June 2005

I’m sure most people are, by now, aware of the Supreme Court decision where they the govt can take away your home to give it to another private party for “public” use. It reeks and my friend Greg describes why the judiciary has gotten out of control. Sorry for the formatting.

———- Forwarded message ———-
From: Greg Spaulding

__Clint__ wrote:
> But hasn’t congress also taken more
> power for itself as well? I’d think it’s not just the judiciary. The
> fed govt has been overreaching compared to how it operated in 1900….

(NOTE: This is a long one, but once I got started I felt the need to get this down in writing, so you get to be the beneficiary of it hehe)

That is very true; Congress has also overstepped its constitutionally defined bounds by a lot. In fact government from top to bottom in America has grabbed power far beyond what was intended by the founders. However that’s another bigger discussion ;), but there are some tie-ins. The thing I find so dangerous about the judiciary is their unaccountability and distance from the citizenry combined with the way they can use their decisions to have the affect of law. With the other two branches we have elections, term limits etc. There is a way for the citizenry to replace them at the ballot box. That mechanism makes it where their decisions are much closely tied to their constituency. No one elects a federal judge and they have no constituency, they also serve for life. The original intention was to keep judges above political concerns so that they could concentrate on arbitrating cases based on the intent of the law and strictly interpreting the law within the bounds of the constitution.  Unfortunately from the beginning (back to Marberry vs. Madison a very political decision), this has not been the case. Many of the founders were concerned about this danger.

A compounding problem is how judges are looked at as some kind of “wiser” person, almost infallible, and when the Supreme Court rules, that is it… period. These are men just like any other, with faults, ambitions, egos, and political and other biases. When they make a mistake the citizenry has no recourse other than to hope a future court rules in a way that undoes that bad decision. That rarely happens as rulings carry precedent into the future and live on as if law. I guess we could also pass constitutional amendments to counteract each bad decision, but that’s a long and difficult process that is rather rare in our history. Congress tried impeaching judges in the past but failed, so they have taken that as precedent and no longer challenge the judiciary. By having the final say over any act of the other two branches, along with their unaccountability to the citizenry, the judicial branch has set itself up, by it’s own decision outside of the constitution, as the supreme branch of the government. The only check upon it by the other branches is the choosing of who its members are, and you can’t even truly know at the time of appointment if the new member will be the type of judge you think he will
be. For instance Supreme Court justice Suiter was thought to be a conservative judge when appointed by George H. W. Bush. However he has turned out to be one of the most liberal judges on the court. If the only check upon the judicial branch is speculative at best, then we’re in trouble.

The judicial branch itself was never intended to have broad decision-making power. Those powers were specifically granted to congress, as the representative body expressing the will of the majority, and in the executive that carries out that will. The judicial branch was intended to be the arbiter of disputes and to make very narrow interpretations of specific law based on the intent of the constitution.  In fact, I find the constitution sets up the judiciary as almost a child of the congress. The definitions of the legislative and executive branches in the constitution are very explicit, but for the judiciary all we have is this:

“Article 3 – The Judicial Branch
Section 1 – Judicial Powers
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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Section 2 – Trial by Jury, Original Jurisdiction, Jury Trials
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.  The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;
and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3 – Treason
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

That is it for the definition of our court system in the constitution, the details are left to congress.

Here is an example of the broader problem of the overreach of power committed by our overall system of government. Part of what the judiciary over our history should be doing, as part of the checks and balances, is reign in the other branches when they overstep the bounds set for them in the constitution. However what the courts have been doing is granting the other branches broader powers than were intended and defined by the constitution. One of the nastiest cases (the name I can’t remember right
now) was decided earlier this century. It is the case that allowed the federal government to regulate almost all aspects of our lives under the guise of “interstate commerce”. The constitution grants the federal government the power to regulate commerce when it has national effect, when it involves more than one state. This was to set up a consistent
economic model on the national level so that trade between say VA and MD is the same as trade between VA and FL or NC and PA. I’m a little fuzzy on the details of this case but the gist is in the earlier part of the last century, I think the great depression times, congress regulated the trade of grain between states because supply of grain was much greater than demand. It was causing a deflation in grain prices on the national level and putting farmers out of business. Congress decided to regulate how much grain a farm could produce (or maybe a percentage of their land they could produce grain on), and would put fines on farmers that violated this regulation. There was a guy that was a grain producer but it was a farm and he also had a bunch of animals and such. He produced the amount of grain regulated by congress for sale, but he used the additional land to produce grain that he didn’t sell but used to feed his animals. He was fined, and challenged the fines in court. He didn’t sell his grain outside of the state, and the excess grain he used for his animals also never left the state. His challenge was based on the premise that since his grain never left the state, congress did not have the right to regulate his grain usage, as it was not a party to interstate commerce. Here’s what the constitution says from Article 1 Section 8, Powers of Congress: “… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

The Supreme Court ruled the in this case that because the man was using his own grain to feed his animals that he was not buying that grain from the market. In his local market he could buy grain that potentially came from out of state. So his use of his own grain causing him not to buy potentially out of state grain was affecting interstate commerce and thus could be regulated by congress. This decision opened the door for a big power grab by the federal government to regulate anything and everything simply by inventing whatever claim it could that the activity affected “interstate commerce”. No longer do we have the right and freedom to enter into whatever economic agreement we want without the government looking over our shoulder. This includes everything from entering into labor agreements, purchases or trade of products, or even using products
we produce on our own. This is an example of the mechanisms the court uses to expand government power outside of the constitution, and how it changes the meaning of the constitution in a way that the citizenry has no recourse.

Now move ahead to yesterday’s decision on imminent domain and the government’s ability to confiscate your property for whatever uses it sees fit. It fits the same power-grabbing pattern as this “interstate commerce” case and I find it just as dangerous. The Fifth Amendment states that “… nor shall private property be taken for public use, without just compensation.” The founders intended, and it has always meant, that
“public use” meant exactly that, public use. A school, a courthouse, roads, government buildings, those are all uses that are then owned by the public, to all of us. Now “public use” means anything a government body can dream up. So your family has owned a mom and pop grocery store down town for four generations. Safeway or Giant wants to build one of their gigantic supermarkets where your grocery store is because it’s just a
great location. Now the argument can be made that the new store will provide more jobs, services and tax revenue in that location than your small grocery store and thus would serve the “public use”. The government can now use the Fifth Amendment for the opposite purpose of what it was written for, to prevent the government from confiscating private property. They come in, force you to sell your property to them at a price they determine, and then sell it to Safeway at probably a profit, so that Safeway can build their supermarket. That is YOUR property to do with as you see fit. You don’t want to sell it. You want your small grocery store there, and that is that. Well not any more as the Supreme Court by decree has now given the government a power the constitution specifically denied it from having, thus repealing part of the Fifth Amendment.

The question becomes, why would the judicial system want to go around granting more power to the other branches of government as it has. This is where you have to start speculating and here is what I think. The judicial system knows that it holds the power it does over the other two branches. Every law by the legislature or action by the executive is under its review, reinterpretation and veto. They have the final say and thus are the final holders of power in America. Any power they grant to the other branches becomes their power by proxy. They are not elected, they serve for life, and it has thus far been nearly impossible to remove them from their benches. This is what we call a Judicial Oligarchy with subordinate branches that are elected in a way to keep the allusion of a republic, particularly when the constitution is ignored. I don’t think we are quite there yet, maybe not even half way. Nor do I think it is something that can’t be reversed at this point in time, but that’s the direction we are headed in, and we were warned by the founding fathers (see Thomas Jefferson quotes below).

The main enabler of this problem is the ignorance and complacency of the citizenry. As a nation we’ve had it good for so long that we take our system of government for granted. Our people have a horrible understanding of our history and founding documents. Our children are not being taught the revolution, constitution and early part of our history like they should. These things should be revered and aggressively defended by every citizen. It’s been hundreds of years since we had to deal with the kind of oppression people are experiencing at this moment in countries like North Korea, Sudan, Cuba and Iran. Every citizen across this entire nation should be enraged to the point of near revolt over this decision. This decision allows our government to act in tyrannical ways like those enumerated in the Declaration of Independence. We went to war over this kind of shit. The way the people of this nation act reminds me of the frog story. If you put a frog in a pot of water, and slowly heat it up, the frog will sit there all happy while it cooks to death. We loose a right here, some freedom there, the government grabs new powers here and there, and nobody notices. Some people are pissed at the time, but that subsides. Few people look at the consequences of the big
picture, and I don’t really like what that big picture is!

Thomas Jefferson’s warnings:

Letter to Abigail Adams, September 11, 1804: “The opinion which 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, would make the Judiciary a despotic branch.”

Letter to Edward Livingston, March 25, 1825: “One single object… [will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation.”

Letter to Monsieur A. Coray, October 31, 1823: “At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large;
that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance.”

Letter to Charles Hammond, August 18, 1821: “The germ of dissolution of our federal government is in the constitution of the federal Judiciary working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

Letter to Thomas Ritchie, Dec. 25, 1820: “The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet, and they are too well versed in English law to forget the
maxim, ‘boni judicis est ampliare jurisdictionem.'”

Letter to Thomas Ritchie, Dec. 25, 1820: “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.”

What can I say?

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Sooooooooooo many examples of funniness there…

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