Essay on Judiciary of the United States
The judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
(1) Supreme Court,
(2) Appellate Courts,
(3) Federal district courts.
In Section 25 of the Judiciary Act federal law could be appealed from state supreme courts to the federal Supreme Court. That provision was, and still is, a great debate.
The first case decided by the Supreme Court concerned the extent of federal power, in Ware v. Hylton (1796), upholding the Treaty of Paris that ended the War of Independence, which provided the boundary of American settlement at the Mississippi River. The major issue of the case, however, was how to deal with the debts owed to the British government. The issue was a Virginia law of 1777 that prevented British creditors from collecting from Virginia debtors.
Supreme Court Associate Justice Samuel Chase determined that the Supremacy Clause of Article VI states that federal government treaties are the supreme law of the land, which justified the debt.
In the case of Hylton v. United States (1796), it concerned the constitutionality of the federal carriage tax. The Constitution provided that direct tax must be apportioned equally among the states. Some states had more carriages than others did. The Supreme Court upheld that the Carriage Tax was not a direct tax, and therefore constitutional.
In the Hylton v. United States case, it provided Congress more power in levying taxes than originally intended by the state that ratified the Constitution.
The issue of limits on the Court’s power to review statutes was the issue in the 1798 case of Calder v. Bull. Associate Justice Samuel Chase stated that while the power of federal government were defined, state governments retained power delegated to them by the People. Chase was a former Republican who turned Federalist in political philosophy. He continued to write that state legislators were not absolute and without control– and:
There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof government was established. An act of the legislature (for I cannot call it a law), contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.
Chase’s opinion set the stage for federal judges to substitute their individual understandings of the “principles” of “free republican government” for the judgments of state legislatures. The legislature may legislate, but it does not qualify as law. The most controversial Supreme Court decision of the 1790s (matching the controversial Supreme Court decision in the ObamaCare legislation), was the 1793 case of Chisholm v. Georgia, claiming the court has jurisdiction over a sovereign state, violating Article III of the Constitution. The case involved a claim that the state of Georgia owed money to the estate of a dead South Carolina citizen for supplies provided during the War of Independence. Georgia refused to submit to the federal court insisting the state had sovereign immunity and it could not be sued without consenting to be sued. Georgia failed to appear to the Supreme Court and so a default judgment was issued. Chief Justice John Jay and Justice James Wilson denied Georgia’s sovereignty claim when it came to matters of the Union. The US Constitution, they held, was the creation of one American people. Justice Iredell denied that the federal court had jurisdiction over the case. Georgia did not allow suits of that nature in its state courts, and federal courts had not authority to interfere. Jurist John Blair ruled that when the states ratified the Constitution, they agreed to suits against states be held in a federal court. Justice Wilson dispelled haughty notions of state independence, state sovereignty and state supremacy. The text of the Constitution’s preamble stated the purpose was to establish justice and to ensure domestic tranquility, providing federal courts the power to resolve such disputes.
In response, Congress proposed, and the states modified, the Eleventh Amendment, which denies federal courts jurisdiction over lawsuits initiated against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
BILL OF RIGHTS
The Federalists had promised republican opponents of ratification that power of federal congress and courts would adhere to the confines of the US Constitution. James Madison led the movement to ratify 12 amendments, of which the first ten were limitations on the authority of the federal government and dubbed the Bill of Rights.
The most important was the 10th Amendment:
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.
Just as the 1st Amendment stated that Congress shall make no law that prohibits freedom of speech, the press, or assembly;guarantees the right to petition; and establishes the right for free exercise of one’s religion – it is all about limitation of federal government’s powers, and the 1st and 10th amendments restricting powers of Congress.
It was a long, hot summer in 1787 when the Constitution was being written in Philadelphia, and George Washington presided over the debates as the presiding officer of the Constitutional Convention. He rarely spoke, at that time being a man of few words, but one would not know this when viewing the length of his Farewell Address as he left the office of President of the United States in 1796. It was a consensus that George Washington would be the first President of the United States during the time of the debate on the Constitution, and perception was that he was a dedicated republican.
George Washington decided, as James Madison recommended, that Alexander Hamilton, General Washington’s former Continental Army aide-de-camp, be the first secretary of the treasury.
Secretary Hamilton suffered the hardships of Valley Forge with Washington and the troops, and knew the result of inadequate funding and shortage of personnel. He was determined to establish a sound financial background combined with good government credit so no American soldier would suffer again what occurred at Valley Forge. Hamilton was an advocate of a strong, well-supplied army that would equate to a strong national defence.
The treasury secretary began the process of establishing a good financial structure. Hamilton had the first Congress assume responsibility for debts incurred by the states in fighting for independence, and persuaded Congress to fund a portion of the debt. Patrick Henry and the Virginia House of Delegates opposed the funding of state debts as unconstitutional. Henry Lee joined the opposition.
Thomas Jefferson, away in France as America’s diplomat, was not present during the writing and ratification of the Constitution, but he was an influential republican voice when he returned.
In 1791, Jefferson joined James Madisonin opposition against Hamilton’s financial measure of creating an American bank, a model of the Bank of Englandthat would manage the government’s debt. Madison surprised Hamilton when he declared in the House of Representatives that the bill was unconstitutional, having supported his appointment as Treasury Secretary. Madison used Article I, Section 8as reference in that congressional power is enumerated and did not have the power to create a corporation or a bank.
Congress passed the bill, nevertheless, incorporating the first Bank of the United States, then President Washington turned to his cabinet that included Edmund Randolph, Alexander Hamilton, and Thomas Jefferson, to determine if Madison was correct about the bill being unconstitutional.
Jefferson responded with affirmation and provided clarification of what the Constitution states and its meaning. He wrote that the underlying principle of the Constitution is that:
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.
Jefferson continued and stated that is the 10thAmendment, not yet ratified, but passed by Congress. Jefferson also stated that upon examination of the list of congressional powers in Article I, Section 8, there was nothing about chartering corporations, much less banks, so Congress did not have the power to pass such a bill. Today, that same issue concerns the power of the federal government controlling health care and refusing state sovereignty and rights to decide about the issue and concerns in each respective state. In addition, the Federal Reserve is not within the powers of Congress, and does what Congress itself is responsible for, through the Treasury Secretary, to handle the monetary affairs of government in its budgeting, payment of debts, and ensuring that paper money is backed with gold or silver. In addition, it is not the responsibility to bailout banks, who are willing to gamble with the people’s money knowing government will bail them out.
Jefferson referenced the elastic clause – the Necessary and Proper Clause in Article I, Section 8 that states that Congress has the power:
To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers [previously enumerated by Congress], and all other Powers vested by this Constitution in the government of the United States, or in any Department or officer thereof.
Supporters of the bank argued that under that clause, Congress could charter a bank.
Jefferson argued again that chartering a bank was not “necessary” to carry out any congressional enumerated power.
Hamilton insisted that powers granted in Article I, Section 8, related to the economy, such as power to regulate trade with foreign countries, power to regulate trade among the states, power to regulate trade with Indian tribes, power to coin money, et cetera.
Jefferson’s decision simply stated that Congress has only those powers expressly delegated to it.
Hamilton’s view was that the US Constitution was a copy of the British system, which he emulated. This confusion on his part was evident in Hamilton’s written contribution to the Federalist Papers.
George Washington, a nationalist, followed Hamilton’s advice and signed the bank bill.
At the time, of the two political entities in opposition were the Federalists, who promoted central power and the Republicans who believed in the unification of states as a united nation, but insisted upon the identified limitations of federal power and all other powers, and authority be delegated to the state governments.
On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text, or invented against it, conform to the probable one which was passed.
What has occurred today, politicians were attempting to do as far back as the days when Jefferson became president. Hardly a generation.
The battle of state rights and its delegated powers has long been debated and contested, and beginning with the 17th Amendment, the federal government has stripped the ability of state governments to limit the authority and power over state sovereignty, a crucial issue in ratifying the US Constitution. Rights and liberties dissolve with the limitation of powers, so government grows in size and scope. [See new guest author Mike Crane’s article]
The party line is that Supreme Court rulings are raw exercises of power whether judges purport to be bound by the original understanding or not, …this idea is promoted in academia, the liberal media, and elite opinion generally. These circles treat references to originalist understandings of the Constitution as either disingenuous or irrelevant. …most people assess Supreme Court rulings according to their policy preferences, along the lines of “I dislike this policy, so it’s unconstitutional” – or the reverse. …
When the Philadelphia Convention of 1787 adjourned from debating the Constitution, a woman was waiting at the door and asked the delegate, Benjamin Franklin, what was decided as to what type of government being created. He replied that it was a constitution for a republic, if you can keep it.
Kevin Gutzman, author, professor of history, and constitutional scholar:
One idea is to create a constitutional council of the fifty states. The council could consist either of the fifty state chief justices or of fifty members elected to represent the states. The council would be given power to review the federal courts’ constitutional decisions. This council could help restore the republican federal government of very limited powers we started off with and undo the unrepublican judgeocracy of limitless powers we have now.
Interesting idea, but would it be an improvement or become as planned, by replacing nine politically motivated advocacy justices with fifty political advocates?
The Supreme Court has ignored the division of powers between federal and state, and also has inserted and provided federal government authority over the private sector that is unconstitutional and the justices appointed are supposed to be experts in the matters pertaining to constitutional law. It is because their personal advocacy and private association and loyalties counter their required tasks and oath of office to perform in the interests of protecting and maintaining constitutional law. Most tragically, members of the US Supreme Court turn to foreign laws and constitutions to make decisions, as well as conform to public opinion over what the Constitution prescribes; and if the Constitution is lacking, instead of going through the legal process of amendments through Congress, the Supreme Court uses decisions to legislate from the judicial bench.
The three branches of federal government, the executive, the legislature, and the judiciary have been corrupted over a long period, more quickly and devastating in the past fifty or more years. Prohibition and the creation of the Federal Reserve under the Wilson administration, the Depression years with FDR, and into the age of making welfare a conceived right under the LB Johnson administration; and in the frontal assault assumed by the Obama administration. Congresses, judiciary, and presidents in between have ignored their oath of office and watered down the Constitution’s original intent. The people have allowed this to happen because since the Great Depression, they have come to realize that government rewards incompetence, laziness, and lack of respect for themselves and others – losing their self-sufficiency that made America strong from the beginning. The People complain about politicians and their corruptible practices, yet we vote for the same type of people among us who refuse or are incapable of true reform that would put the United States back on track and back into the top five power players of the world. Today we are the top five military strengths, and still, despite deep recession, above the economic standards of other nations – but that is soon to crumble like other civilizations because we do not look to history to prevent repeated mistakes. Instead, we refer to historical wisdom and events as “old school” and believe the Flim-Flam Man who promises everything and provides little but misery and broken promises.
Classical education is dead, something that the Founders had that provided the fuel for their wisdom. I mentioned to a co-worker about the classical Greek and Roman literature, and her reply was: “I don’t pay attention to mythology”. I was referring to Aristotle, Plato, Socrates, Cato, Cicero, Marcus Aurelius, et cetera. I liked the woman, so I did not press the fact or have the heart to point out her ignorance, unaware that pagan religion was not what I was referring.
The return to a constitutional republic will not happen without elected officials dedicated to such a purpose and educated to know constitutional law for what it is and not what is to be interpreted or bypassed; and those elected officials will never take office and ensue true reform without the people being aware of what the constitution is all about and what type of candidate they must choose.