Liberty Founders on a Mound of Entertainments and Distractions

The Constitution is more than one document at the same time. It is a plan of government, writ at a high level of generality. It is a donation of authority by the States and the People to create that government.

It is, as well, a barrier to excesses by that government, a barrier that operates at two levels. It reserves unenumerated powers to the States and the to the People. It provides so-called "checks and balances" between the parts of the federal government.

But the Constitution is no more the government than a blue print is a house.

But if a house is to be built, the blueprint must be honored. By honored, I mean only that the craftsmen follow the measures and designs, the construction materials lists, and assemble the product as proposed in the elevations and drawings.

If the federal government envisioned by the Framers and Ratifiers of the Constitution is to come into existence, then it too must be honored by the craftsmen that follow. 

The difference here is that the craftsmen are office holders and their lawful designees, individuals that alone or by groups wield powers that are categorized as either legislative (the making of law), executive (the enforcing of law), or judicial (the evaluation of the enforcement of law). What has actually happened with our national government, however, has been the governmental equivalent of carpenters, masons, plumbers, and electricians "ad libbing" their efforts rather than following the blue print.

Some examples illustrate my meaning.

Take Thomas Jefferson, whose basic philosophy was very like that of Antonin Scalia. He viewed the security of the liberties of the People as dependent on a Constitution of fixed, determined meaning, what Scalia referred to as the "hide-bound" Constitution. Still, the Chief Executive of a young Nation, Jefferson sees a swath of desirable territory that lately is available. Now the expansion of the national boundaries of the nation, drawing within its border the considerable natural resources there located, is a good. But it is a good the accomplishment of which, at a minimum, required the advise and consent of the Senate (as to a treaty for purchase), and the appropriation of necessary funds by the entire Congress. Jefferson follows the age old adage that it is better to ask forgiveness than permission and negotiates the Louisiana Purchase.

Or take the Federalists. Upon ratification of the Constitution and the standing up of the national government, the Federalists had the Congress and the White House. They had populated the new judicial system with federalist judges. They sought to coalesce their control of the country by limiting dissent. To do so, they enacted the Alien and Sedition Acts. These acts clearly violated the prohibition stated in the First Amendment that Congress shall make no law abridging the Freedom of Speech. Yet they did just that.

Military adventurism without a formal declaration of war, in my lifetime includes Vietnam, Grenada, Panama, among others. Others went before. There is NO CONSTITUTIONAL JUSTIFICATION for a President to conduct war against another nation in the absence of a declaration of war, yet it is done all the time. 

For that matter, the myriad, hundreds of thousands, of pages of federal regulations reflect Congress allowing executive branch agencies to impose regulations like the Executive Branch had law making authority. Moreover, the enforcement mechanisms by which such agencies conduct hearing on rule violations smack of judicial adventurism by the Executive.

Ultimately, there is this terrible, hopeful monster of excursions, excesses, and entropies, by which we are now MASTERED.

You may not think about these things much. When I think about them, I sometimes wonder if things are now as they are because too few anymore care to know the meaning of the Constitution or to discipline the agents of the government for their violations of it.

‘Ere Now, I Wun’t Do That, If I Were You

A tragic story recently dropped in the news of a couple that drove off a road onto a non-existent bridge. An ensuing conflagration took the life of the woman, the man escaped with his life. Numerous “Road Closed” signs, cross bucks, and traffic barrels stood silent testimony to the non-existent bridge ahead. Still, Iftikhar Hussain relentlessly obeyed his GPS, which apparently had not been updated with information showing the bridge closed and demolished. News coverage can be found here.

A story like that will put you to puzzling.

How do you ignore all the visible evidence of danger? Why would you trust technology when your eyes tell you something different? Had this just been a bump in the road, we would chuckle, but a woman died, so laughter is unseemly. The caution in the tale remains.

A lifetime ago, I studied law at St. Louis University School of Law. Too many tales to tell there, but one that connects to this post is a well-known case from our first year Torts class. Torts are claims for damages to persons or property, and Torts class introduces law students to the law that governs such claims, the defenses against them, and the public policies that overarch a system of damage claims in our society.

One of the first cases we took up involved the unfortunate reality of spontaneous combustion. Not the X-Files kind of spontaneous combustion shown here, but the one that occurs when vegetative matter ferments, creates sufficient heat, and ultimately combusts. This case was one of badly stacked hay, and the failure to heed cautions.

As keepers and herders of cattle, sheep, horses and other farm animals, humans have relied on stored grasses to feed their animals for centuries. Such grasses are commonly called “hay” (hay’s cousin, straw, is not a food stock for animals, but used for bedding, insulation, and other purposes). To meet the needs of their herds, and as a commodity, farmers grow grasses and legumes, harvest the plants before blossoming, and gather the harvest in bundles called “bales.” You have seen hay bundles (or straw ones). Probably you have seen these, the cube bundles, or if you have been into farmland areas, you have probably seen the giant rolls.

Hay bales are a kind of insurance against hungry livestock. Oddly, hay, the product of planning, labor, and diligence, also represents a significant source of risks for the careless. If poorly gathered, poorly baled, or poorly stored, mold or bacteria can contaminate hay, raising risks of harm to livestock and to humans. Gathering, moving and stacking hay bales presents logistical considerations, safety not being the least significant one.

In law school, in that Torts class, we studied a case involving one of those hay-related risks, realized. Studying the case afforded us, as students, the opportunity to consider whether one property owner owed a duty to the owners of adjoining properties in situations where they stored bundles of hay on their property. Manlove (a suggestively naughty name for, as it turns out, a naughty man) owned property adjoining that of Vaughan. Their properties, bucolic, rural, English ones, productive of the kinds of grasses that could serve well as animal fodder, ought to have been home to two harmonious subjects of the Crown. Had that been the case, then, of course, there would not have been a case for us to study. Had Manlove put his property to other use, too, he might not have become the watchword he did become. For Manlove has become the watchword to law students, to tort law professors, and to lawyers, for a legal concept called reasonable care.

The law, like many professions, floats on a sea of jargon. The word Torts, taking the place of the words, personal injury, or damages, is one such instance. Others could be offered. Manlove gives us a legal concept of “duty,” expressed in legal jargon as reasonable care. It all started out innocently enough.

Manlove grew grasses for hay. Manlove harvested those grasses. Manlove made bundles, bales, of those grasses. Manlove stored those bundles. His manner of stacking and storing his bales gave rise to the dispute between Manlove and his neighbor, Vaughan.

Manlove’s stack of bales – what farmers called a hayrick – spontaneously combusted. His neighbor’s property, with two cottages on it, adjoined the location of the flaming hayrick. The cottages suffered serious damage from the flames of Manlove’s fire.

Now today, like me, the Average Joe probably could not make a good bundle on his own (and we all know how tough it is to make a bundle under this administration), though he might, just maybe, make a reasonable stack from bales formed for him by another. But, would I have known, would the average Joe have known, that unless careful planning and execution were involved, the hayrick might become a flaming pyre?

As it turned out, even if Manlove did not know about fermentation of vegetative matter, the risks of spontaneous combustion and the like, his neighbors did. Our Torts professor, Nicolas Terry, hails from Ye Merry Olde England. Professor Terry gave us, in the accent of his native land, a rendition of the neighbor’s caution: “Ere now, I wun’t do that if I were you!”

It seemed that passersby could see that the hayrick constructed by Manlove presented serious risks of fire. Indeed, Manlove gave every indication of understanding the possible risk of fire, because, in response to the neighbor’s adjuration, he bombasted that “he would chance it.”

We tell such lovely tales, at least in law school, only because they turn out so badly. As a tale, the story of the bales of Manlove ends badly. The bales, too tightly packed, overly wet, and very fermentable, spontaneously ignited. Sparks carried on the wind to Vaughan’s cottages. Vaughan’s thatched roof cottages caught fire. A conflagration ensued. The result was much like that shown here.

Ere now, I wun’t do that.

Afterward, of course, a caution like that, ignored as it was by Manlove, is fairly damning. In the subsequent suit, Manlove resisted Vaughan’s claim for damages. He asserted that the conflagration and its consequence were not foreseeable outcomes and, therefore, preventable.

Yet, there were those words, “’ere now, I wun’t do that if I were you!” Ultimately, an English court concluded that Manlove failed to act with “reasonable care.” That advance caution told the tale of his carelessness, for even the casual observation of the passersby testified that Manlove created the risk that caused Vaughan’s loss.

We have the story of Manlove ignoring the advice of neighbors and passersby that his hayrick was a fire risk. We have the story of Iftikhar Hussain and his late wife, ignoring the obvious warnings all around them, blindly obeying the out-of-date GPS system. Cautionary tales like these have value, if at all, when we take the lesson of them. So let us take the lesson.

In 1787, the united States, thirteen of them, sent delegates to Philadelphia to consider changes to the Articles of Confederation that would strengthen the ability of the confederated States to respond to dangers and unrest. The proximate motivation for that meeting was the recently concluded Shay’s Rebellion. That armed uprising, most fiercely involving farmers of Massachusetts, including the eponymous Daniel Shay, resulted from a combination of rising tax debts, crop losses, and the threat and reality of foreclosures on family farms. Uprisings extended down to South Carolina, but were particularly heated in Massachusetts.

Under the Articles of Confederation, the ability of the confederated States to provide military assistance to each other when threatened with such uprisings, even when devolving into anarchy, was quite constrained. Worse, when Congress was not in session, it required the assent of a super-majority of the States – nine States – to exercise the powers delegated to the Congress. In the face of Shay’s Rebellion, the need for military assistance arose. Due to the restrictiveness of the Articles, however, the Confederation could not call out troops in a timely fashion.

With the “weaknesses” of the Articles thus exposed, the States responded to a call of the Congress to assemble representatives in Philadelphia to consider how the Articles might be improved, the Confederation strengthened. Ultimately, the Philadelphia Convention in the summer of 1787 produced the proposed Constitution of the United States. Congress, in turn, propounded that Constitution for consideration by the States. The requisite number to ratify the Constitution – nine States – did so by 1789. Getting to ratification provoked a national conversation. It was in that national conversation that, I would like to suggest, one or more “’ere now, I wun’t do that” appeared.

For present purposes, and because of the centrality of the federal courts in most every contested issue of public policy today, I offer this insight into the “’ere now” that cautioned against the specific constitutional framework for the Judicial Branch being considered by the States.

First principles, though, we should lay briefly out.

First, the States pre-existed the Constitution. In fact, the States gave life to the Constitution by their ratification of the same. Ronald Reagan, in his First Inaugural Address, explained, “All of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government.” Subsequent machinations – for example, by the Supreme Court – to deny or to denigrate the role of the States and to attribute the ratification of the Constitution to the People of the country generally – simply ignore fact and history.

Second, the general government set up in the Constitution was one of defined, limited powers. James Madison, the architect of the Virginia Plan that guided much of the discussions in the 1787 Philadelphia Constitutional Convention, and one of three authors of the Federalist Papers, put this point as follows:  “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” Delegates from States less than sanguine about a growing general government viewed this principle as an essential bulwark against the aggrandizement of power in the general government. Any claim that a Constitution setting up a government of unrestrained powers would have been accepted by a sufficient number of States is beyond suspect.

Third, in framing the general government, the States divided the powers of that government among three branches, assigning entirely and solely to each branch powers of particular kinds. To the Legislative Branch, the States assigned all legislative powers; to the Executive Branch, the States assigned all executive powers; and, to the Judicial Branch, the States assigned all judicial powers.

Many points of dispute needed resolution by the States as part of, or prior to, their ratification debates. For example, not all the States agreed on the need for a stronger general government. The means of accomplishing various tasks typical of governments had to be addressed, including such things as regulating internal and international commerce, regulating relations with other nations, the designation of officers and functionaries of the government, had to be decided on, and justified when questioned. These and myriad other issues required resolution. Resolution required evaluation and debate.

Debate ensued. Key voices in the debate spoke through the journals and papers of the day. Opponents of the Constitution, Anti-Federalists, laid out their objections to the general framework and particular points. Supporters of the Constitution, Federalists, offered rebuttals to the Anti-Federalists’ arguments, and separate arguments for the Constitution and its particulars.

In The Federalist No. 78, Alexander Hamilton responded to Anti-Federalist concerns about the dangers inherent in the Judicial Branch proposed in the Constitution. Hamilton sought to assuage fears of an encroaching, threatening, and enlarging Judiciary. He wrote:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, 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 Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.

The least dangerous branch to the liberties of the People, he asserted. Yes, Hamilton actually wrote those words. How times have proven him wrong repeatedly.

Beginning with its assertion of the sole power to construe, to state definitively the meaning of the Constitution, asserted by the Supreme Court as ground for striking down a federal statute in a case called Marbury v. Madison, the Judiciary has never shrunk, has never abandoned gained ground. Rather, whether actually expanding the bounds of its decisional territory in particular cases, or simply laying groundwork for doing so at subsequent opportunities, the Judicial Branch has worked relentlessly to aggrandize its power, to undermine the power of the States, and to arrogate to itself, in preference to the elected branches, powers related to determining the policy of the entire Nation on a broad spectrum of matters.

Now, as to that “’ere now, I wun’t do that,” allow me to expound.

One Anti-Federalist in particular, Brutus, widely accepted to have been the nom de plum of Robert Yates, saw matters rather differently than Hamilton. In fact, rather than the least dangerous branch, Brutus foresaw that the Judicial Branch, constructed as provided in the Constitution, would become the most dangerous to the liberties of the People.

In a series of essays, Brutus devastated Hamilton’s glib treatment of the Judicial Branch:

The power of th[e supreme] court is in many cases superior to that of th[e] legislature. I have showed . . . that this court will be authorised to decide … the meaning of the constitution; and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it. In the exercise of this power they will … be … above the legislature. . . . 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; and therefore in this respect their power is superior to that of the legislature. . . . The judges are supreme and no law, explanatory of the constitution, will be binding on them. Antifederalist No. 78

They [the courts] will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution that can correct their errors, or control their adjudications. From this court there is no appeal. . . .

The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.

That the judicial power of the United States, will lean strongly in favor of the general government, and will give such an explanation to the constitution, as will favor an extension of its jurisdiction, is very evident from a variety of considerations. . . .

This power in the judicial, will enable them to mould the government, into any shape they please. The manner in which this may be effected we will hereafter examine. Antifederalist No. 79

Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted. One adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only, so that a series of determinations will probably take place before even the people will be informed of them. Antifederalist No. 82

I have included highlights from Brutus’ essays only, but I link them so you can read them in full. At the same time, I summarize briefly what Brutus expressed:

First, under the proposed Constitution, the Judiciary will predominate over the Legislative Branch, and over the States. The key to its predomination is its duty of deciding cases “arising under the Constitution. . . .” The Judiciary is required to decide such cases, but is not beholden to a superior power. Moreover, its own powers are not expressly circumscribed, except to the extent that the Judiciary can act only in actual cases and controversies.

Second, as proposed, the Judiciary will not find itself bound to the letter of the Constitution. Rather, the Judiciary will seek to apprehend and enforce the “spirit” and “intention” of it. How presciently Brutus looked into the future, seeing today’s unsettled dispute between hide-bound Constitutionalists and living breathing constitutionalists, between the Scalias and Thomases (and Jeffersons and Lincolns) on one hand and the Ginsbergs and Breyers (and the Wilsons and Roosevelts) on the other.

Third, as the Judiciary conducts its business in the deciding of cases and controversies, it will, by steps large and small, constantly and inexorably chip away at the independent status of the States in their reserved powers and rights. This erosion of the status of the States will not come by accident, through unintended consequences. Rather, it will be in the nature of the Judiciary to so construe the Constitution as to expand federal jurisdictions and contract State jurisdictions.

Thomas Jefferson offered an insight into this aspect of the Judiciary. In a September 1820 letter to William Jarvis, responding to Jarvis’ gift of his then-recently published Republican, Jefferson addressed Jarvis’ view that judges would be “the ultimate arbiters of all constitutional questions.” Jefferson considered that “a very dangerous doctrine indeed, and one which would place [the Nation] under the despotism of an oligarchy.” He continued, “They are then, in fact, the corps of sappers and miners, steadily working to undermine the independent rights of the states, and to consolidate all power in the hands of that government, in which they have so important a freehold estate.”

Fourth, and most disconcertingly, Brutus could not conceive of a plan better designed to abolish state and local government than the Judicial power of the proposed Constitution. It contained within itself the seeds of the destruction of States. Brutus, if he was Robert Yates, had grounds to consider that such a design was intentional. Among the proposed plans for the new Constitution, one plan, offered by Alexander Hamilton, would have virtually eliminated the separate State governments, reducing them, essentially, to departments or bureaus of the central government. Hamilton’s specifics too much resembled the English Parliamentary system and was rejected by the Convention. But Hamilton became a patron of the proposed Constitution and, with James Madison and John Jay, a principal author of the Federalist Papers.

Brutus offered his “’ere now.” Hamilton offered his sophistical contentions about the Judiciary. Now the time has come to tell the end of tale. In Hussain’s case, the story ended badly. In Manlove’s case, the story ended badly. In those cases, wise counsel was ignored, left untended.

And here?

It is fair to say, with the acuity of hindsight, that Brutus looked into this Nation’s future with surprising insight. His conclusions about the dominance of the Court over the States and over the other branches of the Court have proven correct beyond the wildest dreams of oligarchical rule.

Consider how, by bits and steps, the Judicial Branch, in its task of interpreting and applying the Constitution, whittled away at the power of State governments in areas long thought to be entirely separate and unreachable by the general government:

While education was a matter of purely local and State law, and was left alone as such for more than a century under the Constitution, in a pair of cases, Pierce v. Society of Sisters and Meyer v. Nebraska, the Supreme Court struck down state laws governing educational practices of the States. In Pierce, the stricken law prevented parents from exercising a prerogative to educate their children in private, parochial schools. In Meyer, the stricken law required all schools, public or private, to offer their courses of study in the English language. These two cases came out of an era of the Supreme Court’s growing affinity for the use of the Due Process Clause of the Fourteenth Amendment as an ax to hack away at State sovereignty across a broad field of human interests.

In like vein, in a case out of Virginia, Loving v. Virginia, the Supreme Court struck down a Virginia law prohibiting interracial marriage. Miscegenation laws served, I suppose, a highly dubious interest of the Commonwealth of Virginia in some irrationally perceived genetic danger resulting from such commingling. Again, before the era in which the Supreme Court had begun to assert a federal constitutional basis for evaluating and rejecting a raft of State laws long accepted as within the separate, sovereign spheres of State authority, such a decision would have surprised, if for no reason other than the assertion that the Constitution required it.

But Loving had simply trod further down a path explored by the Judicial Branch in striking State laws regulating contraception. There, in Griswold v. Connecticut, the Supreme Court again relied on some previously unknown matrix of federal power to invalidate a State law drawn and enacted to regulate in an area traditionally within the reach of State sovereignty.

A line drawn through State laws on contraception and miscegenation could be safely predicted to also strike out restrictions on the practice of abortion. Roe v. Wade followed rather quickly on the heels of those decisions. A judgment allowing a woman and her doctor, even in the face of a State’s interest in the life of a child, to gut that child, to aspirate her little body from the woman’s larger one, readily points down the path to a rejection of State authority to regulate human sexual relations at all. In fact, though it took a quarter of a century, the Supreme Court extended its reasoning in the Abortion Cases to strike down statutes prohibiting homosexual sexual activity, particularly sodomy, in Lawrence v. Texas.

In fact, that red pencil of Judicial arrogation is quite likely to continue right on striking down laws of the States regulating areas of human intercourse long thought to be solely the province of State regulation. By July, we will discover whether the next most likely victim of the Judicial Branch’s red pencil -- State laws and constitutional provisions limiting marriage -- to opposite sex couples will be swallowed by the gaping maw of the Judicial Branch.

Nor has the Judicial Branch been wanting in attending to the task of demonstrating its predominance among the coordinate branches of the general government.

The Judicial Branch struck down, and strikes down, congressional enactments at a pace that might seem glacial to activists, but maniacal to Brutus and to Jefferson. Beginning with the previously mentioned Marbury v. Madison, the Judicial Branch asserted and exercised a power to review congressional enactments. The Court used that power first in Marbury, where it struck down a law giving certain claimants a right to file suit in the Supreme Court. Subsequently, the Judicial Branch has interposed itself in (and today continues to interpose itself in) the great questions of law and policy formerly thought to be most safely reposed in the representative body of the People, the Legislative Branch.

In Dred Scott v. Sandford, for example, the Supreme Court ended three decades of uneasy truce between the States bitterly opposed to each other over this very question. There, the Supreme Court struck down the Compromise of 1820, which checked the growth of slavery and in federally administered territories entirely prohibited the practice. The Court not only held that blacks were not, and never could be citizens of the United States in that case, but expressly denied that the Congress had power to regulate slavery in federally administered territories. A war amended that decision, but at the cost of near a half million lives.

The Judicial Branch has struck down federal statutes on campaign finance.

The Judicial Branch has struck down a federal statute on Voting Rights.

The Judicial Branch has struck down federal statutes on marriage, and on religious liberties.

In the election of 1800, what Jefferson called the Revolution of 1800, the nation turned from the Federalists toward the Jeffersonian Republicans. Still, in the maddening rush of the lame duck Federalist Congress, the outgoing Congress revised the Judicial Branch’s structure, created the Circuit Courts of Appeal, installed a raft of judges of Federalist sympathy, and left in their ruinous wake, what Jefferson considered to be the most insurmountable problem.  For even with the great realignment in the Legislative Branch and the Executive Branch, the entrenchment of Federalist judges guaranteed great difficulty or complete impossibility for the tasks of shoring up the separate sovereignty of the States and the attendant liberties of the People.

So, ‘ere now, against Brutus’ warning, and with the insane encouragement of Alexander “Mr. Toad” Hamilton, our Nation has, in fact, been on a wild ride of judicial arrogation and excess extending two full centuries and beyond. So, when you ask yourself how could the Hussains have driven off a nonexistent bridge, how could Manlove have burned his neighbor’s cottages, even in the face of such obvious warnings a highway safety signs and neighborly “’ere nows,” it might be wise to wonder which tragedy is greatest.

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.

Shall We, Under the Constitution, Govern Ourselves? Or, Shall We Be Ruled Under Tyranny?

 (This is Part II of a Blog evaluation of the recent federal appeals court decision holding that the tax imposed for failing to purchase health insurance did not violate the Origination Clause of the Constitution. You can read Part I, in which the decision is summarized, here.  Here, I raise old questions about the nature of our government and about the existence of a putative duty of citizens to respect decisions of a federal court that purport to interpret and apply one of the fundamental documents of the Nation, the United States Constitution.)

As previously explained, the DC Circuit has rejected a constitutional challenge to the tax imposed by the Patient Protection and Affordable Care Act.  That challenge asserted that the tax violated the Origination Clause of the Constitution because the legislation imposing it originated in the Senate, rather than the House of Representatives.  In my previous post, I concluded:  “For now, it would seem that the Origination Clause theory is in trouble.”

Perhaps it is in bad form to open a conversation with a litany of questions.  Nonetheless, we face the consequences of a lazy Congress, a tyrannical president, and an unhistorical court decision.  A few questions are, I think, a good way to frame our circumstances.

Should the Origination Clause challenge to the tax imposed for failing to purchase health insurance fail?

Should the decision of three appointed judges bind a Nation and its People to their determination of these intertwined issues?

Should the Origination Clause be understood to apply only to those bills about which the Congress entertained “raising revenue” as its animating purpose and intention? 

These questions, how we examine them, how we answer them, decide more than the constitutionality of the Act.  Rather, what we say about these questions, the principles we bring to bear on them, reveal much about how we, as a People, have progressed under the Constitution, how we have learned the lessons of the setting up of, and governance of, our Nation.

Are we bound to bow to the conclusions reached by three judges in this matter? Do a federal court’s neat machinations around the Origination Clause literally command the heartfelt obedience and respect of us all?  To that decision, as free people under this Constitution, do we owe some kind of fealty?

The answer to each of these questions might be “yes,” but I think the proper answer to each is “no.”

By saying “no,” I join Abraham Lincoln in rejecting a judicial power to set policy for the Nation, and in rejecting the notion that construction and interpretation of the Constitution is the sole province of the Judicial Branch.

In his First Inaugural Address, Lincoln concluded that the Supreme Court, if its decisions resolved questions of national policy conclusively, would supplant the People as their own governors.  As a People, have we actually come to the place that Abraham Lincoln forecast over 150 years ago?  Then, as the nation reeled from its battles over regulation or prohibition of slavery and over the legal theory of secession from the Union, the Supreme Court took a swipe at the policy-making and legislative power of the People, exercised through the Congress, when it decided Dred Scott versus Sanford. 

Dred Scott had lived most of his life in the service of a military doctor and his wife. In the course of that service, Scott had lived in States that recognized the right to own slaves and in States that prohibited slavery and rejected the idea of ownership of one man by another.

In Dred Scott, the Court rejected Scott’s claim that, because he had resided in Free States while under the ownership of his master, he had, in fact, become a free man.  So, in essence and in fact, the Court rejected Scott’s claim to freedom.  The Supreme Court -- ever the beacon of human rights and liberty -- concluded that Africans in America were not citizens of the United States, could not, in fact, be citizens of this Nation.  Consequentially, the Court concluded that Scott lacked standing to sue in federal court.  On the substantive question, the Court concluded that restrictions on owning and importing slaves -- imposed on federally administered territories prior to their admission to the Union as States – had been beyond the power of the Congress to impose. 

The upshot of the matter:  Scott’s case was dismissed.  More importantly, the decision resolved two important questions of constitutional construction.  As a consequence important policy questions arising from the dispute among the States over slavery were, seemingly, placed beyond the power of the People, through their Legislatures, to address.

That result, of great moment to People who would govern their own affairs, inspired Lincoln’s observation of an eminent tribunal, the Supreme Court, displacing the People in the affairs of policy making.  In his Address, faced with resolutions of secession and threats imminent to federal offices and officers within the Southern States, Lincoln would not avoid addressing these same central issues of policy purportedly put beyond republican amelioration by the Dred Scott decision.

Lincoln observed the none-too-subtle shift of the locus of power accomplished by settling upon the Court a legitimized power to impose policy by simply deciding case: 

A majority, held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it, does, of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

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 in any case, upon the parties to a suit; as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. 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. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.

As Lincoln observed, in its deciding of Dred Scott, by arrogating to itself the power to interpret the Constitution as its exclusive province, the Supreme Court denied to the Congress a power to regulate slavery in federally administered territories.  In doing so, it stripped the People of the United States of the power to be their own governors in this particular.  Thus, as he said, to that extent the People will have surrendered that power into the hands of that “eminent tribunal.” 

Lincoln, ever a gentleman, did not call out the justices of the Court as fabricators.  In fact, his address portrays the Court as having no choice in the matter but to decide the cases before it:  “Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.”   Without imputing to Honest Abe a lack of candor regarding his views on the Court’s obligations, his words suggest a mechanical, preference-free, dispensation of justice.  Lincoln’s caution in the moment has not restrained others to make more candid observations.

Mark DeWolfe Howe, attorney and historian, rendered one of the most disturbing indictments of the Supreme Court’s decision making process with which I am familiar.  Howe, lecturing at Harvard Law School, responded to the Court’s decisions on religion and the law.  The lectures, given in the early 1960’s, became the basis of his book, “The Garden and the Wilderness.” As Howe set the stage for his exploration of the Court’s Religion Clause cases, he first addressed the roles played by the justices in deciding cases. 

Of course, their principal roles were as judges of the Nation’s highest tribunal.  In reaching their decisions, Howe noted, the justices often also took on the role of historians.  In his view, however, the justices as historians often subverted history in service of intended outcomes. 

Howe began his consideration of the Religion Clause decisions by demonstrating that the Court’s choice to pick a metaphor – the wall of separation between church and state – was, in fact, the Court’s choice to pick an outcome.  More, by focusing on Jefferson’s Wall of Separation, the Court put its historical and juridical focus on the history of the struggle for religious freedom in Virginia. By doing so, the Court imported to the meaning of the Religion Clause the peculiarities of Virginia’s struggle.  Indeed, the Court vaunted the Virginia struggle for religious liberty over every other possible source of meaning for the Religion Clauses.

Howe examined the intersection of those two roles played by Supreme Court justices:

Among the stupendous powers of the Supreme Court of the United States, there are two which in logic may be independent and yet in fact are related.  The one is the power, through an articulate search for principle, to interpret history.  The other is the power, through the disposition of cases, to make it.  Phrased somewhat differently, the contrast which I have in mind is that between the scholar’s capacity to conduct a groping search for past even and initial purpose and the statesman’s talent for making the decisive choice of a rule of conduct which he believes to be suitable for the government of the future.

Howe suggests that a justice may be a scholar and a statesman of a kind, but that, in rendering decisions, the risk is real that a justice can, in fact, become a policy-maker designing our lives under the framework of law.  He continues:

It is the common-law tradition, perhaps, which leads the Court and those who study its processes to assume (or had I better say “pretend”?) that the history which is made by the Court’s decisions is merely the realization of the past which the learning of the justices and their clerks has uncovered.  The judge as statesman, purporting to be the servant of the judge as historian, often asks us to believe that the choices that he makes –the rules of law that he establishes for the nation—are the dictates of a past which his abundant and uncommitted scholarship has discovered.

From these thoughts, Howe contemplates that a reasonable reader will have sensed in his words doubt of the Court’s adequacy in interpreting our nation’s history.  If the reader has done so, Howe explains, it is likely the product of the reader realizing the intention of the writer:

I believe that in the matters at issue the Court has too often pretended that the dictates of the nation’s history, rather than the mandates of its own will, compelled a particular decision.  By superficial and purposive interpretations of the past, the Court has dishonored the arts of the historian and degraded the talents of the lawyer.  Such dishonoring and degrading may not be of large moment when the history that the Court manipulates is merely “legal history”—the story, that is, of the law’s internal growth and development.  When, however, the Court endeavors to write an authoritative chapter in the intellectual history of the American people, as it does when it lays historical foundations beneath its readings of the First Amendment, then any distortion becomes a matter of consequence.

That is, indeed, a telling indictment of Supreme Court decision-making processes in the Religion Cases from the late 1940s forward.  The indictment applies, I think, with equal weight to Judith Rogers’ opinion for the DC Circuit on the Origination Clause, and her application of her construction of the Origination Clause to Matt Sissel’s challenge to the tax imposed under the individual mandate.  

There is no clause of the Constitution assigning to the Supreme Court the power or duty to construe the Constitution in a manner conclusive of constructions given to that document by the Congress or by the President. If you doubt it, read Article III of the Constitution for yourself. Today, of course, few dispute the Court’s pre-eminent authority to do so, even in the absence of an express designation of such a duty or power.  That outcome might have surprised some delegates at the Constitutional Convention of 1787, but would not have surprised Alexander Hamilton, the author of the Federalist No. 78.

Although the delegates to the Constitutional Convention agreed to conduct their sessions in secret, several attendees took notes, and a number of speeches, in addition, were rendered from written manuscripts.  Together the notes and speeches give us the opportunity to listen in as the Convention considered how to make “a more perfect Union.”

Early in the Convention, James Madison’s proposal, “The Virginia Plan,” was offered for the consideration of the delegates then present.  Among the points proposed was one to create a council that would, essentially, sit in judgment of congressional acts to determine their constitutionality and wisdom.  This text explains the point proposed:

“Resolved that the Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, and every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by — of the members of each branch.”

Note that Madison expressly proposed including members of the federal judiciary on a Council to provide a pre-operative clearance for federal legislation. This proposal was rejected, not just once, but on three separate occasions.  The only provision of the Constitution that approached it was the grant of the veto power to the Executive, itself subject to override by two thirds votes of each Chamber of the Congress.

Unfortunately, for truth and for history, the delegates to the Constitutional Convention pledged themselves to secrecy regarding their proceedings.  As a consequence, no general awareness existed amongst the People and the States that this idea – a “super-legislature” that could sit in judgment of the constitutionality of the Acts of the Congress and the laws of the States – had been rejected three times in the considerations of the Convention.  Despite the rejection of the idea of a “council of revision,” delegates did argue that the structure of the Constitution supported the notion that the federal courts would have authority to decide such questions of constitutionality, and the idea of such a power was also the subject of debate in the Ratification Conventions of the States.

I would not want to leave you with the notion that this power, the judicial power to declare an act of Congress void, or to interpret the meaning of the Constitution, was novel and never considered by the Convention that framed the Constitution, or the State Conventions that ratified it.  Rather, it is sufficient to note that there is a history to this question of the power of constitutional interpretation, and to note that wiser minds than mine have disputed that it is the sole or exclusive province of the Courts to do so.

Beyond the veil of secrecy for the Convention, there was also the campaign of propaganda related to the debates in the States over ratification.  That propaganda war, principally consisting of published letters by opposing factions of Federalists and Anti-Federalists, served to educate the People as to the proposed meaning of the Constitution, its purpose, its strengths, its weaknesses and its dangers. 

One Constitutional Convention delegate, Robert Yates, took the Antifederalist position during the debates of the States on ratification.  In his eleventh essay opposing the Constitution, writing under his nom du plum “Brutus,” explained the danger of depositing the sole power of construing the Constitution in the Judicial Branch:

“[I]n their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal.” 

Arguing for the Constitution, and seeking to mollify fears that a power of judicial review would make the Judicial Branch central and powerful to the federal government, Alexander Hamilton expressed the view that, to the contrary, the Judiciary would least likely present threats to the rights and liberties of the people:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, 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 Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Among those wiser minds, in addition to Lincoln, and delegate Robert Yates, Jefferson is particularly notable.  His thoughts on this power of the judiciary and his conclusion of its danger to self-government he expressed in a letter to William Jarvis, written in 1820.  Jarvis had provided to Jefferson a copy of his book, “Republican.”  Having given the book a cursory examination initially, Jefferson chose to address the question of the power of judicial review in his letter of appreciation for the book.  He wrote: 

“You seem … to consider the judges as the ultimate arbiters of all constitutional questions; 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 ‘[a good judge expands his power],’ 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. []

[T]he constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs. The judges certainly have more frequent occasion to act on constitutional questions, because the laws of [private property] and of criminal action, forming the great mass of the system of law, constitute their particular department. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough.

I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”

Still, while maintaining the respect of those who studied the records of the Convention, of the Ratification Conventions and of the public dialogue of the Federalist and the Anti-Federalists, one could yet hold the view that the Judicial Branch did not own the Constitution, nor possess the sole power to construe it, nor the power to declare the Acts of the Congress or of the State legislatures null and void. Ultimately, such a view notwithstanding, the Supreme Court, in a series of decisions, arrogated to itself the power to interpret the Constitution as the final arbiter of its meaning, and the powers to declare federal and state laws unconstitutional.

Professor Howe, in the lectures mentioned above, nonetheless counsels us that we are not the mere pupils of a history drafted and crafted by judges.  Instead, as to the general history of our People, of our government, and of our founding, we have judgment equal in significance to that of judges.  What remains, then, is for we, the People, to consider whether Judge Judith Rogers and her colleagues correctly construed the Origination Clause and correctly applied that Clause to the challenge to the individual mandate penalty under Obamacare.