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In every free government, the People must give their permission to the laws by which they are governed. This truly is the benchmark of a free government, and the essential difference between such, and a despotic government. In the former, the nation is ruled by the will of the People, and in the latter, by the will of one, or the few.
As citizens of the United States, it has been our long-established duty to frame our government so that it is friendly to liberty and the equal rights of all people. Doing so tends to nurture and cultivate a great respect for, and love of liberty among our citizens. Alternatively, whenever we, as a People, find government inconsistent with our happiness, it is our fundamental right, and solemn duty, to alter or abolish the Constitution.
To our nation's founders, victory in the American war of secession from the British Empire was not really an opportunity to become a rich and influential world power. Rather, to them, it was the big chance to create a truly free society, liberated from the tyranny, greed, and lust for power that had pervaded the nations of the world. Although they were far from achieving true liberty for all people, they laid the groundwork for future alteration of the Constitution, so as to create a society free from such evils; and, in order to be true to these ideals, it is this type of society, I believe, which me must someday achieve.
Although rarely seen in practice, the Constitution was framed to give supreme power to the people, and our rulers were to possess only that portion of power which was expressly given to them. The first ten amendments to the Constitution, passed in the first congress, were intended to protect not only individuals against federal intrusions, but the States as well. Rights enumerated in those amendments, such as life, liberty, and property, cannot be submitted to a vote or depend on the results of elections; therefore, not even the consent of the People can legitimately abridge them. It is this essential principle, and these essential rights, which must be the basis for any alteration of our compact with our government.
The only way a free government can function, and the only way the People's voice can be articulated to achieve a feasible control of government, is through a process in which decisions are made by the majority. This is not a perfect way of controlling government, but the alternatives, decisions made by a minority, by a few, or by one person, are even worse and are the source of tremendous evil. To ensure justice, majority decisions must be in the best interest of all the people, not just one group; and, as stated above, majority decisions that violate our essential and inherent rights are invalid.
Limitations of this kind can be upheld, in practice, in no other way than through the instrument of the courts of justice, whose duty must be, to declare any and all acts contrary to the apparent meaning of the Constitution, void. There is no position which can be clearer than that every act of a delegated authority, such as the branches of our government, which conflicts with the direction of the compact under which it is exercised, is void. Therefore, no governmental act which is contrary to the Constitution is valid. To reject this principle would be the same as declaring that the assistant is greater than the director, that the representatives of the People are greater than the People themselves, and that those who are entrusted with delegated power are authorized to do not only what is allowed, but also what is prohibited.
It is the role of courts to clearly declare the sense of the law; and if they should have or develop a tendency to exercise individual will rather than a judgment of the law, the consequences would be potentially catastrophic to our freedom. Liberty has everything to fear from an alliance of the judiciary with either of the other branches.
As stated in a previous number of these papers, I firmly believe that the form of government which holds those that we entrust with power to the highest level of responsibility to their constituents, is the best designed for freedom. In such a government, the people are sovereign, and their opinions, understandings and motivations are the benchmarks of every public law. When this is no longer the case, the nature of a free government has truly changed, and despotism is not far from ascending to reality.
The preventive measure that was intended to ensure a responsibility of the judiciary to the People is stated in the Constitution's article respecting impeachments. Judges are subject to be impeached for misconduct by the House of Representatives, and tried by the Senate; and if convicted, they may be removed from office and declared ineligible for holding any other office. Although important to our overall discussion, the inadequacy of this clause in regards to the judicial branch will be best examined in a subsequent paper.
At the time of our nation's founding, opponents to the Constitution feared that the central government would always claim that their actions were created, designed, and carried out for the good of the nation; and because there would be no true judge between the government and the people, the rulers would always act as a judge for themselves. Experience has shown us that their fears were quite possibly correct. Rarely have we heard the central government admitting error; rarely have we seen Congress impeach a judge they have approved; and rarely have we seen the United States Supreme Court find usurpations by any branch of government to be unconstitutional. Rather, the court system routinely, and almost habitually, rules on the side of the central government, and declares to be unconstitutional those very powers that were intended to be reserved to the States or to the People!
In other words, the judicial branch, either independently, or in collusion with another branch, has become nothing more than a facilitator of an ever-increasing centralized power. As Thomas Jefferson warned in the Kentucky resolutions of 1798:
"If the federal government were ever to become the sole judge of the limits of its own powers through its own courts, then there would eventually be no limits to those powers and the Constitution would effectively become a dead letter."
It is of the utmost importance, that we carefully examine the nature and extent of the judicial power of our country, because this branch is meant to be the final guardian of our liberty!
In examining the judicial power of the United States, and its actions over the last century, it is evident that is has leaned strongly in favor of the central government. It has regularly given such an explanation to the Constitution so as to favor an expansion of power in the central government, as well as an extension of its own jurisdiction. Although it may be impossible to completely prevent such actions by the judiciary in the future, it is our duty to reform this essential branch of our government in a way so as to reduce such actions as much as possible.
These problems, I believe, have arisen not simply from unfit judges, but more so, from an improper organization of our government. The tendency of the judiciary to support and promote greater federal power is evident from three main considerations:
1. The Constitution itself strongly promotes such action.
2. The judges themselves are self-interested.
3. Precedent is abundant, and justifies their actions.
Great power, and an inherent inclination to rule in favor of increasing federal power, enables the judicial branch to re-create the government into almost any form they please; and it is my intention to first examine the above three items, which are the cause of such a situation, in my next paper, on December 15, 2005.
In the spirit of liberty and prosperity,