands leased to farmers and ranchers, and resources-rich so-called “wilderness areas”. And, of course, the cost to taxpayers for maintaining the sprawling federal bureaucracy in order to manage these federally-controlled lands is in the billions of dollars.

Federal defenders of this digression breathlessly point to the so-called "propery clause" (Art 4.3.2) which provides that "Congress shall  have power to dispose of and make any needful rules and regulations respecting the territory or other property belonging to the United States and any territory or property belonging to the United States." Clearly, does this not create a convenient constitutional ambiguity by contradicting the original intent of  Art 1.8.17? Does this not exact restrictions on the western states which had never been imposed on earlier states? So much for states being admitted into the union on "equal footing" and "full equality" with earlier states. Is federal retention of 30% of America's real estate really a "necessary and proper" exercise of federal powers? For me to believe that would require a willful suspension of common sense.

To give you an idea of how much state land is now imperially held by the feds, check this out: NV 85%, AL 70%, UT, 60%, OR 53%, AZ 47%, CA 45%, WY 42%, NM 42%, CO 37%, and poor Alaska 96%! Note: 65% of federal land holdings are located west of the Mississippi and a paltry 1% of all federally controlled land in the country is currently being utilized for those specific purposes cited in Art 1.8.17. One must necessarily wonder why these lands are still being held by the feds? Pay off the Revolutionary War debt? Gee, I don't think so. Lofty, if not entirely contrived, constitutional justifications? Or, more likely, the relentless federal grasp for power and, today, a way to placate a host of environmental allies by denying the states and the country access to those climate warming pollutants such as oil and gas.

Regarding the Enclave Clause, James Madison stated that “the public money expended on such places, and the public property deposited in them, require that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated by requiring the concurrence of the States concerned in every such establishment.” But, have the courts sought the concurrence of the states? Nope.

Clearly, the federal government is occupying millions of acres without the “concurrence” of those states, but maintain their grip with the twisted and self-serving judicial sanction of federal Courts intent upon expanding and strengthening federal power.

So, what is the recourse of the several states? My opinion, which is shared by many other originalists, is that in keeping with the doctrine of state sovereignty, original intent, and the 10th Amendment, states should simply legislatively assume title of all lands not being utilized by the federal government as specified in the Enclave Clause. Of course, to placate the courts and public opinion, states should first sue the federal government to acquire title. And since the states will not prevail in such a lopsided judicial struggle, they should then rightfully and unhesitatingly assert their 10th Amendment rights by immediately assuming direct ownership and control of what I have dubbed those “royal federal reserves” lying within their state boundaries.

But, do the chastened, weak-kneed, heavily bribed and statist-infected states have the backbone to hazard the restoration of their constitutional sovereignty and honor? Ah, yes, that's the burning question.

The constitutional issue aside for a moment, in truth the achievement of energy independence alone should provide ample motivation for the states and their people to step up and take back their land which is illegally held by the feds. And should the states fail to assert their rights under the original constitution, they should quietly accept their bondage and compliantly move on with their drab, submissive lives.

“An injustice unchallenged is justice denied.” Author Unknown

“In the Constitution, the term state most frequently expresses the combined idea...of people, territory and government. A state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.” State of Texas v White (1868)

“Nothing should ever be implied as law which leads to absurd or unjust consequences.” Abraham Lincoln (1861)

Monday, March 7, 2011

"Birthright Citizenship": Is Anyone Reading the Constitution?

Mindful of the litany of revisionist case law since the Constitution's ratification, it is clear that stare decisis is a judicial principle fraught with constitutional perils. Why? One corrupted court ruling inevitably leads to another, compounding the corruption of original intent merely for the shortsighted and self-serving purpose of sanctifying precedent—a surefire judicial recipe for eventually ruling the Constitution out of existence. In this regard, Thomas Jefferson was right when he viewed with horror the growing menace of a runaway Supreme Court which increasingly valued “judicial supremacy” over “constitutional supremacy”.

First off, let me point out that amending the constitution in order to deny automatic citizenship to children of illegal aliens is totally unnecessary. Since the 14th Amendment already very clearly stipulates that children of aliens cannot be legally granted US citizenship on the basis of birth place alone (jus soli), at most a congressional act or a clear-headed, originalist SCOTUS ruling is all that is needed to clarify and restate what the 14th Amendment already clearly says. Original meaning must always trump revisionist case law and interpretations. Otherwise, for what purpose do we have a Constitution?

As said, the inescapable result of judicially ignoring original intent and meaning is to pile corrupted case law atop corrupted case law. To wit, in Plyler v Doe (1967), SCOTUS, relying on the revisionist Wong Kim Ark (1898) opinion and failing to consult the actual meaning of the 14th's “subject to the jurisdiction thereof” wording, ruled that children of illegal aliens who simply reside in a state may be considered to be within the jurisdiction of the US for the purpose of determining their child's citizenship. In effect, Wong Kim Ark and Plyler simply ignored the plain text of the 14th, thus violating their sacred oath to faithfully uphold the Constitution. If nothing else, these rulings readily attest to the inherent corruptibility and unreliability of mere mortals and self-deified jurists in particular.

When fervently invoking Wong Kim Ark, what the birthright adherents fail to tell you—probably because many of them are either honestly ignorant or willfully dismissive of the facts—is that this ruling, made out of whole cloth, arrogantly contradicted Elk v Wilkins (1884) which, in keeping with the 14th, ruled that birthplace alone (jus soli) was insufficient grounds to grant US Citizenship.

The contrived Wong Kim Ark ruling also blatantly ignored the earlier Supreme Court discussion of the 14th Amendment in the Slaughterhouse cases wherein the court noted that “the phrase 'subject to the jurisdiction thereof' was intended to exclude ...children of ministers, consuls, and citizens and subjects of foreign States born within the United States.” Clearly, the Wong Kim Ark majority didn't allow facts to get in their way. Like liberals today, they follow precedent when especially when it suits their ideological predispositions and political agendas.

You may recall that the 14th's framers were painstakingly specific about the meaning of “subject to the jurisdiction thereof”. A quick review of those particular quotes which so many on the left have either deliberately ignored or overlooked clearly shows-- irrefutably--that, unlike the majority opinion in this case, the 14th's framers understood that “subject to the jurisdiction thereof” was synonymous with “not owing allegiance to any foreign power”. The point: you cannot be subject to the jurisdiction of the United States if you are legally subject to the jurisdiction of a foreign power. Duh. But, very briefly, here again is what the 14th's framers actually said:

First, Sec 1992 of US Revised Statutes, the same Congress which adopted the 14th Amendment confirmed that “all persons born in the United States and not subject to any foreign power...are declared to be citizens of the United States.”

Framer Sen. Trumbell noted that the goal of this statute was “to make citizens of everybody born in the US who owe allegiance to the US.” He went on to explain “all persons born in the US, and subject to the jurisdiction thereof, are citizens; this means subject to the complete jurisdiction thereof. And what do we mean by 'complete jurisdiction thereof'? Not owing allegiance to anybody else. That is what it means.”

Sen. Trumbell didn't mince words. He didn't say temporarily or partially within US jurisdiction, but completely within US jurisdiction. With that explanation from a principal framer of the 14th, how then can the most ardent birthright citizenship advocate reasonably and clear-headedly trumpet the merits and judicial reliability of Wong Kim Ark? In truth, the objective and honest among them can't without at least a little embarrassment. But, sadly, that won't stop them from mindlessly railing against birthright citizenship opponents.

Concurring with Trumbell, Sen. Jacob Howard asserted that "the word 'jurisdiction' as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the US, coextensive in all respects with the constitutional power of the US, whether exercised by Congress, the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the US.” Obviously, he wasn't talking about a temporary visitor or illegal entrant with foreign ties.

In 1866, Cong. James Wilson of the House Judiciary Committee asserted “we must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of a foreign government.”

Framer John Bingham said that this statute meant “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of the Constitution itself, a natural-born citizen.” (Finally, a definition of "natural-born citizen".) Clearly, then, the jurisdictional status of the child's parents (jus sanguinis) was every bit as important as the birthplace of the child in determining a child's citizenship. Thus, US citizenship is predicated on BOTH birthplace (jus soli) and parentage (jus sanguinis). Of course, that's clear, but the agenda-driven left just doesn't want to hear of it.

And this: if one's allegiance to the US can be properly determined by birth alone in the US (jus soli), then why do we require legal immigrants to renounce their allegiance to their motherlands for purposes of naturalization? In short, folks, the Wong Kim Ark ruling is not only baffling, it makes absolutely no sense at all!

Also, in the Wong Kim Ark ruling, legally indefensible though it is, shouldn't it be of more than passing interest to note some mysterious wording in that ruling as well?

The ruling: “A child born in the United States, of parent[s] of Chinese descent, who, at the time of
of his birth, are subjects of the Emperor of China, but have a permanent domicile and
residence in the United States, and are there carrying on business, and are not employed
in any diplomatic or official capacity under the Emperor of China, becomes at the time
of his birth a citizen of the United States.”

Huh? So, were they legal permanent residents or did they simply possess a permanent domicile in the US? Talk about gratuitous and enigmatic rulings: like, how many illegal aliens over the years had a permanent domicile/residence in the US while illegally present? Quite a few, I suspect. By what twist of logic does those conditions confer US citizenship on the their children?  Just asking. Frankly, despite a rather exhaustive search I can find no scholarly explanation for this conspicuously incoherent ruling. Upon what previous ruling did the court draw those words? Certainly not from the 14th's framers, and most certainly not from the Constitution's founders! That alone should give our erudite lefty friends at least a modicum of intellectual pause. But, probably not. They apply the law to fit their agendas, and casually ignore that which doesn't advance their political game plan. Heaven forbid should they stoop to seeking original constitutional intent and meaning.

Another point: the court's majority justified their ruling on the basis of English common law. What?!?!? US citizenship law had absolutely broken with English common law tradition after independence (which included the tortured English doctrine of “perpetual allegiance” over which America clashed with Britain in the War of 1812). Sen. Howard clearly explained that the citizenship clause was based upon “natural law and national law”, never in any way alluding to English common law. (Note: from all I have read, E. Vattel's concept of a child inheriting his/her father's citizenship by descent (jus sanguinis), regardless of birthplace, manifestly dominated US legal history after independence, and it was E. Vattel's Law of Nations which so profoundly influenced our founders and the 14th's framers.)

Also, if anyone takes the time to read the dissenting opinions in this grotesque ruling, one would be regaled with thoughtful and scholarly constitutional analysis. But, that's not what the left wants. It wants a solid and burgeoning voter bloc, this to keep their sorry lot in power. But, I do have to ask what possessed the majority in Wong Kim Ark to rule as they did. It certainly wasn't their strong sense of fidelity to the Constitution. Compassion or snuff?

So, in summary, the legality of birthright citizenship is a breathtakingly obvious hoax perpetrated by judicial revisionists and encouraged by stridently vocal ideologically-driven birthright citizenship adherents. At this point, all we can reasonably hope for is a sober and timely SCOTUS review which, hopefully, will do the unthinkable, that being actually upholding the rule of law. Sure hope that's not too much to ask. But, I'm not holding my breath...

“A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge's refusal to consider legislative intent.” Justice John Paul Stevens re the Wong Kim Ark ruling.

"Elastic Clause" Misunderstood

Editorial Published D&C 3/7/11

In a recent letter, the writer, alluding to the constitutionality of "Obamacare", asserted that the so-called "elastic clause" of the Constitution grants the federal government power to do whatever it deems "necessary and proper"--clearly a colossal misunderstanding of our founders' intent.

I suspect this misguided writer also believes that the "supremacy clause" grants unlimited power to the federal government, and that, therefore, executive, judicial and congressional authority "necessarily and properly" trump "constitutional supremacy".

If the writer's assumption that unbridled federal power is somehow constitutionally defensible, then why bother having a Constitution at all? Why don't we all just obediently submit to federal will in all matters and be done with America's noble experiment in constitutional governance?

Obamacare's "individual mandate" is a gross violation of the Commerce Clause, and we continue to tolerate such perversions at our own peril.

Jim Delaney

Thursday, March 3, 2011

A Quick Look at "Original Intent"

Rather than routinely adding more of my opinions to the millions already ignored out there, over the past year I have been slowly diverting more of my focus to better understanding the original meaning of the Constitution, the very pillar of our experiment in republicanism.

As a result of that effort, I have come to appreciate that only with a clearer, uncorrupted understanding of our guiding principles can we more easily distinguish revionist interpretations from those which fully comport with our founders' intent.  

Frankly, since taking this self-help tack, I have, sadly, discovered a mountain of disinformation and misrepresentation in the news media and blogosphere alike.

Some of our own politicians--especially on the left--who have taken the oath to preserve, protect and defend the Constitution are among the worst offenders. Whether it is deliberate or simply born of ignorance, the revisionism emanating from all levels of government and media is truly breathtaking and a serioius threat to our Republic.

To help me see through these countless misrepresentations of our Constitution, I've taken the time to research and to briefly write about the “Commerce Clause”, “Necessary and Proper Clause”, the “Supremacy Clause”, the 2nd and 10th Amendments, Term Limits and Judicial Review. Tackling these intensely interesting topics has broadened my understanding of our founders' intent and meaning and has, I believe, made me a more responsible and critically thinking citizen. Though it's only a start, I have at least now been able to delight in making it harder for revisionists--on the left and the right--to get away with their arrogant misrepresentations with impunity.

This time, I'm very briefly tackling the principle of “original intent”, what it means and how we determine what it is. Caution:  this is only introductory and most certainly not intended to be a comprehensive treatment of the subject. But, like I said, it's a start, and I hope it's helpful to the reader as well.

As noted in previous posts, the principle of “judicial review” has long ago given way to “judicial activism”, “judicial revisionism” and, today, relatively unbridled “judicial supremacy”. Among too many jurists today, familiarity with case law alone and a proclivity for advancing political and social engineering agendas has, in whole or in part, supplanted their fidelity to the Constitution.

In the words of Thomas Jefferson, the Supreme Court and its appellate network have evolved into a “judicial oligarchy”, quite at odds with their original role as “faithful guardians of the Constitution” and woefully incompatible with the bedrock principle of constitutional supremacy.

So, just how do we determine original intent and meaning, this to prevent our further straying from the founders' republican plan of governance? And how do we detect misrepresentations?

In his book, “Original Intent”, David Barton lists10 tactics which “historical revisionists” continue to routinely employ in order to misrepresent history and to misinterpret the Constitution in order to advance their political agendas. And while none of these tactics will surprise the reader, these disreputable and thoroughly unprincipled practices bear repeating here: "the use of patent untruths; overly broad generalizations; outright omissions/misquotations; insinuations and innuendos; impugning morality; presenting fiction as though it were fact; the use of psychohistory/psychobabble; failure to account for etymology (changes in the meanings of words); and the absence of primary source references." More than I want to get into here, but very well-worth perusing in Chapter 16 of his book. 

In “The Original Constitution”, Robert Natelson assures us that “we can reconstruct most of the original Constitution's meaning with clarity and confidence” if we become familiar with period historical records and 1787 law. More specifically, he tells us we should familiarize ourselves with the words of both the framers and the ratifiers which he respectively refers to as the Constitution's drafters and makers, and to rely on Bacon's Abridgment or Jacob's New Law Dictionary to capture the actual and prevailing meanings of their words.

The drafters (framers), 55 in number, wrote and explained the document to the 1,648 state ratifiers who, based upon the latter's understanding of the document as explained to them by the drafters, adopted it, Rhode Island being the last state to ratify in May 1790 . Thus, how ratifying conventions (the makers), representing “we the people” in the several states, understood the intent and meaning of the Constitution as explained to them by the framers is referred to as “original understanding” and is, of course, centrally important to our understanding the Constitution.

Natelson tells us to bear in mind that undergirding the Constitution are these guiding principles with which all founders, both framers and ratifiers alike, were in agreement: liberty, natural/unalienable rights of individuals; effective, decentralized, limited, republican (responsible to the people)  government; fiduciary government (meaning a government acting in good faith and honestly on behalf of the people). And always remember that intent and meaning are predicated upon these inviolable principles.

Within the context of 1787 law and the prevailing rules of legal interpretation, the founders agreed that "to properly construe original meaning one would need to construe the meaning as a reasonable and involved person at the time and under those conditions peculiar to that moment would have done so," relying heavily on how the ratifiers/makers—not the framers/drafters—interpreted the meaning.

Why the heavier reliance upon the ratifiers' understanding? How supportive the state ratifiers were of adopting the Constitution hinged upon their own understanding of the document as presented and explained to them by the framers whose herculean and single-minded task it was to persuade the States to join the new-found republican union. Thus, the ratifiers' understanding of the Constitution is absolutely essential to achieving “original understanding”.

Also, to accurately construe meaning, scholars rely upon the principle of “equitable construction”, meaning that when a document's wording appears to conflict with the intent of the framers, that the latter, that being the intent, once correctly and objectively deduced, holds sway. Obviously, this requires considerable due diligence and no small amount of intellectual integrity.

Then there's the rule of construction known as “designatio unius est exclusio alterius'” (naming one thing implies the exclusion of the other) which is a time-honored means of construing the makers' intent. In his book, Barton clearly illustrates this rule with this example: if your wife tells you to pick up lettuce, tomatoes, and onions at the store, this means to the exclusion of celery and pudding. (Very importantly, this also means that 'enumerated powers” are just that—inclusive only of those expressed powers and exclusive of all others.)

Most critically, when exercising any of the rules of construction, it must be accompanied by objectivity and judgment and, again, the exercise must be purposefully aimed at accurately exposing the makers' intent, and not of advancing one's personal political predilections—surely a very tall order and, for many jurists, lawyers and politicians today, an apparently insuperable and superhuman task.

Henry Monaghan, in “Our Perfect Constitution”, warned that attorneys and jurists, often without an adequate historical perspective, tend to “subordinate good facts to a good argument”, all in an effort to coax a faulty meaning from the Constitution merely in order to win their case or argument. This, of course, can lead to corrupted case law and specious precedents upon which subsequent rulings are erroneously based. So much for the incorruptibility of case law and the misplaced glory and overblown sacrosanctity of stare decisis. (Nothing like piling error on error, huh?)

In the absence of ratifying documentation as in the case of Delaware, New Jersey and Georgia, each of which fairly quickly adopted the Constitution with little discussion, one must remember that the Federalist framers normally went to great lengths to educate, allay the misgivings of, and to win over state ratifiers. They were quintessential marketers and exerted every effort to ensure ratification. Thus, in these particular states where there is a paucity of ratification records, scholars can correctly assume that the framers' explanations accurately reflected these ratifiers' understanding of the framers' meaning and intent. Makes sense.

We should also bear in mind this cautionary note by David Barton: trying to construe original meaning from materials generated after full adoption of the Constitution (May 29, 1790) and the Bill of Rights (December 15, 1791) will inevitably lead to error and misinterpretation. (And the litany of revisionist case law since ratification would seem to fully bear that out.)

Underscoring the importance of construing original intent and meaning, and much to the dismay of "living and evolving constitution" adherents, it is vital to recall John Dickinson's words: “ We are not forming plans for a Day, Month, Year or Age, but Eternity.” In other words, it is the obligation of judges to keep times in tune with the Constitution, not to keep the Constitution in tune with the times. (Not sure where I read that, but there it is.) Thus, adhering to a so-called “living consititution” approach inherently violates our framers' intent. Thus, only by our dutifully relying on the application of the interpretive principles described above can we effectively counteract corrosive revisionism and the corrosiveness of a "living constitution" mindset.

Also, as Barton explains in his book, the framers uniformly understood that “judicial review” was necessarily limited to judging the constitutionality of a law against the “specific, self-evident wording of the Constitution itself”—in other words, “constitutional supremacy” should always trump “judicial supremacy”. Obviously, that formula has not been dutifully applied in today's world of activist/revisionist jurisprudence.

In Federalist #81, Hamilton noted that “there is not a syllable in the Constitution which directly empowers the national courts to construe the laws according to the spirit of the Constitution.” And James Kent similarly explained that the Judiciary could compare a law only to “the true intent and meaning of the Constitution,” the abiding concern of the framers being that if the judges were allowed the latitude of interpreting the more ethereal meaning, aka “spirit”, of the Constitution “they risked imputing any meaning they might personally desire in order to reflect their own prejudices and values.” Thus, having often insisted that true patriots should dutifully and carefully abide by the spirit, meaning and intent of the Constitution, I now stand corrected. It is now clear that to objectively and accurately deduce the original meaning and intent of the Constitution, divining the spirit of the Constitution should be left to the clairvoyant. Lesson learned.

Unsurprisingly, the framers specifically forbade the judiciary becoming policy-makers or legislators. To wit, Rufus King warned that “judges must interpret the laws; they ought not to be legislators”, thus eclipsing the power of Congress, the people's house. To the framers, the unsettling outcome of such judicial overreach would be public convulsion and possible disintegration of the union. In fact, Jefferson warned “that the dissolution of our federal government is in the constitution of the federal judiciary;...working like gravity at night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.” Prophetic.

Obviously, that is where we are today. Imputing court rulings and revisionist case law to the Constitution itself is a serious divergence from the inviolable constitutional role framers had reserved for the judiciary. As such, it constitutes a clear and present danger to constitutional order. And though Jefferson held that the people are the ultimate authority in our republican system of governance, David Barton soberly observed that “today the so-called 'tyranny of the majority' has [now] been replaced by the 'tyranny of the minority'”, referencing many instances of majority electoral rulings being imperiously overturned by activist courts, something never dreamed of or intended by the founders. (The court's overturning California's voters on the issue of gay marriage is an instructive example of serious judicial overreach.) To underscore his point, Barton went on to say that “a foreign observer in modern America today would likely conclude that the President and Congress have taken oaths to uphold the Court's opinion of the Constitution.” Heck, most Americans themselves have begun to share that view as well. And, of course, it is this sorry state of affairs which must be remedied if our carefully crafted of-for-and-by-the-people Republic is to survive. When we grant supremacy to a demonstrably corruptible ruling elite we violate original intent and expose ourselves to tyranny.

Since each branch of government is enjoined to uphold the Constitution as the supreme law of the land, and bearing in mind that each branch of government is inherently empowered by the framers to exercise judicial review, James Wilson asserted that the President can “refuse to carry into effect an act that violates the Constitution.” So too Congress. So too the States, the immediate fiduciary representatives of the people. Jefferson noted that “both magistracies [Executive and Judicial branches] are equally independent in the sphere of action assigned to them.” And with respect to Congress, Luther Martin declared “a knowledge of mankind and of legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Constitution.” Jefferson further explained that “each of the three departments has equally the right to decide for itself what its duty  is under the Constitution without any regard to what others may have decided for themselves under a similar question.” Point: the Constitution and “we the people”, not the Judiciary nor any other branch or level of government, constitute the supreme law of the land. When government laws, edicts, rulings violate the people's understanding of the Constitution, those acts are null and void. (Note: this underscores the applicability and constitutional authority of both the 9th and 10th Amendments.)

Thus, a fundamental truth none of us should forget is that the founders rejected the notion that the judiciary is the final arbiter of what is and is not constitutional. Truth be told, we the people, the ratifiers of the Constitution and the republic we created, are, absolutely and without question, the final arbiters of what is and is not constitutional. Never, ever forget that.

More to the point, Lincoln asserted that “if the policy of the whole government is to be fixed by decision of the Supreme Court,...the people will have ceased to be their own masters” which, of course dovetails with Hamilton's assertion that of the three branches, “the Judiciary is beyond comparison the weakest” which, of course, was by design.

Though seemingly self-evident, it's important to note that the Court may rule on the constitutionality of a law, thus “voiding” it, but it cannot nullify it, that is to say prevent its enforcement. (Andrew Jackson made that clear when he forced Cherokees to move west in defiance of the Supreme Court. To paraphrase Jackson, "Well, they made the ruling. Now let them enforce it.") Also, it is axiomatic that an unconstitutional court ruling is inherently without force. Point: the President and Congress have not taken oaths to uphold the Court's opinion as to what is and is not constitutional. So, in that sense, neither the Courts nor any other branch of the federal government may abrogate or otherwise lawfully ignore the people's will. Ultimate power ultimately resides squarely with the people. Period.

Like other constitutional scholars, Barton counsels that the solution to stemming the degeneration of our republican system of governance is the resurgence of an educated, morally grounded electorate which is able and willing to differentiate between virtuous candidates of character with fidelity to the Constitution and those who are only loosely attached to basic moral and constitutional principles. He also warned that our pellmell slide toward democracy, aka “mobocracy”, or majority rule on the basis of feelings rather than timeless Constitutional principles and laws, must be reversed with all deliberate speed or we lose it all.

Jefferson warned that “if a nation expects to be ignorant—and free—in a state of civilization, it expects what never was and never will be.” Thus, it is incumbent upon each of us to familiarize ourselves and others with original intent.

Chief Justice John Jay counseled that “every member of the State ought diligently to read and to study the constitution of his country...By knowing their rights, they will sooner perceive when they are violated and be the better prepared to defend and assert them.” Toward this end, it is crystal clear to me that we should each strive to be thoroughly familiar with the Constitution, never delegating that civic duty to revisionists, scholarly though they may appear to be, or attorneys all of whom have been schooled on case law rather than the clear meaning and intent of the Constitution itself. Again, though it requires some level of diligence on our part, understanding the Constitution is NOT rocket science. Why? Because the framers never intended it to be so. It's a relatively straightforward document, the people's guide to republican governance.

Noah Webster warned that “when a citizen gives his suffrage [his vote] to a man of known immorality he abuses his trust [civic responsibility]; he sacrifices not only his own interest, but that of his neighbor; he betrays the interest of his country.” Lesson: we must cast aside our political party-first blinders and allow the clear meaning and intent of the Constitution to inform our viewpoints and our selection of candidates to represent us.

Samuel Adams warned that “a state of indolence, inattention and forever the forerunner of slavery.”

Daniel Webster cautioned that “I apprehend no danger to our country from a foreign foe...Our destruction, should it come at all, will be...from the inattention of the people to the concerns of their government, from their carelessness and negligence.”

Finally, Pres. Garfield counseled that “...the people are responsible for the character of their Congress. If that body be ignorant, reckless, and corrupt, it is because the people tolerate [it].” Wow! He certainly has aptly described the horrifically unpleasant state of political affairs in which we find ourselves today. Some of the asinine, dismissive and ignorant statements about the Constitution uttered by some of our DC reps have been particularly unsettling and offensive.

Ultimately then, folks, the fate of our constitutional republic--our individual liberties--rests solely upon our willingness to actively and knowledgeably participate in our political process, and to insist that we all remain faithful to the Constitution. And, frankly, save for the Tea Party and Nullification Movements today, we've been blowing it big time.