Monday, February 9, 2015

The Curious Case of A National Suicide Pact

I continue with my reading in the letters of Thomas Jefferson and of Abraham Lincoln. My admiration for the constitutional acuity of Jefferson never diminishes as I read, but only grows.

Jefferson, writing to Judge Spencer Roane, puts the character of an issue in his day in sharp relief, and, in words that are applicable today as then. There, speaking of the Supreme Court's decisions by John Marshall, he characterizes the decisions as utterly beyond constitutional bounds. In fact, he declares that, if the Constitution in fact authorized the Supreme Court to be the sole and final voice of interpretation of the Constitution, then it was a "felo de se," a “felonious act of suicide."

Jefferson's letter responding to Judge Roane, and steering away from a view expressed in a letter published in the Richmond Enquirer, sets out his view that each branch of the federal government was bound to its own construction of its powers and duties under the Constitution. Moreover, he concluded that the Constitution did not extend to any single one of the three branches of the general government a general power of interpretational superiority to the other branches. Rather, each branch was duty bound to interpret the Constitution as necessary to its performance of its own duties. To the extent that the checks and balances of the Constitution empowered one branch to exercise authority over another, that could only be done as expressly stated in the Constitution.

Thus, for example, impeachment is clearly a mechanism by which the executive and judicial officers may be restrained by Congress from unlawful or, in its judgment, unconstitutional acts. But there was no power granted to the President, for example, simply to suspend or dissolve Congress, or the courts. So an Order of the President dissolving Congress and calling for new elections might impress the President, but it would not compel Congress to end its deliberations.

In his letter, Jefferson, with the long view of eight years in the Presidency, and a decade following that of contemplation, knew precisely how to illuminate this political philosophy of his: he explained the underlying dispute in one of the most oft-cited and discussed cases of constitutional law, Marbury v. Madison.

As Jefferson saw the matter, in a series of last minute, midnight appointments, John Adams signed and sealed a set of commissions for justices of the peace in Alexandria. Those signed commissions literally were laying on a table in the office of the Secretary of State when Jefferson took office, and he forbade that they should be transmitted to those named, including Mr. Marbury. Jefferson remonstrated against the decision -- even though it dismissed Mr. Marbury's claim against Jefferson's Secretary of State, James Madison -- because the Court, when it could and should have simply said, "Case dismissed," used the occasion to set out its view on its supremacy in constitutional construction.

Jefferson states the view that, in the hands of judges such as John Marshall, the Constitution is made into a thing of wax, to be bent and twisted to the preferences of judges.

That might sound familiar to some of you.

There has been an ongoing battle, just some 210 years long, over the character of the Constitution as a changeable thing. Judges, including William Brennan, Harry Blackmun, Thurgood Marshall, and Ruth Ginsburg, all exhibit a manner of constitutional construction that is in keeping with the view that the Constitution is like a living being that it is capable of growing and developing through the Court's construction of it. Jefferson, as President and as emeritus to that office, like Antonin Scalia and Clarence Thomas, take the Constitution as a thing of fixed meaning, not capable of expansion merely by preferential interpretations given to the document by themselves or any judicial majority.

Yet, in his day, Jefferson saw this propensity to view the Constitution as a thing capable of being transformed in the hands of unchecked judges. That is the central concern of his letter to Judge Roane. That was his concern then. That is our danger now.

Yes, our danger now.

Today, courts across the nation are proceeding apace, in the name of applying the Constitution, to strike down State laws and State constitutional amendments on the subject of the definition of marriage. Here I am not stating a case against recognition of same sex marriage, or rejecting the power of a State, through the exercise of its republican mechanisms, to do so. Instead, I am confirming what you already know: that the judicial cabal, principally consisting of federal trial and appeals court judges, has claimed for itself a superiority the republican will of the People in some twenty six States of the Union.

Article III of the Constitution sets out the powers, duties, and boundaries of the Judicial Branch of the General Government. If the Supreme Court, or an inferior federal court, exercises power or authority, it does so, if legitimately, only within the bounds and terms set out in Article III.

Yet, one can search in vain for the "Marital Supervisory Authority Clause" within Article III of the Constitution. It is not there to be found.

And, one can search in vain for the "Supremacy of Constitutional Construction Clause" within Article III of the Constitution. It is not there to be found. 

Indeed, one can search in vain for the “We'll Do as We Damn Well Please Clause” within Article III of the Constitution. It is not there to be found. 

These powers of the Courts -- to exercise a supervisory control over State laws regulating marriage, to the exclusive and final construction of the Constitution, and to do as they damn well please -- are the product of two hundred years of deformation of the Constitution. They most assuredly are not express powers grained to the federal judiciary in Article III.

Some, including friends and family, may celebrate today's, or recent, decisions by federal courts, regarding such matters as marriage equality, or the rights of undocumented aliens, or the like. As ever, I just note for your consideration what Jefferson warned in his letter to Judge Roane. You gain such victories in these circumstances -- not by popular sovereignty, which is the truest and best bulwark of liberty, -- by a softly tyrannical oligarchy. Though that oligarchy patronizes your preference today, it can be turned on a wind, just like a sailing ship.

If you would not lose those liberties that you prize, you should not applaud the abuse of them in the name of liberty.