Previously, I wrote a post similar to this one, only with a more ‘snarky’ bent to it (you can find it here). If you will permit me to re-visit my argument, I would like to present it again — only, this time, in a much more serious and mature manner.
The Founding Fathers intended for the Judiciary to be the weakest of the three branches of our government. However, the Anti-Federalist, in their great wisdom, saw it as the most dangerous threat to our Constitution. Jefferson was especially vocal in his warnings:
In 1789 Thomas Jefferson warned that the judiciary if given too much power might ruin our REPUBLIC, and destroy our RIGHTS!
“The new Constitution has secured these [individual rights] in the Executive and Legislative departments: but not in the Judiciary. It should have established trials by the people themselves, that is to say, by jury.”
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.” (1820)
“…the Federal Judiciary; an irresponsible body (for impeachment is scarcely a scarecrow), 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 from the States, and the government of all be consolidated into one….when all government … in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated. (1821)
“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 legislative and executive also in their spheres, would make the judiciary a despotic branch.
“…judges should be withdrawn from the bench whose erroneous biases are leading to dissolution. It may, indeed, injure them in fame or fortune; but it saves the Republic…”
Today, we are witnessing the effects of this continual encroachment upon the Rights of the People and the authority of the Legislature and the Executive:
A ‘judicial insurrection?’ Well, if form and function define, then the actions of these lower courts would certainly seem to fit the definition of an ‘insurrection.’ Therefore, I suppose it would be proper to start referring to their lawless actions in this manner. If nothing else, it would serve to frame the actions being taken by these rogue and lawless courts in the proper light — at least where the general public is concerned.
But it is not enough to make such an unsupported statement and assume the argument has been won — even if the assertion does rest on definition. Therefore, I propose we take a serious layman’s look at the issue at hand. We start with Article I, Section I of the U.S. Constitution:
Article I, Section 1
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
OK, I’m not a lawyer, but then, the Founders never intended to leave the parsing of the Constitution to the hands of a self-appointed elite, whether they call themselves lawyers, judges or otherwise (their words, not mine). Therefore, taking the plain meaning of the language at face value, we must conclude the following:
1 — All means all, and that means everything.
2 — Legislative powers means the ability to create law, or anything carrying the weight of law.
This means all authority to create laws or anything carrying the weight or effect of a law must come from:
3 — shall be vested in a single Congress of the United States, an elected and, therefore, accountable authority. This means one (1) body, not many.
Doing the logical math here, this means the Congress and not the President by ‘executive order,’ nor any ‘bureaucracy’ can have constitutional authority to make law or anything carrying the weight of law. Continuing to do the logical math, we arrive at this startling conclusion:
ALL BUREAUCRACIES ARE UNCONSTITUTIONAL ON THEIR FACE!
Since the bureaucracies have been placed under the Executive, and since these bureaucracies issue ‘rules and regulations’ carrying the weight of law, then the Constitution says that the Constitution must be amended first, before the legislation creating these agencies can be deemed lawful. Which brings us to Article II, Section I of the U.S. Constitution:
Article II, Section 1
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
From a plain reading of this language, we can conclude that:
1 — The Executive Power, meaning all executive power (which is what ‘the’ indicates here: a single entity) is vested in…
2 — A President of the United States, a single person, elected and, therefore, accountable authority.
Doing the logical math here, we can conclude that the President has all authority over the Executive branch of the government, as well as the proper domain of ‘executive’ actions, since he alone holds the authority to execute that executive power.
At this point, I think it prudent to make sure we all understand what the Founders meant by, ‘executive.’ Going to the Webster’s 1828 Dictionary of the English language, we find:
EXEC’UTIVE, adjective egzec’utive. Having the quality of executing or performing; as executive power or authority; an executive officer. Hence, in government, executive is used in distinction from legislative and judicial. The body that deliberates and enacts laws, is legislative; the body that judges, or applies the laws to particular cases, is judicial; the body or person who carries the laws into effect, or superintends the enforcement of them, is executive
At this point, I will remind the reader that the Founders said each branch of our government, the Legislative, Executive and Judicial, are equal in their authority to determine what is and what is not Constitutional (as are the States, an oft forgotten check in our system). Therefore, we need go no further to make my case in this issue:
Since the system of bureaucracies is — on its face — unconstitutional, and since all these agencies have been illegally placed under the Executive branch, the President has the Constitutional authority, nay, duty, to declare these bureaucracies to be unconstitutional and bring them to a sudden and permanent end!
However, given the corrupt state of our society and, therefore, the resulting government, I suspect this will not be the end of the matter. Those who are vested in the perpetuation of our current corruption will continue to object. Thus, I continue. Turning to Article III, Section I of the U.S. Constitution, we find:
Article III, Section 1
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 Behaviour,
Immediately, we see that the Constitution implies that a judge can only hold their position in times of ‘good behavior.’ Unfortunately, we are not provided with any clarification as to what this means or what the remedy for bad behavior may be, leaving us to assume it means impeachment. However, the Constitution defines impeachment, and it does so in terms that make it reasonably clear that those terms are ‘high crimes and misdemeanors,’ which is significantly different from bad ‘behavior.’ I doubt we can readily resolve this apparent impasse without delving into the weeds of the debates, but, fortunately for us, we have no need to do so. I draw your attention to Article III, Section II of the U.S. Constitution:
Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Now, forgive me for being simpleton here, but I do not see any language in this section providing the right for the Executive to sue the Executive; or for any unconstitutional bureaucracy to sue the Executive; or for an individual or private organization to sue the Executive. I could go oin, but it seems to me sufficient enough on its face to say that the vast majority of these rogue rulings should never have come before the courts. They lack the proper standing, therefore, the Federal courts have no jurisdiction and, if they lack jurisdiction, they have no authority to rule on the matter. What’s more, the role of the court is not to determine what the law means as much as it is to determine how to apply the law to the details of a given situation. This is found in the very definition of ‘judiciary.’
JUDI’CIARY noun [Latin judiciarius.]
1. Passing judgment or sentence.
2. Pertaining to the courts of judicature or legal tribunals.
JUDI’CIARY, noun That branch of government which is concerned in the trial and determination of controversies between parties, and of criminal prosecutions; the system of courts of justice in a government. An independent judiciary is the firmest bulwark of freedom.
[also, from the definition of ‘executive’ cited previously: “the body that judges, or applies the laws to particular cases, is judicial;”]
This is where we find the subversive effects of the Judiciary of which our Founders were so concerned.
The courts have assumed authority they simply do not have under the plain language of the U.S. Constitution. By constantly ceding their authority to the Judiciary, the Legislative and Executive branches have both created the false perception that the Judiciary is the sole authority over deciding what is and is not Constitutional. This serves to elevate the weakest branch of government to the position of the most powerful in that it now dictates to both the Congress and the President according to its whims.
This problem is further compounded by the use of ‘legal precedence.’ Our Founders inherited a system of common law, which rested upon the rulings in previous cases whereas those previous rulings were taken as a guide in determining new cases. But that is all the common law was: a guide. It was not law in and of itself. What’s more, it applied largely to matters of civil law, not criminal and especially not Constitutional.
What has happened over the years is that the previous rulings have been afforded the weight of binding law. Thus, by incremental ‘interpretations’ of the law, the Judiciary has done exactly what Jefferson warned us it would do: it has placed itself in a position of highest authority of the Federal government. This is why the Left places so much emphasis on asking conservative judges if they hold to stare decisis: because they want to know if the conservative judge will bow to their law rather than the Constitution.
Which finally brings us to the gamble President Trump is taking with the courts. By allowing the courts to dictate what he can and cannot do, especially where the plaintiffs have no standing and the courts have no authority, the President is placing the fate of the nation in the hands of the Supreme Court. If the Supreme Court refuses to hear a case or, worse, sides with just one of these lower court rulings, that will set a precedent which will put the final nail in the coffin of our Constitution. It will only be matter of time until the People may be allowed to elect a Congress and President, but the nation will be run by un-elected and un-accountable ‘judges’ using their assumed authority to direct the bureaucracies in their governance of the nation.
In short, President Trump has gone ‘all-in,’ and our fate now rests in the hands of ‘squishy’ justices like Roberts. I, for one, do not feel too comfortable with this gamble.
–Black3Actual
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