Contemplating Independence Day

Sitting here on this Independence Day, 2005, contemplating freedom and liberty—and yes, independence—thoughts turn to the greatest threat to all of those values, the United States Supreme Court.

The Supreme Court, not al qaeda, is the biggest threat to our liberty. America has always fended off its external enemies, although you might not agree with that as you read about the failed effort, or the abysmal lack of effort, to control out international borders. However, the Supreme Court is still the worst threat because,

Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding. [Justice Louis Brandeis, dissenting in Olmstead v. U. S. (1928)].

The Supreme Court never seems to go through a term anymore without further encroaching on our liberty. One of the most recent examples, Kelo, et al. v. New London, Conn., et al, decided June 23, 2005, greatly expanded the power of local governments to seize your house, your church, your small business to give to another private individual for “economic development” [with no other "public purpose" than to allow the government to collect more taxes].

But Kelo is not the only example. The Supreme Court has given the federal district courts the power to levy taxes without following the legislative process [Missouri v. Jenkins, (1990)]; in a long line of cases it has severely restricted the right of citizens to profess their religious beliefs in public places; the Court has given greater rights to criminals, thereby diminishing the right of crime victims to get justice [See: Miranda v. Arizona (1966) and the line of cases which followed]; it has given foreign terrorists the right to sue in U.S. District Courts, and thereby the right to join U. S. domestic criminals in the sport of frivilous lawsuits [Rasul v. Bush (2004); and it has given itself the power to re-write the Constitution. [See: Scalia’s dissent in Dickerson v. U. S. (2000)].

The Dickerson case represents the Court coming “out of the closet” and doing openly what it had been doing covertly for years—amending the United States Constitution. The author likes to use the example of Roe v. Wade, (1973) because it is a perfect example of the Court admitting it has no authority in the Constitution, or even in its own prior decisions, to rule in favor of a woman’s right to have an abortion, but doing it anyway. It just made it up. Justice Blackmon wrote:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, in the penumbras of the Bill of Rights, in the Ninth Amendment or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.

The careful reader will notice that after admitting there is no right of privacy in the Constitution, Blackmon does NOT cite any Court cases supporting his view. Instead he makes vague reference to “certain areas or zones of privacy” enunciated by other justices [somewhere—we aren’t told where] and to “penumbras of the Bill of Rights” [whatever that means]. From this weak springboard, he leaps to the radical conclusion that the Constitution guarantees a woman’s right to have an abortion. [Radical in this instance refers to the drastic departure from settled law, not necessarily implying that abortion is per se radical--although to some it may be].

Another reason the author likes to use Roe as an example is he doesn’t have a dog in that fight. He doesn’t have a uterus so he will never become pregnant. His wife is beyond her childbearing years so he doesn’t ever expect to get anyone pregnant. Therefore, the legal right to have an abortion is a non-issue for him, except that Roe is proof that, as Chief Justice Warren Berger said, “We’re the Supreme Court and we can do what we want.”

Several constitutional amendments are currently under consideration to try to cope with bad decisions of the Court: defining marriage as being between one man and one woman and prohibiting desecration of the American flag. On June 30, 2005, Representative Earnest Istook, (R-OK) and Sanford Bishop (D-GA) proposed a constitutional amendment restoring religious freedom. The amendment, similar to the one introduced by Istook in the 107th Congress with 88 co-sponsors, has 100 co-sponsors this time around. Legislation is also pending to reverse the effects of Kelo v. New London.

But it won’t be enough, even if successful.

It will never be possible to amend the Constitution fast enough and often enough to keep up with an illegitimate, activist Supreme Court. Of some ten thousand amendments proposed during the history of this country, only twenty-seven have been ratified and become law. If several amendments compete for the public’s attention, it diminishes the probability that any one of them will be adopted. We should instead attack Marbury v. Madison, the 1803 case whereby Chief Justice John Marshall seized, without any authority in the Constitution, the power to overrule an Act of Congress.

We should all unite in a single amendment to take away the Supreme Court’s de facto power to amend the Constitution. [De facto is used in the legal sense of “a past action or state of affairs which must be followed for all practical purposes, but is illegal or illegitimate.” –Black’s Law Dictionary]. Marbury v. Madison resurrected the power of judicial review (the power to consider and overturn Acts of Congress) just a few years after the framers of the Constitution specifically rejected giving that power to the Court.

Most of the people who met in convention to adopt the Constitution were still alive and active in politics and the action by Marshall was met with outrage by Thomas Jefferson and others, almost leading to Marshall’s impeachment.

What was an illegitimate seizure of power for the Court in 1803 is accepted as legitimate and necessary today. Left unchecked, it will, as Jefferson predicted, eventually lead to the end of Representative Democracy. The end may not be that far off.

Taxation Without Representation is Tyranny

How many of you voted for a delegate to represent you on the United States Supreme Court?

Chief Justice John Marshall wrote, “An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation.”

The Supreme Court seems to have forgotten that. In Missouri v. Jenkins, 495 U.S. 33 (1990) the Court affirmed the right of federal courts to order legislatures to levy taxes. But it didn’t stop there. The Court went on to say if the legislature is reluctant (legislators do have to face the voters, after all) the federal district courts can levy the tax directly, bypassing the legislative process.

There are also hidden taxes. When the federal courts require local governments to build new, more “humane” jails, for example, the argument is not about whether the court has jurisdiction to do that [it doesn’t - the Constitution confers no authority for the federal courts to impose taxes, directly or indirectly by requiring some action that forces a legislative body to raise taxes to carry out the court's order] but whether a prisoner’s case can be certified as a class action for the benefit of all prisoners. Local governments must raise taxes to comply with that “unfunded mandate.”

Direct and hidden taxes levied by the federal courts are separate from, and in addition to, taxes levied by Congress. Over the past ten years, federal taxes enacted by Congress have averaged 19% of Gross Domestic Product (GDP), according to the Congressional Budget Office (CBO). The director of CBO testified earlier this year that if entitlements continue to expand at their present rate, by the middle of this century the tax to pay for three entitlements - Social Security, Medicare and Medicaid - will be 21% of GDP, up from 4.1 % in 2004.

So what can we do about it?

To believe that that you can successfully “lobby” the average heroin addict to give up his habit voluntarily, without drastic intervention by some outside force, is naïve. To believe Congress or the Court will restrain itself from imposing taxes goes beyond naiveté to delusional. For there to be meaningful tax reform and/or limited government, there must be some draconian action by the people to impose limits that Congress – and the Supreme Court - cannot avoid.

Two-thirds of the states, by a simple majority vote of their legislatures, can demand that Congress convene a convention at which the state representatives can propose amendments to the Constitution. We can limit Congress’ power to tax. We MUST rescind the federal court’s unconstitutional, self-given power to tax. And we MUST prevent the Supreme Court from unilaterally, without any authorization in the Constitution, further amending the Constitution.

One example of a Supreme Court amendment is Roe v. Wade. Before Roe, there was no constitutional right to have an abortion. After Roe, there was a constitutional right to have an abortion. Play whatever semantic games with that you like, that is a constitutional amendment.

Look at the tortured language written by Justice Blackmun:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, in the penumbras of the Bill of Rights, in the Ninth Amendment or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty” are included in this guarantee of personal privacy.

That convoluted logic is from Roe v. Wade.[i] The court admits that it can find no right of privacy in the Constitution; the Court could not even find any solid precedent in its own prior rulings that extended a “right of privacy.” It had to resort to a mushy amalgam of prior decisions, some nebulous “penumbra of the Bill of Rights” (whatever that means), and the common law to find the “right of privacy;” from that shaky springboard, the Court leaped to the right of a woman to have an abortion. In other words, the Court “amended” the Constitution to guarantee a woman’s right to choose.
[i] 410 U.S. 113, 152 (1973)

Taming The Supreme Court

THE SECOND AMERICAN REVOLUTION—ONE WAY OR THE OTHER [PART 3]

“Today's casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”
--Missouri v. Jenkins, 495 U.S. 33, 58-59 (1990). [Justice Kennedy, joined by the Chief Justice, and Justices O’Connor and Scalia, concurring in part and concurring in the judgment].

Americans fought a Revolution over the issue of “taxation without representation;” however, the United States Supreme Court seems to have forgotten that; it gave the federal courts the power to compel legislatures to raise taxes and, if the legislatures refuse, (because they have to face the voters) the federal district courts now have the power to levy the taxes on the citizens without any legislative action. The citizens of Kansas City, Missouri were not consulted, they did not have the due process right to legal notice and a chance to be heard, they were not a party to the suit which led to the court order. Nonetheless, they are paying the four-fold tax increase.

PLAN OF ACTION

By a simple majority vote in two-thirds of the state legislatures, the states can demand that Congress call a convention for offering amendment to the United States Constitution.[1] The first order of business at such a convention should be stripping the United States Supreme Court and the subordinate federal courts of their self-given power to levy taxes directly on citizens bypassing the legislative process.

(2) THE PROPOSED AMENDMENTS—REFORM OF THE UNITED STATES SUPREME COURT

Amendment XXXVI – Prohibiting the Article III Courts From Imposing Taxes

Sec. 1. The sole authority to “lay and collect Taxes, Duties, Imposts and Excises” is vested in Congress by operation of Article I, § 8 of this Constitution.

Sec. 2. The Article III courts, including the United States Supreme Court and the inferior courts created by the Congress pursuant to the authority of Article III, shall have no jurisdiction to levy Taxes, Duties, Imposts or Excises.

Sec. 3. Article III court shall not have jurisdiction to hear or rule in any case, controversy, petition or complaint whose object or effect would directly require that any legislative body impose Taxes, Duties, Imposts or Excises.

Sec. 4. Article III courts shall not have jurisdiction to hear or rule in any case, controversy, perition or complaint whose object or effect would be to compel any action by any legislature which would have the indirect effect of requiring the legislature to impose Taxes, Duties, Imposts or Excises.

Author’s comment: This is a vital, but incomplete, remedy to the Court's new-found power to tax. It will have little permanent effect merely to take away the Court’s power to impose taxes without also taking away its ability to “amend” the Constitution. See, post.

There is nothing in the Constitution which grants the Court the power to tax. The Court assumed that authority over time, just as it assumed the authority to overturn an Act of Congress after the Constitutional Convention specifically rejected giving that power to the Court.[2] Therefore, the states must explicitly take away the Supreme Court’s power to hand down decisions which become de facto amendments to the Constitution.

(De facto is used in the sense of "a past action, or a state of affairs which must be accepted for all practical purposes, but is illegal or illigitimate. . . . it is contrary to de jure, which means rightful, legitimate, just, or constitutional." --Black's Law Dictionary, 5th ed).

Amendment XXXVII – Article V is the Exclusive Method to Amend the Constitution

Sec. 1. The exclusive power to amend the United States Constitution is contained in Article V of this Constitution.

Sec. 2. Any decision of the United States Supreme Court which has the effect of amending the Constitution shall be void ab initio.

Sec. 3. The President of the United States, exercising the Executive Power of the United States, shall have no obligation to enforce such a decision, nor is the Congress, or citizens generally, obligated to comply with the decision.

Sec. 4. This amendment, standing alone, shall be prospective and not retrospective; PROVIDED, HOWEVER, See Amendment XXXIX post.

Amendment XXXIII – Limits on Supreme Court Interpretation of the Constitution

Sec. 1. The Supreme Court of the United States is a creation of the United States Constitution and derives its authority solely from the United States Constitution.

Sec. 2. When interpreting the Constitution, the Court shall be bound by what is contained within the “four corners” of that document and its lawful amendments proposed and ratified pursuant to Article V.

Sec. 3. The Supreme Court of the United States shall be cognizant of the fact that it is interpreting the Constitution and Laws of the United States of America; constitutions, laws, or court interpretations by any foreign court, prince, potentate, power, government or principality are irrelevant to the interpretation of the United States Constitution.

Sec. 4. The Supreme Court of the United States shall not look for guidance in foreign or international law or "opinion polls" whether foreign or domestic.

Sec. 5. This amendment, standing alone, shall be prospective and not retrospective. PROVIDED, HOWEVER, See Amendment XXXIX, post.

Amendment XXXIX – Overturning Supreme Court Decisions

If either House of Congress shall determine by a majority vote that any decision of the United States Supreme Court, whether past, present or future, was or is a de facto amendment that changes the substance or intent of the Constitution and its lawful amendments as written, that House may consider legislation restoring the law to the status quo ante. If after consideration two-thirds of that House shall agree to pass the Bill, it shall be sent to the other House, by which it likewise shall be considered, and if approved by two thirds of that House, it shall become Law.

Author's comment: We need these “legitimate” constitutional amendments, meeting all the requirements of Article V of the Constitution in their proposal and ratification, to prevent the Supreme Court from unilaterally and unlawfully “amending” the Constitution without following the process for amending the Constitution. When Court “interpretations” fundamentally change the meaning or effect of the Constitution, the interpretation is a de facto amendment. Before Roe v. Wade[3] there was no constitutional right for a woman to have an abortion. After Roe v. Wade there was a constitutional right for a woman to have an abortion. Roe v. Wade amended the Constitution.

AUTHOR'S PERSONAL NOTE: Whenever I comment on Roe v. Wade, I am compelled to state that I have no opinion on the merits of that decision. I do not have a uterus, and I never expect to become pregnant, my wife is beyond child-bearing age; whether or not abortion is or should be lawful is a non-issue for me. Roe v. Wade does, however, provide a worderful example of the Court "amending" the Constitution by finding new rights in the Constitution that are not actually there.

This blog is not about abortion and I don’t want it to deteriorate into an argument about abortion. My thesis is that if the decision in Roe v. Wade has merit, it should have been enacted by the legislature and not by the Supreme Court.

Throughout the history of the United States some 10,000 amendments have been proposed to the Constitution. Only thirty-three have been voted out of committee to be considered by the full Congress; only twenty-seven of those have been ratified and become part of the Constitution. It will be a Herculean task to generate interest in a convention to propose several amendments.

But in looking at that task, a 2002 CBO study predicted that federal taxes will consume 40 percent of GDP by 2075; the CBO director testified earlier this year that "the federal government's spending for Medicare and [the] Medicaid program would together exceed 21 percent of GDP by 2050 (compared with 4.1 percent in 2004) and total [Federal] spending would be about 33 percent of GDP."[4] Add to that number the 10.1 percent state and local governments tax and many citizens alive today will see taxes of 43 percent of GDP!

We are on a collision course with chaos. The longer we wait to "fix" the problem, the more painful the solution will be.


___________________
[1] U. S. Const., Art. V
[2] See: Marbury v. Madison, 5 U.S. 137 (1803)
[3] 410 U. S. 113 (1973)
[4] Gingrich, Newt. "Conservatism at the Crossroads"What's New With Newt, Vol 3, Issue 5, (May 2005) [For original source, in mind-numbing detail, go to http://www.cbo.gov/ ].

Reining in the Power to Tax

THE SECOND AMERICAN REVOLUTION - ONE WAY OR THE OTHER [PART 2]

“An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation.” Chief Justice John Marshall, writing in M’Culloch v. Maryland (1819).

The states, meeting in convention pursuant to Article V of the Constitution, should consider:

(1) PROPOSED AMENDMENTS. REFORM OF CONGRESS

Amendment XXVIII. Limiting the Power of Congress to Tax

Sec. 1. Congress’ authority to lay and collect taxes, duties, imposts and excises, granted by Article I of this Constitution, shall not exceed [x] percent of the dollar amount of annual Gross Domestic Product (GDP).

Author's comment: The x amount could be determined by having economists calculate what it would require to carry out the federal government’s enumerated and mandated duties. A target amount might be in the neighborhood of 12%-15% of GDP.

Medicare, Social Security, Medicaid and other welfare programs are not mandated by the Constitution. The states should determine what would be a reasonable—and sustainable—level of spending for all entitlements, giving priority always to the constitutional mandates such as providing for the common defense—including securing the borders. States may want to consider whether, over a period of 70 years or so, Welfare and Social Security would be phased out entirely. The author chooses a 70 year phase-out because that has been the approximate period of time that Scoial Security and Welfare have taken to creep in and [within the foreseeable future] overwhelm the federal budget.

Sec. 2. In the event of a state of war, declared by the Congress in accordance with the Constitution, or in the event of a national emergency not involving war, a majority of the legislatures of the several states shall have the authority to waive compliance with this amendment for the duration of the war or for a term of years in order to meet the emergency.

Comment: By having to go to the state legislatures for waiver, we send an undeniable message that the federal government is one of enumerated powers and the powers not enumerated in the Constitution belong to the states or to the people (See: Amend. X – Bill of Rights).

Sec. 3. Congress shall not circumvent the intent of this amendment by imposing mandates on the several states for which Congress does not provided sufficient revenue from the Federal Treasury to carry said mandates into effect

Amendment XXIX. Retiring the Public Debt

In order to retire the public debt of the United States, Congress shall enact a temporary surcharge of 1% of GDP, collectable pro rata from the different segments of the economy which make up the GDP, to be used solely for the purpose of accelerating the payment of the principal of the public debt until said debt is paid in full. Regular debt service, including payments to principle, shall continue to be made from the general budget until the public debt is retired.

Amendment XXX. Simplification of the Tax Code

Sec. 1. The tax code shall be used solely for raising revenue to pay for government services.

Sec. 2. The tax code shall not be used for “social engineering” to bring about social change or what Congress may see as a “desirable outcome,” however desirable such change or outcome may be.

Amendment XXXI. Term Limits on Legislators

Sec. 1. Legislators elected to serve under the provisions of Article I of this Constitution shall be limited to serving four terms in the House of Representatives or two terms in the Senate during their lifetime.

Sec. 2. Legislators who serve terms in both the House and the Senate shall be ineligible to serve more than ten years total service.

Amendment XXXII. Term Limits on Congressional Staff[i]

Sec. 1. Persons serving on the staff of a member of the House of Representatives or of a Senator may not serve more than ten years cumulative service in any combination of paid and volunteer service to a House and/or Senate member after that member is elected to office.

Sec. 2. Staff of members of the House of Representatives or the Senate who are prohibited by term limits from further service in that capacity may at their option, and provided vacancies exist, transfer to the Civil Service without loss of seniority or benefits. PROVIDED, HOWEVER, this amendment confers no special privilege other than the right to transfer. Members of the Civil Service who shall have transfered under this provision shall be subject to the same rules and discipline as any other civil service employee.

Sec. 3. Staff members may not circumvent the intention of this amendment by lobbying, advising or consulting with any member of the House of Representatives or Senator, whether as Civil Service employee or as a private individual, for a period of five years next after their legislative service ends.

Sec. 4. Nothing in this amendment shall be construed to prohibit a former staff member from running for public office, or serving as a member of the House of Representatives or as a Senator if elected or appointed to that office.

Amendment XXXIII. Financing Federal Election Campaigns

Sec. 1. Contributing money or service to political campaigns is a form of political speech and shall not be infringed.

Sec. 2. Each contribution having a value of one hundred dollars or more shall be listed and filed within 60 days of its receipt in the office of the Secretary of State and such filings shall be open to public inspection during all hours that the office is open to the general public.

Sec. 3. Within sixty days next preceding any primary or general election any reportable contribution shall be filed with the office of Secretary of State within seven calendar days of its receipt.

Amendment XXXIV. Balanced Budget Amendment

Comment: In order to address the complete problem and not just part, concurrently with the above- proposed amendment, the states should impose a Balanced Budget Amendment, perhaps modeled on the 102nd Cong. Senate Joint Resolution 18 sponsored by Sen. Paul Simon. See: http://www.cbo.gov/showdoc.cfm?index=4938&sequence=0 testimony of Robert Reischauer, Director, Congressional Budget Office.

Article I of the Constitution, setting forth Congress’ powers, contains inter alia,

"The Congress shall have the Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.”
The father of the Constitution, James Madison, said “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”

While exceeding the grant of power in the Constitution to spend money "on objects of benevalence" on the one hand, there is one area where Congress has blatantly ignored one of the duties mandated by the Constitution. Historically, control of a country’s international borders has been the sine quo non of a sovereign nation. Therefore, an amendment should clarify and demand:

Amendment XXXV. Securing Our National Borders and Ports of Entry

Congress’ power to levy taxes to provide for the “common Defense” includes the duty to secure our national borders and ports of entry and to take whatever steps are necessary, including the use of the military, to prevent unlawful ingress or egress into or out of the country.

Amendment XXXVI. Advice and Consent of the Senate on Presidential Appointments

Sec. 1. Whenever the President of the United States shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court and of the inferior courts pursuant to his lawful authority under Article II, § 2, the names of said appointees shall be presented on the floor of the Senate not later than ninety days from the date the Senate is notified of their appointment.

Sec. 2. An appointee brought before the Senate shall be confirmed or rejected by a majority of Senators present. There shall be no minimum number of Senators who must be present provided a quorum was present when the Senate began conducting business on that day.

[To be continued. Tomorrow: "Taming the Supreme Court"]


[i] If Congresspersons are subject to term limits it is essential to also term limit their staff. Professional staff who are permitted to serve indefinitely would develop an “expertise” that may overwhelm freshman congressmen and senators and defeat the whole purpose of term limits: i.e., to get fresh perspective into the lawmaking process and to get lawmakers to go back home and live with the laws they created (and often exempt themselves from obeying).

The Second American Revolution--One Way Or The Other

“An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation.” Chief Justice John Marshall, writing in M’Culloch v. Maryland (1819).

When some Gibbon of the future writes The Decline and Fall of the American Empire[i], he will mark the beginning of that decline as the administration of Franklin Delano Roosevelt. Ann Coulter, in her book Treason[ii], outlines the Socialist impulses of Mr. Roosevelt and his top advisors, which included Soviet spy Alger Hiss. This author remembers as a child sitting with his family in a semi-circle facing the radio, listening to Roosevelt’s “fireside chats.”

In later life he would talk about the reverence Roosevelt was accorded, jokingly relating to friends, “in my family the Trinity was God the father, John L. Lewis[iii] the Son and FDR the Holy Ghost.” The great mass of people who revered Roosevelt most likely would not have known at the time what a Socialist was - and would not have cared if they were to learn he was one. However, they do know now about the tax burden Socialist policies and the expansion of the federal government cause.

The author’s generation, born before World War II, will be the last to remember the American Republic as it was before Roosevelt started down the Socialist path, before the United States Supreme Court seized power and corrupted, perhaps forever, the democratic process—and before Congress discovered that people were so gullible it could bribe them with their own money! Americans who came of age during or after the tenure of Chief Justice Earl Warren (1953-1969) will have no personal memory of what it was like to vote for congressional representatives who actually made the laws we live under, and who made reasonably restrained decisions about spending other people’s money.

A detailed examination of the Roosevelt Administration is beyond the scope of this essay, which will focus on what we must do to slow the decline of America. Historian Edward Gibbon cites five reasons the Roman Empire declined, decayed and died:

Divorce. Intact, traditional families are essential to the welfare of society;
Taxes. Profligate spending on welfare programs and entertainment for the masses;
Hedonism. The pursuit of pleasure and rising levels of violence in sports;
Armament. Excessive war preparation when the real threat was internal decadence;
Religion. The decay of religious faith and the elevation of form over substance.

One need not be a serious scholar (or an alarmist) to see the similarities in modern day America.

TAX REFORM/LIMITED GOVERNMENT PROPOSAL

To slow the decline of America, top priorities must be to curtail Congress’ taxing authority and to stop the Supreme Court from unilaterally, and without any authority in law, amending the Constitution—including the amendment giving the federal courts the power to tax!

The 10th amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Notwithstanding that prohibition, the federal government has grown until it would not be recognizable by the framers of the U. S. Constitution. The state governments must limit the size and power of the federal government by using the legal means provided to them in the Constitution.

This essay presents a method to begin the process of tax reform and limiting the size of the federal government. It is intended to encourage readers to demand that the legislature of their state use its Constitutional power, granted by Article V, to petition Congress to call a convention where the states could propose amendments to the United States Constitution.

To believe that the average heroin addict will voluntarily give up his habit without some drastic intervention by an outside force is naïve. To believe Congress is going to restrain itself from spending money goes beyond naiveté to delusional. For there to be meaningful tax reform and/or limited government, there must be some draconian action by the people to impose limits that Congress cannot avoid. The essays which follow over the next two days will outline proposed amendments to curtail Congress' taxing power and will also address the abuses being perpetrated by the United States Supreme Court along with some proposed solutions.

It will require extremely harsh action by the people to rein in both Congress’ fiscal “reign of terror” and the oligarchic Supreme Court—both of whom have elevated themselves to a permanent ruling class, out of touch with the people they rule. Article V contains the authority to amend the United States Constitution:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which in either Case, shall be valid to all Intents and Purposes." [Emphasis added]

Note the language, if two thirds of state legislatures petition Congress, Congress shall call a convention to propose amendments. It is not optional: “shall” in law means it is mandatory. The beauty of having the states petition Congress to call a convention is it can be done by a simple majority vote of two-thirds of the legislatures rather than a two-thirds vote of Congress (which would not be possible if the effect was to ration the money Congress has become addicted to).

Forward-thinking Americans must use the tools the Constitution gave them to begin that Second American Revolution. Failure to do so will inevitably lead to a violent revolution when the federal courts add their power to tax to the 40% tax burden Congress will impose by 2075 ( according to a Congressional Budget Office study). We may see in our lifetime the fulfillment of that "power to destroy" Marshall warned about in 1819.
_______________
[i] Edward Gibbon wrote a multi-volume The Decline and Fall of the Roman Empire
[ii] Coulter, Ann. Treason: Liberal Treachery from the Cold War to the War on Terrorism, Crown Forum (2003)
[iii] President, United Mine Workers Union (1920 to 1960)

The Supreme Court Seizes Power - Part 2

Marshall had a problem: He knew the Court had no enforcement powers. He also was aware that Thomas Jefferson and his former boss, John Adams, were bitter political rivals and Jefferson was none too fond of Marshall; he knew if the Court issued a mandamus, ordering James Madison to deliver Marbury’s commission, the president would likely instruct Madison to ignore it. Marshall, ever the shrewd lawyer, decided to make a virtue out of necessity. He would give Jefferson what he wanted—he would not issue the mandamus—but he would do it in a way that grabbed power for the Court. He would invent judicial review.

Knowing he could not rule against the president, he needed to figure out a way to estaablish that the Court had jurisdiction to rule on such matters, and to overturn an act of Congress.

Ruling on the "constitutionality" of the law was not necessary to determine the outcome. Marshall could simply have said that with the separation of powers, and the checks and balances specifically enumerated in the Constitution, he had no power in mandamus to compel the president to do anything. But while that was true, saying that would not have served his purpose—to expand the Court's power.

In a three-part analysis, Marshall said Marbury had a right to his commission; he said Adams’ “signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an instrument which is complete.” Secondly, Marshall opined that if Marbury had a right to the commission, then the laws of the country must provide him a remedy. It was in the third part that he got tricky. Marbury had asked the Court for a writ of mandamus to compel James Madison to deliver the commission, signed by Adams, that Madison was holding.

By misdirection that would make a slight-of-hand magician feel proud, Marshall cited a precedent that did not exist: He appears to have referred to a “case” which was a blend of several cases; even in the aggregate, the cases did not give him the precedent he was claiming. But he said it did.

The “case,” which he never named, did give him part of what he wanted; it/they also had some insurmountable problems that, if acknowledged, would have been fatal to Marshall’s cause. He took what he wanted and, like modern Supreme Court Justices, conveniently ignored the parts that were not helpful. Marshall never named the case; in all probability, it was not “a” case but a group of Court actions known as the “pension cases.” (It was customary then, as now, to name any cases you cite as precedent).

Having determined that there was a right to the commission, and the laws afforded Marbury a remedy, Marshall framed the third part of the analysis by asking, was the remedy a writ of mandamus from the Supreme Court? Marshall then went into a Machiavellian reading of the Constitution’s grant of power to the Court, finding nothing in the Constitution itself granting the Court the power to issue a writ of mandamus under its original jurisdiction. Marshall further noted that Congress has power to set rules and regulations for the Court’s appellate jurisdiction; Marshall said the Judiciary Act of 1789 giving the Court mandamus power under its original jurisdiction was unconstitutional.

The Constitution granted the Court original jurisdiction (cases filed directly in the Supreme Court) only in “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party.” [Const. Art.3, sec. 2]. A case filed in any court other than the Supreme Court, then appealed to the Supreme Court, comes under the Court’s appellate jurisdiction.

This was a master stroke of clever lawyering. Marshall was saying, in effect, that to avoid a writ of mandamus directed to the president, which the Court could not have enforced anyway, the Court had to find that the law passed by Congress was beyond the Congress’ power. The Constitution granted the Court no such power; therefore, a law that attempted to grant that power was in violation of the Constitution, i.e. was “unconstitutional.”

This was quite a novel idea, and more than a little disingenuous, given the federal courts, including the Supreme Court, had been accepting the authority of the Judiciary Act, and issuing mandamus under that authority, for years.

Marshall also ignored the fact that the pension "case" that he had just relied on in his mandamus discussion appeared to raise the same jurisdictional problem he faced in Marbury. Whichever mandamus action one considers, whether the one brought by Attorney General Randolph or the one brought by the veteran Chandler, each was an original motion in the Supreme Court seeking a writ of mandamus directed to an executive official. The Court accepted those cases and issued a ruling. Marshall could not have been ignorant of the fact that the jurisdictional posture in those cases seemed to be identical to the one in Marbury.

Thomas Jefferson was furious.

With the furor over that ruling, and other alleged misconduct by the Court, (Associate Justice Samuel Chase was impeached by the House of Representatives and was the subject of removal hearings in the senate) Marshall, in fear of impeachment, essentially admitted that judicial review was not necessary under our system of law. Marshall suggested that Congress could just re-pass any law the Court found unconstitutional. He also offered to abandon judicial review altogether if Congress would give its pledge not to impeach him.

The senate, by a sizeable majority, voted against Chase. However, they could not muster the two-thirds vote necessary to remove him. Marshall, seeing that they could not remove Chase, and believing now that Congress could not impeach him either, withdrew his offer to abandon judicial review.

Marshall’s legacy is an imperial Supreme Court that is now busy writing its own Constitution by issuing “interpretations” which are de facto “CONSTITUTIONAL AMENDMENTS.”

[Note: To add a comment, click on “comments” below]

The Supreme Court Seizes Power

It all started with the Supreme Court’s unlawful grab for power in Marbury v. Madison.

The present day "news junkie" who follows the political bickering in Washington D.C. would have felt very much at home reading about John Marshall’s judicial coup d’etat foisting off judicial review on the country. The maneuver had everything to do with partisan politics and, incidentally, a little to do with how the courts would exercise power in the future.

On the first day of law school, most first-year students learn about Marbury v. Madison (1803) and the concept of “judicial review” which flows from it. (Judicial review is the process whereby the Court can review an Act of Congress and rule that the Act is “unconstitutional”).

Marbury is introduced on the opening day of law school, I suspect, for two reasons: (1) it is the concept which defines where modern courts get their power; and (2) law school professors want to begin “brainwashing” their students before their students learn enough law to say: “Wait a minute, Marshall can’t do that! He has no authority—and he has a conflict of interest."

Nothing in the Constitution gives the Supreme Court the power of judicial review. On the contrary, the men who wrote the Constitution had considered and rejected giving that power to the Court. Justice Felix Frankfurter, writing in W.Va. State Bd. of Ed. v. Barnette (1943) reminded the Court:

The framers of the federal Constitution might have chosen to assign an active share in the process of legislation to this Court. They had before them the well-known example of New York’s Council of Revision, which had been functioning since 1777. . . . But the framers of the Constitution denied such legislative powers to the federal judiciary. They chose instead to insulate the judiciary from the legislative function. They did not grant to this Court supervision over legislation.

In the election of 1800, Thomas Jefferson defeated John Adams; Jefferson’s party also took over Congress, inflicting on the Federalists a defeat from which they never would recover - but the Federalists weren’t done yet.

Between the time Jefferson was elected and when he was sworn into office in March, the lame-duck Federalists set out to make Jefferson’s life as miserable as possible. Adams hastily filled the vacant position of Chief Justice of the Supreme Court with one of his own men, appointing John Marshall, his Secretary of State, to fill the post. Now Marshall was both Secretary of State and Chief Justice for the remainder of Adams’ term.

The Federalists rammed legislation through Congress overhauling the court system, creating new judges and another Act creating new magistrates; Congress decreed that with the next vacancy on the Supreme Court the number of justices would be reduced from six to five. Jefferson thus would be denied the chance to appoint a Supreme Court justice whenever the next vacancy occurred.

Against this background of political shenanigans, William Marbury was among the last minute appointments to be a federal magistrate. He was confirmed and Secretary of State Marshall scurried to get Marbury’s commission signed by the president; then Marshall affixed the Great Seal of the United States and tried to get all of the commissions delivered before Jefferson was sworn in the next day. Alas, so many appointments. So little time. Marbury’s commission could not be delivered.

Jefferson ordered his new Secretary of State, James Madison, to withhold delivery. Marbury filed suit in the U.S. Supreme Court to force Madison to deliver the commission. The case was styled Marbury v. Madison.

By now, John Marshall was just the Chief Justice of the United States Supreme Court. He stopped being Secretary of State when John Adams left the presidency. But in the Marbury case, Marshall would be ruling on the legality of his own actions back when he was Secretary of State, preparing Marbury’s commission. The person (but not the office) of the Chief Justice was an eyewitness and a participant in the case before the Court! That’s about as clear a conflict of interest as any judge may ever find himself in.

To put that in a modern context, an American citizen named Yaser Hamdi was captured on the battlefield in Afghanistan. Hamdi was armed and was fighting alongside the Taliban against the U.S. and the Northern Alliance. He was brought back to the U. S., confined to a Navy brig in South Carolina, and held as an enemy combatant. Hamdi sued Secretary of Defense Donald Rumsfeld charging unlawful detention.

Let me pose a hypothetical:

What if Rumsfeld had been appointed by President Bush to be the new Chief Justice of the Supreme Court while that case was pending? Rumsfeld would now preside over the Court and rule on whether his actions, as Secretary of Defense, were proper in holding Hamdi without a judicial hearing. Would Rumsfeld’s conflict of interest be any more outrageous than Marshall’s presiding over a case about himself as Secretary of State?

If there is any difference at all, Marshall’s conflict of interest was even greater than Rumsfeld’s in my hypothetical: Marshall was already the Chief Justice of the Supreme Court at the same time he was Secretary of State performing the act that was the basis of the suit. Rumsfeld would only be ruling on the action of one of his subordinates in a very large organization, whereas Marshall ruled on a case in which his own personal actions while Secretary of State were at the heart of the suit.

But that conflict of interest is only the beginning: Marshall’s convoluted logic, and the “magical” use of highly questionable legal precedent in the Marbury case is a feat of legerdemain worthy of David Copperfield - or Houdini - as Marshall seized power for the Court AND escaped impeachment.

(To be continued)

Tomorrow: Marbury v. Madison

[Note: To add your comments, click on the word "comments" below]