Constitution 101: No One Should Be Above the Law

John Pickering

John Pickering(1737-1805) was a US district court judge for New Hampshire, appointed by George Washington in 1795. He was the first of thirteen federal judges to have been impeached. During his tenure he was suspected of conducting his duties while intoxicated, and after a length of time, he was removed from court by impeachment in 1804. At the time, and according to the Judiciary Act of 1801, circuit judges could replace an incapacitated district judge temporarily. The rule was designed, however, in case of illness or injury that could prevent a district court judge from performing their duties. The Sixth Congress passed the act at the end of John Adam’s administration. It was overturned by the Jefferson administration, which considerably increased the Federal judicial establishment of the United States. It was considered a last ditch effort of the Federalists Party under John Adams to retain control of the judiciary.

Some of Judge Pickering’s friends tried to cover the fact that he was a drunkard, hypochondria, and hydrophobic. The Federalists advised him not to resign his office, so he remained on the bench until 1804. In 1803, Thomas Jefferson brought the matter to the attention of the House of Representatives, but the Senate trial did not take place until March of 1804.

…the President, Vice President and all civil officers of the US, shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other high crimes and misdemeanors.

That statute had been borrowed from English law, as many points of the US Constitution had been when it was drafted. Its legal meaning included disability that included physical, mental, or psychological impairment. Pickering’s lawyer had insisted that insanity was Judge Pickering’s problem, not inebriation, and so was neither a high crime nor a high misdemeanor. Pickering was known to be deteriorating mentally fighting against hypochondria symptoms. He was deathly afraid of water and would never cross a river even by bridge. The argument against Judge Pickering’s lawyer was that the statute did not state “high” misdemeanor, just misdemeanor. In addition, insanity is an impairment of mental faculties, therefore it was not a valid argument. Thus, Judge Pickering was removed from office when found guilty at the impeachment hearing/trial.
John Marshall

During the impending case against Judge Pickering, the Federalist Supreme Court under Chief Justice John Marshall challenged the Jefferson administration’s decision of Marbury v. Madison. The case affirmed that federal courts could review congressional legislation and lecture elected officials.

William Marbury was part of the judiciary in the District of Columbia, nominated by John Adams, and the Senate confirmed his appointment. The Secretary of State, later Chief Justice John Marshall, failed to deliver Marbury’s signed commission, so he could not officially take office. Marshall’s successor was a Republican, so as the Secretary of State refused to deliver Marbury’s commission, focus was upon Marshall’s incompetence. James Madison succeeded John Marshall as Secretary of State, but still Marbury’s commission was not delivered, so he sued Madison in the Supreme Court.
During the ratification of the Constitution, Federalists had stated that Federal courts would have power of judicial review and Republicans, like Patrick Henry, hoped they would use the power.
In the federal system there were two kinds of courts: state courts (general jurisdiction) and federal courts (limited jurisdiction). Before a federal court gets involved with a case, it must decide whether the case falls under constitutional jurisdiction.
Marshall argued that to deny Marbury his commission was unconstitutional, and so was the Judiciary Act of 1789, which provided Madison a writ of mandamus.
Samuel Chase

Another big event of the period was the case of Justice Samuel Chase. Republicans accused Chase, a Federalist, of abusing his office in the interest of bias politics. The main argument was that the Sedition Act prosecution of James Callender, a journalist who had written negative articles against John Adams, demanding his impeachment.

Associate Justice Chase’s behavior in the trial was against his judicial oath, which, part, reads:

I will faithfully and impartially discharge and perform all the duties incumbent on me.

Justice Chase had –

…selected the victim, announced his intentions to punish him for his atrocious and profligate libel, procured his presentation by the grand jury, refused to excuse jurors who confessed their bias against the accused, and identified himself with the prosecution, and took every means to discredit and disable counsel for the defense.

It was not the first time that Chase had performed in such unacceptable behavior as an Associate Justice. The House of Representatives believed Chase should be removed from office through impeachment. His guilt was proven beyond any doubt that he conducted himself in a prejudiced and partisan manner that made him unfit for the duties of his office. The Senate acquitted him on the pretense that he had not committed treason, bribery, or other high crimes and misdemeanors.
The gist of the Constitution was English law, and the word high was a term associated with high office and with political misbehavior, not just social misbehavior. As when a president lies under oath and provides false testimony in the case of the impeachment trial of William J. Clinton.

In the late 18th century, Commentaries on the Laws of England by Sir William Blackstone (1757) was the foundation of American legal education, who wrote:

…the first and principal [high misdemeanor] is the ‘mal-administration’ of high offices, as are in the public trust and employment. This is usually punished by the method of parliamentary impeachment.

As English laws high crimes and misdemeanors pointed out, it refers to the cases of judges mislead their sovereign by unconstitutional opinions and attempts to subvert the fundamental laws, and introduce arbitrary power.

Justice Chase did commit high crimes and misdemeanors, just as William J. Clinton did in the 1990s. Jefferson concluded that the impeachment clause was useless and did not prevent judicial misbehavior, just as it does not apply to the executive office today, because politicians in Congress either do not understand the law or fail to act upon it.
Later Jefferson wrote:

…they [federal judges] consider themselves secure for life; they skulk from responsibility to public opinion, the only remaining hold on them. … A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.

The Chase acquittal set the precedent that a federal judge may disobey their oath because it is not an indictable criminal defense by ignoring or rewriting a statute or the Constitution, and no repercussion is presented. Just as Justice Ruth Bader Ginsberg in an Egyptian TV interviewdenounced the Constitution as outdated and inapplicable to the changing world – she violated her oath of office. Why is she a Supreme Court Justice if she does not believe in the Constitution of the United States?
Did she lie to Congress during her appointment interviews?
She certainly lied when she took her oath of office. To my knowledge she was not even reprimanded. Above the law she is sworn to protect?
The US Constitution is NOT against human rights.
So what is Justice Ginsberg talking about?
Constitutional law does not suit Justice Ginsberg because it does not suit her personal advocacy and her political avenues.
The Marshall Supreme Court used the Chase case as precedence in future cases. The Fletcher v. Peck case of 1810 is a good example of injustice and transgression against constitutional law.
Federal judicial power to supervise state judiciaries was established with Martin v. Hunter’s Lessee.
In the Philadelphia Convention, it was proposed that Congress have the power to veto state laws it judged unconstitutional. The Convention decided to have a federal government with limited powers instead of a national government with unlimited power. However, because of the 10thAmendment, all states who had joined the Union had conceded that the US Constitution and its amendments was the law of the land; but state governments could, through passed legislation and governor signature could add to or include regulations and laws that pertained to their states and the will of the people.
The Constitution created a federal system where state governments, through elections, were held responsible by the people of the states. That was replaced by a group of lawyers, appointed by the president, given lifetime tenure without checks and balances and does not uphold their oath of office. The 10th Amendment is too often ignored.
In school textbooks, Chief Justice Marshall is made to look the hero, based upon the concept that Supreme Court decisions, not the Constitution, are instrumental in the rule of law.
Thomas Jefferson

Thomas Jeffersonwas the first president to have seen the misuse of constitutional law or its circumvention through the power of the Supreme Court. He certainly was not the last.

To Jefferson, law was –

…the framework of rules by which the people agreed to be governed; a judge’s rile was simply to apply the clear meaning and original understanding of the Constitution. [The Imperial Judiciary, K.C. Gutzman, p. 98]

Marshall’s way of “interpreting” or reading into constitutional law, as the Federalists did, continues in the judiciary system, and decisions made by the Supreme Court (or lesser courts) have become a means to establish legislation illegally through advocacy rather than original purpose.
Marshall redefined “contract” in Dartmouth College v. Woodward (1819) and the 11thAmendment in Cohens v. Virginia (1821). He narrowed the meaning of the 11thAmendment in the 1824 case of Osborn v. Bank of the United States, and in McCulloch v. Maryland.
However, Justice Marshall, in the cases Cherokee Nation v. Georgia (1831) and Worcester v. Georgia(1832), sided with the Cherokee against Georgia stating that Indian (now Native Americans) treaty rights must be respected by the state government; yet the federal government constantly did not honor their treaties. The latter case presented the truth that Native American (American Indian) tribal reservations were sovereign.
Marshall and President Andrew Jacksonconsidered nullification and secession by state governments to be treason. Marshall’s arguments derived from McCulloch v. Maryland, where he and Jackson stated that the United States had been created by one American people, not by separate states. Federal power was supreme. That decision and the tariff tax  of 50% almost caused a war because Jackson was prepared to invade South Carolina, and since the route could have been through Virginia, that state militia was prepared to meet the troops of Jackson in resistance.
Henry Clay

Senator Henry Clay arranged a compromise, where tariffs were slowly reduced. Senator John C. Calhounof South Carolina would not be hanged for treason for supporting his state, but Jackson would not change his attitude upon the matter. The South Carolina Convention met and repealed the nullification ordinance and the issue ended.

The last decision that Marshall made was Barron v. Baltimore(1833). It was a case where the city of Baltimore, Maryland, altered the flow of water and caused silt to build up and reduced the value of John Barron’s Wharf.
The 5thAmendment limited federal government, and was important because there was fear of the new government’s accumulated powers during the ratification of the Constitution. During the course of that decision, Barron v. Baltimore, Marshall conceded that the Bill of Rights did not affect the powers of the state, only powers of federal government. Barron was told in his case that the state court must decide for compensation for his property. John Marshall left office in 1835.
President Jackson wanted United States funds removed from the Second Bank of the United States, but the Secretary of Treasury, Louis McLane, refused, citing a law that required the treasury to deposit funds into the bank. Jackson fired him and looked for someone who would ignore statutory requirements, and that man was Robert B. Taney.
Robert B. Taney

Jackson rewarded Taney for his cooperation by appointing him as replacement for John Marshall, and has been considered to be one of the worst justices in United States history.

In the Charles River Bridge v. Warren Bridge case that involved a 1785 grant given to the Charles River Bridge Company to build a bridge connecting Boston to northern towns and the power to collect tolls.
In 1828, a new bridge was authorized to be built by the Warren Bridge Company and collect tolls necessary to pay for construction. Once the costs were covered, the bridge was turned over to the Commonwealth of Massachusettsand it would become a toll-free bridge. The Charles River Bridge Company sued Warren Bridge Company because a free bridge would not allow a Charles River Bridge to collect tolls.
In Taney’s opinion, he stated that grants by the public must be favored …

The object and end of all government is to promote the happiness and prosperity of the community by which it is established, and it can never be assumed that the government intended to diminish its power of accomplishing the end for which it was created.

The country had advanced since 1785 and the toll bridge, once paid for, should become free for citizens to use. Taney wrote …

The country was continually advancing in numbers and wealth and new channels of communications are daily found necessary, both for travel and trade, and are essential to the comfort and convenience and prosperity of the people. … And when a corporation alleges that a state has surrendered for seventy years its power of improvement and public accommodations, in a great and important line of travel …the community has a right to insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the state to abandon it does not appear.

The Charles River Bridge Company contract with state government was not considered binding, and since Supreme Court decisions are rarely reversed, it has been the tradition to abide by earlier decisions as the law. The government made a mistake in creating the contract, and then when it was seen as a mistake, it did not abide by it nor did the Supreme Court insist that it be either fulfilled or an agreement of restitution be made with the contracted party, in this case, the Warren River Bridge Company.
As in the case of Roe v. Wade, where all cases concerning abortion are referred to in its decision, when in fact the Supreme Court should have turned the case over to the state judiciary to decide, for the state government is closer to the People, who should make the ultimate decisions concerning social issues. Even abortion rights activists agree that the decision was a terrible one, and the original person in the complaint has been quoted as saying if it was to happen all over again, she would not have presented it before the Supreme Court. The Supreme Court does not makes its decisions upon the Constitution, but primarily by previous case decisions – which means if the previous decisions were not according to constitutional law, the problem continues indefinitely. To use previous cases as a guideline is one thing, but not as the basis for any decision concerning a present case brought before the Supreme Court – or any court, for that matter.
Chief Justice Taney was also part of the Dred Scott v. Sanford case involving the slavery issue that became increasingly debatedwith new states and territories adding to the Union and the issue of new states being allowed to be slave states. The Dred Scott v, Sanford case was over the debate that freed slaves were citizens of the United States, therefore Scott could not bring his case before the federal court, but instead to the state judiciary.
Taney wrote that Scott remained a slave because Congress had no power to exclude slavery from federal territory. [Undoing Marshall, Undoing the Union, K.C. Gutzman, pp. 118-119]
Taney also wrote:

Slaves were property protected by the Constitution and to prohibit citizens from taking them into federal territory was a violation of the 5thAmendment’s prohibition of deprivation of property without due process of law. The provision of the Missouri Compromise purporting to exclude slavery from the remaining portion of the Louisiana Purchase north of Missouri’s southern border was therefore unconstitutional. [Note: The Missouri Compromise line is not the same as the Mason-Dixon Line]

Benjamin R. Curtis

Taney also stated that Scott’s case was in the hands of Missouri law. If Missouri considered him a slave, he was a slave; therefore not a federal issue.

Justice Benjamin Curtisdisagreed wholeheartedly:

When a strict interpretation of the Constitution, according to the fixed rule which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under a government of individual men, who for the time being have power to decline what the Constitution is, according to their own views of what it ought to mean.

That statement reflects greatly upon the federal government today and the Supreme Court – its perceptions and advocacy versus the articles and amendments of the US Constitution.
In the Senate, hostilities over the slaver issue turned violent when Representative Preston Brooksbeat Senator Charles Sumner of Massachusetts on the Senate floor with a cane for mocking Senator Andrew Butler of North Carolina.
It was an event that became a hay-day for the Press …

  • Indianapolis Locomotive[Democrat], May 23rd, 1856 … Freedom of speech should be guaranteed to all public men in debate on public questions.
  • Boston Atlas[Republican], May 23rd, 1856 …the mouths of the representatives of the North are to be closed by the use of Bowie-knives, bludgeons, and revolvers.
  • Boston, Bee [American], May 23rd, 1856 … An outrage so gross and villainous was never before committed within the walls of the Capitol.
  • Boston, Courier[Whig], May 23rd, 1856 … The member from South Carolina transgressed every rule of honor which should animate or restrain one gentleman in his connections with another, in his ruffian assault upon Mr. Sumner. There is no chivalry in a brute. There is no manliness in a scoundrel.
  • Portland, ME, Advertiser, [Republican], May 23rd, 1856 … How long will the people of the Free States tamely submit to such outrages?
  • Detroit, Free Press[Democratic], May 23rd, 1856 … It was an atrocious speech. But its atrocity did not warrant the personal assault upon him by a South Carolina member of the House of Representatives.

Albany, NY, Evening Journal[Republican], May 23rd, 1856 … For the first time has the extreme discipline of the Plantation been introduced into the Senate of the United States. [referring to the practice of beating slaves]

New York Times [Republican], May 23rd 1856 … The most fastidious reader will search in vain for anything which could give the slightest color of just provocation for the brutal outrage of Brooks. [Note that the NY Times was not always influenced by the Democrats and Unions]

New York Tribune (Republican], May 23rd, 1856 … No meaner exhibition of Southern cowardice – generally miscalled Southern chivalry — was ever witnessed.

More links to newspaper commentary on the incident is at Secession Era Editorial Project – The Caning of Sumner (May 1856), Furman Liberal Arts University.
Laurence M. Keitt

If it were not for Lawrence Keitt, a South Carolina congressional member brandishing a pistol, the cane beatingwould have ended before it did. Keitt drew a concealed pistol and yelled Let them be! The rescuers were stopped and the bludgeoning continued.

Mr. Sumner was no small man, standing at 6 feet, 4 inches tall, and was so strong, in order to escape the merciless beating of Brooks’ cane, he snapped off the bolts that held his desk to the floor. Brooks did not stop, despite Sumner staggering in the aisle, blinded by his own blood, collapsed onto the floor. Sumner was taken by surprise.
It was over the remarks made by Sumner, who claimed that Andrew Butler of South Carolina had written and supported the Kansas-Nebraska Act of 1856, which opened the door to slavery expansion, had claimed that Butler had written the act to satisfy his “harlot” of slavery and even mocked Butler’s speech impediment by saying:

He cannot open his mouth, but out there flies a blunder.

Preston Brooks, a nephew of Butler, survivor of a duel and prone to violent settlement of quarrels, went to the desk of Sumner, accompanied by Keitt and Henry Edmundson of Virginia, and stated:

Mr. Sumner, I have read your speech twice over carefully. It is libel on South Carolina, and Mr. Butler, who is a relative of mine.

It was then that Brooks began to cane Sumner, who had just risen from his desk – forcing him underneath and pinned beneath the desk.

Sumner suffered head trauma that would cause him chronic pain and post-traumatic stress disorder for the rest of his life, spending three years convalescing before returning to his Senate seat.

Preston Brooks

The national reaction to the incident was just as divided as the slavery issue. It has been thought that congressional members began carrying concealed weapons to protect themselves. Brooks, of course, was cheered by folks from the South, especially in his home state of South Carolina. It was viewed as legitimate retribution for Sumner’s libel and upholding the honor of Brooks family. South Carolina citizens sent Brooks new canes and one had the phrase “Good job” engraved upon it. The University of Virginia’s Jefferson Literary and Debating Society sent a gold-headed cane to replace the one Brooks broke.

There was, of course, a motion to have Brooks expelled from the House of Representatives, but it failed to get the majority votes. Brooks resigned his seat on July 15th, 1856 and claimed that he meant no disrespect to the Senate of the United States by attacking Senator Sumner. He also stated that if he had intended to kill Sumner, he would have used a different weapon.
Brooks was tried in a District of Columbia court for the incident, and he was convicted of assault with no jail sentence, just a fine of $300. In a special election, he returned to office on August 1st, 1856, and elected to a new term of office later in 1856. Brooks died from croup in January of 1857, before his new term began. Brooks’ accomplice, Representative Keitt, attacked and attempted to choke Representative Galusha Growof Pennsylvania in 1858, for calling him a Negro driver.
Such violent actions are unheard of today in Congress, but false accusations and libel continue regardless. Maybe that would be reduced if they made honor dueling legal again. Yet, as in the case of Brooks, legislators and government officials too often are above the rule of law.

As 1860 approached, President Buchanan became unpopular because he failed to keep his campaign promises concerning several issues, the most important being a fair trial in Kansas for sovereignty issues and among those pro-slavery. The Republicans stood a good chance of winning the election in 1860, but it was also as sure that the Union’s future as the United States was questionable. Abraham Lincoln would spend his tenure as president trying to keep together and ultimately reuniting a divided nation.

Image Credit: All images are from Wikipedia, fair use policy.