By Selwyn Duke
Our Constitution has become a suicide pact.
That’s the view of Thomas Jefferson, expressed in an 1819 letter to jurist Spencer Roane, when he said “If this opinion be sound, then indeed is our constitution a complete felo de se”(suicide pact). The opinion Jefferson referred to is the legitimacy of judicial review, the idea, as he put it, that “gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres.” He warned that accepting such a doctrine makes “the Judiciary a despotic branch” that acts as “an oligarchy.”
That “opinion” has been accepted. The despotism has befallen us. The oligarchy reigns.
“No.
No — I will not abide by the court’s unjust ruling. The Constitution is the supreme law of the land and, insofar as the central government or judiciary violates it, it renders itself illegitimate. As the governor of my state and head of its executive branch, I am charged with the enforcement of its laws. And we will recognize no more unconstitutional juridical or federal dictates.”
(Note: while my main focus here is our much abused judicial review, I’m advocating the same course with respect to all unconstitutional dictates.)
If this seems radical, note that even Abraham Lincoln agreed, saying in his first inaugural address, “[I]f the policy of the government, upon the vital questions affecting the whole people, is to be irrevocably fixed by the decisions of the Supreme Court…the people will have ceased to be their own masters, having to that extent resigned their government into the hands of that eminent tribunal.”
The process I’m advocating here is known as nullification. And should anyone still think it radical or unprecedented, know that we’d only be taking a leaf out of the Left’s book. Explanation?
What do you think “sanctuary cities” are?
They’re places where liberals have decided they’re simply going to resist federal immigration law.
What do you think is happening when states (e.g., Colorado) and leftist municipalities ignore federal drug laws? Nullification is happening.
Yet no matter how egregious, un-American, unconstitutional and despotic the federal or judicial usurpations, the conservative response is typified by what Utah governor Bob Herbert said — feeling oh-so principled, I’m sure — after the federal faux-marriage ruling: “[U]ltimately we are a nation of laws and we here in Utah will uphold the law.” Yes, we’re supposed to be a nation subject to the rule of law.
Not the rule of lawyers.
And our governors are allowing subjection to the latter, feeling noble playing by rules the Left laughs at.
It’s not surprising that revolutionary spirit has been cornered by liberals. The only consistent definition of “liberal” is “desire to change the status quo” — it is revolutionary by definition. In contrast, the only consistent definition of “conservative” involves something antithetical to revolution: the desire to maintain the status quo. Of course, it completely eludes conservatives that today’s status quo was created by yesterday’s liberals. And one modern status quo is to lose culture-war and political battles to the Left. And, boy, do conservatives ever maintain that one. They’re like a guy who goes into a fight, gets poked in the eyes and kicked in the kneecaps, loses, and then the next time still thinks he’s got to follow Queensbury rules.
We hear a lot of talk about “states’ rights.” Ex-Texas governor Rick Perry was a good example of a big talker. But where’s the beef? Merely flapping lips doesn’t sink big-government ships. There have been nullification efforts by state legislatures, mainly regarding federal gun-control law, and many sheriffs across the country have vowed not to enforce such law. And Alabama’s Judge Roy Moore is currently defying a federal faux-marriage ruling. This is laudable, but why are the chief executives MIA? If only we had a governor with the guts of a good sheriff.
We’re meant to be a nation of states, not a nation state. But rights mean nothing if you’re not eternally vigilant in their defense, if you don’t actively stand against those who would trample them. In 2013, Attorney General Eric Holder threatened Kansas with legal action over a new anti-federal-gun-control state law. If the courts ruled against the state, what would Governor Sam Brownback do? Make some “principled” comments about the rule of law(lessness) and then assume the prone position?
This is why I say not one governor is truly qualified to be president: If a chief executive will not oppose federal tyranny while the head of a state government, why should we think he’d oppose federal tyranny once head of the federal government?
History teaches that entities don’t willingly relinquish power; it didn’t happen in 1776 and it won’t happen now. People are generally quite zealous about increasing their power, though. This returns us to the courts’ usurpations. Do you know where the power of “judicial review” came from? It was declared in the 1803 Marbury v. Madison decision — by the Supreme Court.
That’s right: the Supreme Court gave the Supreme Court the Supreme Court’s despotic power.
Of course, unilateral declarations of power are not at all unusual historically. It’s what happened whenever an agent of tyranny — whether it was a conquering king, communist force or crime syndicate — took over. But these despotisms were enforced, as Mao put it, “through the barrel of a gun.” It wasn’t usually the case that the subjects rolled over like trained dogs lapping up lawyer-craft. Oh, it’s not that I don’t see the crafty lawyers’ position. I might like to crown myself Emperor of America, but, should I insist I possess this unilaterally-declared status with enough conviction, I may get a stay in a mental institution. The courts get to dictate to everyone else and spread insanity all the way around.
Perhaps it needn’t be stated, but the power of judicial review isn’t in the Constitution. So is it any wonder that a federal court, concerned about Barack Obama’s comments relating to the judiciary, asked his administration in 2012 to submit a formal letter indicating whether or not it recognized the power? Judicial review, being an invention, is dependent upon the acquiescence of the other two branches of government.
Oh, and what is Obama’s actual position? He believes in the court’s power — when it serves his agenda. Otherwise, he’s willing to ignore court rulings himself, as he did when suing Texas over voter ID in 2013. (In fact, never mind the courts. Obama ignores duly enacted federal law he doesn’t like.)
The lesson?
We can even learn from Obama.
The idea of judicial review is thoroughly un-American. As Jefferson also pointed out, judges are not morally superior to anyone else, having “with others the same passions for party, for power, and the privilege of their corps.” Despite this, he wrote in his letter to Roane, while we’re meant to have “three departments, co-ordinate and independent, that they might check and balance one another,” judicial review has given “to one of them alone, the right to prescribe rules for the government of the others”; moreover, he continued, this power was given to the very branch that “is unelected by, and independent of the nation.” Jefferson then warned that this has made the Constitution “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” And our country is being twisted along with it as patriots twist in the wind.
Jefferson’s position is just common sense. We cannot be a government of, by and for the people if 9 unelected Americans in black robes can act as an oligarchy and impose their biased vision of the law on 317 million Americans. That is not what the Founding Fathers intended.
Nonetheless, most conservatives are waiting for the next election or the next court ruling or the next president to right the ship, but they and their republic will die waiting when remedial action can be taken now. Nullification — when properly exercised, it’s a fancy way of saying “standing up for the law of the land.” Were I a governor, I’d tell the feds to pound sand and that if they didn’t like it, to send in the troops. I might ultimately end up in federal prison, but I’d light a fire and spark a movement — and become a hero and martyr to millions.
It’s waiting there for you, governors, glory and God’s work. We just need a leader, someone with greater passions for principle than “for party, for power.” It’s waiting.
Rise, American hero, rise.
Contact Selwyn Duke, follow him on Twitter or log on to SelwynDuke.com
© 2015 Selwyn Duke — All Rights Reserved
"We the People," Interpret the Constitution.
In my 1997 appeal from U.S. District Court in Washington State, I argued against the constitutionality of federal ownership of unappropriated public lands in Washington State. In that appeal I also argued that the Constitution does not confer upon federal courts the power of judicial review. I stated, Marbury v. Madison, 5 U.S. 137 (1 Cranch 137) (1803), was wrongly decided. The 9th Circuit Appeals Court concluded my argument against the constitutionality of judicial review was merit-less, because I offered no reasoning or case law to support my contention that Marbury v Madison should be overruled.
Seventeen years later, here is my reasoning to support my contention that Marbury v Madison should be overruled.
The common language of the Constitution does not give the Supreme Court the authority to strike down a law as unconstitutional. That authority rests on a theory used in the Marbury v. Madison decision in 1803, of which an unconstitutional oath of office imposed on the judiciary by the Judiciary Act of 1789, was used as the justification for the power of judicial review.
Congress imposed an unconstitutional second oath of office and then with that oath of office the Supreme Court delegated the unconstitutional power of judicial review, to itself. Towit: ” I, _____, do solemnly swear or affirm that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _____, according to the best of my abilities and “understanding, agreeably “to the Constitution and laws of the United States. So help me God. (Judiciary Act of 1789, 1 Stat. 73, Sec.8)
A judge swearing to discharge his duties agreeably to the Constitution of the United States is then defined in Marbury v Madison, the Supreme Court said, “Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime”.
According to Marbury v. Madison, it becomes a crime for a congressman to prescribe this oath and a crime for a justice or judge to take this oath, if the Constitution is closed upon him and cannot be inspected by him , thus, if a justice of judge takes this oath, the Constitution is not closed upon him and must be inspected by him or it will be a crime. This is the unconstitutional power of judicial review.
Under Article VI, Sec. 3 of the Constitution, all United States justices and judges shall be bound by one oath to “support the Constitution”.
The unconstitutional second oath of office in Marbury v. Madison of “understanding, agreeably to the Constitution” and the constitutional oath of office to “support the Constitution” have different meanings. Otherwise everybody who takes an oath of office to “support the Constitution,” which is everybody in government except the president, would have the power to strike down a law as unconstitutional or more commonly known as, judicial review.
The power to “understanding, agreeably to the Constitution” is not a power delegated to the United States, by the Constitution. The power to “support the Constitution,” is delegated by the Constitution.
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.”Since all State employees are bound by oath to support the Constitution, they are prohibited by the Constitution to “understanding, agreeably to the Constitution,” thus, “We the People,” are delegated the reserve power of understanding, agreeably to the Constitution or judicial review.
With this power “We the People,” can force the President, the Supreme Court and Congress to adhere to the common language of the Constitution.
“The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.” —Thomas Jefferson to W. H. Torrance, 1815. ME 14:303
Posted by: Kenneth Medenbach | February 23, 2015 at 06:40 PM