News StoriesOpinion

One Nation, Under Judges

Parts 1-4

By David Morgan- (originally published April 14, 2005 in the Asheville Tribune)
The Founders of our nation and those who wrote the Constitution were emphatic about the need for a distinct separation of powers among the various branches of government.

Voluminous notes and writings exist dedicated to this very proposition. Federalism–the compact in which each member agrees to subordinate its governmental power to that of the other in certain specified common affairs–lies at the heart of our governmental system and our Constitution.

Yet, what is happening in the United States today is that the Supreme Court and its judicial tentacles have sucked the meaning out of the Constitution and are rewriting a new one in accordance with their own views. They have a hammer lock, a virtual monopoly, on making law by empowering themselves to be the final arbiter of all meanings of the Constitution–even those that empower the other coequal branches of government. And the citizens of the United States stand idle and watch.

The Court today is more than willing simply to ignore Congress and the President, as evident in the recent Terri Schiavo case. Congress issued a subpoena for Terri Schiavo to appear before them, the legal requirement being that she, by law, should be protected until she could do so. The state judge in Florida totally ignored and even mocked the subpoena.

Subsequently, Congress and the President signed a law requiring the federal court system to make a “de novo” review of the case–“new, from the beginning”–due to an increasing amount of evidence that was surfacing and had never been considered. The federal courts, for all practical purposes, paid Congress and the President no heed and acted in ways flagrantly indifferent and inimical to the law.
Not long ago, Congress and the President signed a bill into law declaring that partial birth abortion was illegal. Once again one lone federal judge said no.

Each time the judiciary thwarts the intentions of the legislative and executive functions by blatant and unconstitutional interpretations, evaporation of the co-equality of the federal branches drains the essence of the Constitution. Our lower court judges are constantly making national rulings on matters they have no right to decide, and the Supreme Court fails even to hold them in check. (See sidebar below for a detailed review of various judicial Constitutional interpretations.)

Thomas Jefferson himself worried about this. In 1820, he wrote to William C. Jarvis:
“You seem…to consider the judges as the ultimate arbiters of all constitutional questions, a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy…The constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party its members would become despots…At the establishment of our constitution, the judiciary bodies were supposed to be the most helpless and harmless members of the government.

In a letter to Adamantios Coray in 1823, he said: “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…become law by precedent, sapping by little and little the foundations of the constitution, and working its change by construction…In truth, man is not made to be trusted for life if secured against all liability to account.”

Jefferson’s worries were well founded. Over the past two centuries, the elected branches have largely acquiesced to the tyranny of the judiciary. It is the harsh reality of today that the Supreme Court simply looks upon Congress and the President as advisory bodies. Unfortunately the majority of the media and the people do so as well. All look to the judiciary to give them the law. The law and its corresponding rights are now thought to be handed down by the Court.

It was never intended to be this way.

The Declaration of Independence begins with a description of political contract: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitles them […]. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, and that among them are Life, Liberty, and the pursuit of Happiness.”

These are rights that no manmade laws can take away. The people simply lend to their government certain laws for the government to use in carrying out their proper functions. Neither judges nor the government have the right to usurp them and cannot claim ownership of them as they are on loan to the government by the people. The basic principles of our law–truth, justice, and the value of life and individual responsibility–come directly as gifts of the Creator. In addition, the US Constitution starts out by saying “We the People…” not “We the judges…”
Our laws flow as follows: From God to the people, from the people to the Constitution, from the Constitution to our elected government officials, and from our elected government officials to our judicial system to insure that our laws are in harmony with the Constitution.

The judges did not write the Constitution, and therefore, they have no right to rewrite it. Amending the Constitution was never a right given by the founders to the judiciary. That right was given to the people. If the framers of our Constitution had wanted to empower the Supreme Court with a legislative veto, they would have done so.

While Mozart had the right to rewrite his orchestral compositions, the critics of Mozart had no such right. The critic had the right to determine if the orchestra was performing them in harmony with what the composer wrote but not to revise the composition or to add new music to what was written.

This would be anathema to what was written and indeed has become so.
Notice that the judicial oath of office, imposed by the legislature, states: “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.” “Agreeably to” means “in harmony with.”
What gave rise to this usurpation of the Constitution by the Court?

The case that is primarily cited is Marbury v. Madison.
In the Presidential election of 1800, Thomas Jefferson defeated John Adams, becoming the third United States President. Although the election was decided on February 17, 1801, Jefferson did not take office until March 4, 1801. Until that time, Adams and the Federalist-controlled Congress were still in power. Congress passed a new Judiciary Act, creating a number of new courts to be controlled by Federalists.

On March 2, Adams appointed forty-two Federalist judges to these courts while sitting as a lame duck less than a week before the end of his term. The following day, on March 3, the judges were approved by the Senate. One of these “Midnight Judges” was William Marbury, appointed to a position as Justice of the Peace in the District of Columbia. At noon, Adams left office and Jefferson was inaugurated as President.

Marbury’s commission, as well as that of others who were part of the lawsuit, was signed by Adams and John Marshall, his Secretary of State. As a complication of matters, Marshall had been appointed as Chief Justice of the Supreme Court on February 4, but had continued to act as Secretary of State until Jefferson was inaugurated. On March 3, Marshall became Chief Justice and swore in Jefferson.

Jefferson treated as void the forty-two commissions approved on Inauguration Day, including Marbury’s, because they had not been officially delivered by day’s end. He appointed James Madison as the new Secretary, and ordered him not to deliver the Marbury commission.

At this point in the Country’s history, the Supreme Court had very limited powers. Chief Justice Marshall knew that if the Court decided for Marbury, Jefferson would almost certainly ignore the decision—a result that would further erode the court’s authority. Such a result arguably occurred about thirty years later when Marshall ruled in Worcester v. Georgia that states did not have the right to impose regulations on Native American land, and President Andrew Jackson refused to compel the state of Georgia to abide by the decision. He is famously supposed to have said, “John Marshall has made his decision. Now let him enforce it.”

What Marshall finally decided was that, first, Marbury had a right to the appointment and that, secondly, the laws of the country offered him a remedy. The requested remedy was an order (known as a writ of mandamus) directed against James Madison, the new Secretary of State, to transmit the commission to Marbury. It was here that Marshall made his mark.

The Constitution, the Supreme Court held, confined its original jurisdiction—the ability to hear cases in the first instance—to “all cases affecting ambassadors, other public ministers and consuls, and those in which a state be a party. In all other cases the Supreme Court shall have appellate jurisdiction.” (Not original jurisdiction, as had occurred in this case.)

Marshall reasoned that “if this Court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign.”

Marshall’s opinion simultaneously asserted the Court’s power to hold acts of Congress unconstitutional and yet avoided a direct confrontation with the President. By giving up the power of original jurisdiction in cases not specifically enumerated in the Constitution, it seized the power of judicial review.

Politically, Jefferson was forced into a corner: either agree with the ruling and use it as a justification to continue denying the Midnight Judges their commissions or disagree with the very ruling that legitimized his action.
The Court, by enforcing a constitutional restriction on judicial power, essentially did nothing. Marshall claimed the Court’s right of judicial review simply by having the gumption to claim it. That is all there was to it.

Although Marbury v. Madison was the first case asserting the power of judicial review, it was not a power that the Court initially exercised with frequency. It was not until Dred Scott v. Sandford in 1857 that the Supreme Court invalidated another act of Congress. However, the Court treated the decision with deference: between 1804 and 1894, Marbury was cited in only 24 separate opinions in the U.S. Supreme Court that reiterated Marbury’s initial jurisdictional holding proclaimed by Marshall.

It should be noted that when Jeffersonian Republicans and Jacksonian Democrats launched attacks on the Court, they did so with a belief that congressional or presidential interpretations of the Constitution were entitled to as much respect as those of the Court.

Rules for the Courts
Most of the Constitution’s direct instructions for the courts are found in three places: Article III, Amendments 4–8 of the Bill of Rights, and certain provisions of Article I, Section 9.

For an obvious example of what this means from the Bill of Rights, according to Robert Lowery Clinton, Professor at Southern Illinois University, “one only need add the requirement of the Fifth Amendment that such a confession be un-coerced. Now suppose that Congress, in a zealous attempt to suppress subversion, amends the federal rules of criminal procedure so as to make it possible for the government to obtain a conviction on a charge of treason on the basis of a coerced confession, or on the testimony of only one witness.

Much like the situation faced by the Court in Marbury, this situation presents a clear-cut case of a judiciary nature precisely because the Court cannot apply the statutory provision without at the same time violating the Constitution.
“Attention to this principle can help to determine whether any particular case is of a judiciary nature. One may simply ask: “Can the Court apply the law in question without itself directly violating the Constitution?” If the answer to this question is no, then the case is “judiciary” in nature; the Court will have no sensible alternative but to invalidate (refuse to apply) the law. If the answer is yes, then the case is “non-judiciary” in nature, and the Court must apply the law, whether or not the judges believe that the law itself violates the Constitution.”

A good testimony to the good sense of Madison and the Founders is that they “extended federal judicial power to cases ‘arising under’ the Constitution, laws, and treaties only after they had generally agreed that the power was ‘limited to cases of a judiciary nature.’ Limiting ‘final’ constitutional review by the Court to these cases leaves to coordinate branches of government final authority to determine the reach of their own constitutional powers. It preserves the coequality accorded to each division of the government by the Founders. It strengthens the separation of powers by emphasizing the constitutional responsibilities of Congress and the President. And it recovers an important strand of our republican heritage that is nowhere more apparent than in the Supreme Court’s own rich constitutional legacy.”

What should be done?
It is time that the people, Congress, and the President take steps to revise this ever expanding judicial tyranny before our Constitution and our government is molded into a shape that cannot be repaired. Unfortunately, we as a people have willingly given the judges these powers that they so eagerly grab. The only true guardian of the Constitution is an educated citizenry, and a citizenry having the courage to accept the responsibilities that liberty requires.

As Robert Yates, a delegate to the Constitutional Convention from New York, wrote, “Perhaps nothing could have been better conceived to facilitate the abolition of … governments than the constitution of the judicial.”
Mark Levin stated in Men in Black, “The intensive and concerted effort to exclude references to religion or God from public places is an attack on our founding principles. It’s an attempt to bolster a growing reliance on the government – especially the judiciary – as the source of our rights. But if our rights are not unalienable, if they don’t come from a source higher than ourselves, then they’re malleable at the will of the state. This is a prescription for tyranny.”

The judiciary was never granted the right to mold a new constitution or to advance its own agendas and political causes through the judicial system. It has simply grabbed that right through intimidation.

Congress has the power, providing it has the will
Article III affords the Congress to create lower courts under the Supreme Court, to determine the original and appellate jurisdiction in these courts as well as of the Supreme Court. It therefore has the power to disburse with such courts and/or to change the jurisdiction.

The President has the authority to nominate candidates to the federal bench who can take office with the advice and consent of the Senate. They have the duty to appoint men and women who will uphold the intent of the Constitution. Filibusters are not a Constitutional impediment to such advice unless the Congress has no stomach for upholding their sworn duties. If this nation’s choice of judges remains subject to unconstitutional filibusters, then those who shrivel and shirk their sworn responsibilities are not worthy of their office.

The House of Representatives can impeach judges and the Senate can try them and remove them. This has rarely if ever been done, but then rarely has it become more apparent that drastic action is needed. Certainly, the fearless arrogance of the judiciary should not be met with Congressional timidity.

In 1980 Congress passed a law that created a process for removing judges for misconduct or disability. The law’s glaring weakness is that it allowed the chief justice and other judicial members to attest to a judge’s inabilities. A process controlled by the judges will do little to correct the status quo.

Perhaps the most major practical power that Congress holds is the power to limit the Supreme Court’s jurisdiction over various laws.
Article III plainly states that the jurisdiction of the Supreme Court is tempered “…with such exceptions, and under such Regulations as the Congress shall make.”

Part of the problem here is that each bill must have the explicit and required language in it so that it would be qualified under this provision. One such bill that is currently pending in Congress is the Marriage Protection Act which is proposed specifically to remove the Court’s jurisdiction from the Defense of Marriage Act. (See sidebar of cases)

Moreover, the Court has attempted in a few cases to stick its long nose into this Constitutional prerogative of Congress and to declare such actions unconstitutional.

Nevertheless, Congress needs to augment and use this specific power, and can do so in several ways.
It could establish its own Constitutional Integrity Committee for the explicit purpose of routinely and regularly insuring that the Supreme Court ceased issuing its non-judiciary opinions and maintained the integrity of judicial clarity for which it was established. This committee could be composed of nine members appointed to 5 year terms. Four could be appointed by the House, three by the Senate, and two by the President. These members would be charged with reviewing the decisions of the Supreme Court, and if necessary other federal courts, to insure that such decisions were indeed in keeping with the language of the Constitution.

Should the Committee find otherwise, then the Supreme Court would have to rectify their ruling or else the Congress would immediately remove the Court from having jurisdiction over the law involved and/or removing the lower court altogether if such rulings were habitual. This would put the Court on notice that it, too, was being watched.

Finally, a Constitutional Amendment could be proposed that would no longer give lifetime membership to judges on the Courts. Somewhere between a nine and a twelve year term would certainly be adequate to insure that judges would be protected while attempting to provide judicial impartiality.

Our Constitution is being shredded page by page on a daily basis by judicial interpretations pulled out of thin air. It is time for judicial tyranny to be reigned in or else we will cease to exist as the nation we were, and all the blood spilled to preserve what we were will have been shed for naught.

And if we cannot hold on to what we were, we will become what we were not, and that is exactly who we will be.


Tearing apart the fabric of America, case by case
Undermining religious beliefs
Part of the First Amendment of the Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
Seems simple enough. Our founders did not want the federal government to establish a state religion, and they wanted to be sure that any citizen could worship in freedom wherever and whenever he or she saw fit. Notice that this is in the very first amendment.

However, in 1947, the Court in Everson v Board of Education re-wrote this Amendment by incorrectly seizing from a letter that Thomas Jefferson wrote to the Danbury Baptists Jefferson’s phrase that there should be a “wall of separation” between church and state. Jefferson’s meaning, of course, was that the state should not establish a religion.

However, the Courts decided that the First Amendment means that instead of citizens having the right to freedom ‘of’ religion, that they have a right to freedom ‘from’ religion. In Lee v Wiseman in 1992 the Court inaugurated its “coercion test” which promulgated a new nonexistent constitutional “right” not to be offended and not to feel uncomfortable by having to listen to religious expression in a public place.

The Court has hopelessly twisted the meaning of this part of the First Amendment into a number of absurd judicial outcomes leaving a great deal of confusion in their wake.
(To explore the subject in more detail, check Barry Krusch’s Web site,

Right to Privacy
It takes a great deal of research in the Constitution to find the “right to privacy” simply because it does not exist and is nowhere to be found. Yet it was the Court’s underpinning for the 1961 decision in Poe v Ullman that led to the Griswold v. Connecticut decision in which the “right to privacy” became constitutional law by fiat. In Justice Douglas’ ruling he wrote that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

Out of this emission from a penumbra was born the “right to privacy.” Pretzels became law.
The founders quite obviously proposed no specific rights to privacy because criminal acts such as murder, rape, incest, brutality and other evils could be committed in privacy.

In 1973 in its most notorious use of this phrase, in Roe v. Wade, Justice Blackmun felt that regardless of where the “right to privacy” comes from, it includes the right to abortion. He declared strongly that the unborn baby was not a “person” which meant, in effect, that it was just a piece of property. (Much like slaves had once been.) ‘When life begins’ was never an issue and was not considered. Unlike wetlands, endangered species, or old growth trees, the mother could destroy the unborn baby at will.

The Court in general has a horrible record on other similar cases. In 1856 it not only upheld slavery, but it imposed it on the free territories, and in the mid 1890’s it dug out “separate but equal” from the Constitution.

Definition of marriage
The simplest and oldest concept of marriage is that it is when a man and a woman become a husband and wife so that they might become a father and a mother.
It takes a man and a woman. A man who is “gay” has the right to “marry” a woman who is a lesbian or who is heterosexual and vice versa. No rights have been threatened. More than a century ago, the U.S. Supreme Court spoke of the “union for life of one man and one woman in the holy estate of matrimony.” Murphy v. Ramsey, 114 U.S. 15, 45(1985).

However, the Court has set the stage to try to “redefine” marriage to include unions of two men or two women, just for starters. (Instead, unions of two men should simply be called ‘gaymiages’ and of two women ‘lesbiages’ or some other definitive term.)

In Lawrence v. Texas, in 2003, in response to an attorney attempting to justify the Texas anti-sodomy statute, Justice Breyer exclaimed,” You’ve not given a rational basis except to repeat the word morality,” as if morality has no basis in law. What is happening is that the Court is rapidly abandoning the moral foundations that underpin our Constitution, and is instead writing a new constitution in their own elite image.

As a direct result of an outcry from the people, Congress is attempting to reign in the judges in this regard. In July 2004 Rep. John Hostettler of Indiana sponsored the Marriage Protection Act, which would strip all jurisdiction from federal courts (in accordance with Article III, section 2) in deciding the constitutionality of the Defense of Marriage Act. The bill passed the House but as of now the issue is dormant.

Diversity & reverse racism
In the 2003 case of Gutter v. Bollinger Barbara Gutter had been turned down for law school even though she had a 3.8 grade point average and a score of 161 out of 180 on the Law School Admissions test. She sued the school saying she was turned down because she was white.

In upholding the school, Supreme Court Justice Sandra Day O’Connor stated that, “…student body diversity is a compelling state interest that can justify the use of race in university admissions…attaining a diverse student body is at the heart of the Law School’s proper institutional mission.”
However, there is nothing in the Constitution about diversity, admissions tests, and other pretzel-like minder-binders designed to go around the Constitution’s clear prohibition against racial discrimination. It is not the role of the Court to design social policy.

Re-engineering citizenship
Article I, Section 8 of the Constitution says that Congress shall have the power “To establish a uniform Rule of Naturalization…” One would think that this was clear enough. But not to the Supreme Court.
The Court has put its nose in this arena and made abusive decisions as to how immigrants enter America, how they remain here, whether illegal immigrants can have monetary benefits that the states and Congress wanted to hold for US citizens, and whether or not they are entitled to free schooling and a host of other social benefits.

They have even overruled laws and stated that non-citizens can seek tuition assistance, hold civil service jobs, and practice law.

In 1976 the Court ruled in Hampton v Mow Sun Wong that citizenship was an unconstitutional requirement for holding a government job. In 1982 in Plyler v. Doe the Court ruled that illegal Texas immigrants are entitled to a free public school education, and in 1977 in Nyquist v. Mauclet the Court ruled that it was not constitutional for New York to require resident aliens at least to apply for U.S. citizenship before becoming eligible for financial aid for education.

The Court has stripped away any distinctions between citizens and legal aliens and those that are here illegally. In doing so it has written laws and set policies that the Constitution clearly designated to the Congress. This is clearly not constitutional and is indeed arrogantly dangerous.

Everything falls under the “commerce clause”
Under Article I, Section 8, the Constitution gives Congress the power to “regulate commerce with foreign nations and among the several States.” The purpose of this was to promote trade by breaking down many of the barriers that had been set up by the States.

However, in 1942 the Court made a gigantic leap into the entire marketplace with its ruling in Wickard v. Filburn. In that ruling the Court decided that Congress could regulate the amount of wheat that a farmer grew on his farm even though none of the wheat ever left the state. It arrived at its decision by more pretzel logic when it stated that because Filburn, a farmer, did not purchase any wheat on the open market and instead grew his own wheat that he was affecting interstate commerce by not buying any. Under this logic absolutely anything can be covered under the “commerce clause.”

The Court’s ruling on the commerce clause means that there are absolutely no Constitutional limits on the federal powers to make any law it chooses.

Courts and election laws
In the presidential election of 2004, in Florida, the Courts waded in where there was need for them to be.
Article II, Section 1, Clause 2 of the U.S. Constitution states that “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” What this meant was that the Florida legislature, which was controlled by the Republicans, had absolute authority to choose Florida’s members of the Electoral College and were preparing to do so in view of the resulting vote counting confusion. Bush would have received these electoral votes in an entirely Constitutional manner.

The Florida Supreme Court had initiated the real problem on November 17, 2000 when they, on their own motion, issued a temporary stay against Florida Secretary of State Katherine Harris from certifying the election results on the day provided by Florida law. The Florida Court totally ignored existing Florida law governing deadlines and recounts, and inserted its own deadline out of thin air. On December 8, once again the Florida Supreme Court committed a stunning abuse by its judicial activism. It ordered manual recounts in every Florida county that had significant numbers of “undervotes” without even establishing a standard for recounting the ballots.

At that point the U.S. Supreme Court waded in and ordered the manual recounts stopped, and a few days later on December 12, 2000 the U.S. Supreme held that the Florida court had violated the ‘equal protection” clause of the U.S. Constitution by ordering statewide manual recounts with different standards in the different counties.
If anything, the US Court should have ruled on whether or not the Florida Court had usurped and supplanted the Florida legislature’s authority. Instead it opened up a new Pandora’s box by widening the meaning of “equal protection.” The Florida legislature should have moved to impeach members of the Florida Supreme Court for their blatant moves to rewrite the election laws illegally, and the US Supreme Court should have stayed out of the fray. George Bush would have had the Florida electoral votes anyway.

Knocking down free speech in politics
Another part of the First Amendment of the Constitution says that, “Congress shall make no law…abridging the freedom of speech, or of the press…” That’s what it says.

However, in 2002 the McCain-Feingold Act was signed into law. It imposes grotesque limits on political speech and stated that groups could not run advertisements about a candidate’s position for thirty days before a primary election and sixty days before a general election. The media was exempted.

This was challenged under McConnell v. Federal Election Commission in 2003. After the Court stamped its approval on the bill by discussing “soft money,” discussing “hard money,” defining “electioneering communication,” and other unrelated topics, it ruled to uphold the bill.

In whose wildest dreams could it ever be interpreted that the founders included in the Constitution a proviso that people could wind up in federal prisons for speaking out clearly and often in favor of a particular candidate?

Perverting the Constitution to aid our enemies
Article II, Section 2 of the Constitution states that “The President shall be Commander in
Chief of the Army and Navy of the United States…” As such his primary task is to act so as to
ensure the safety and security of Americans in times of attack.

As such the President has the authority to detain enemy combatants, the purpose of which is to gather intelligence and to ensure that they do not return to assist the enemy.

Once again the Court has moved to increase its powers. In 2004 in Rhamdi v. Rumsfield the Court ruled that “…a citizen-detainee seeking to challenge his classification as an enemy combatant must receive…a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker.”

Going even further, in Rasul v. Bush the Court determined that the courts could listen to cases in which foreign enemy combatants challenge their detention. In their wisdom they gave alien combatants and enemies access to U.S. civilian courts. They gave an alien captured in a foreign active combat zone the right to bring a suit against the Secretary of Defense. Arming the enemy with subpoenas, affidavits, depositions, and lawyers borders on the ridiculous.

These are more dangerous rulings that are simply grotesque power grabs by the Court. Certainly the Founders never intended to swap a tyrannical monarchy for an oligarchy of judges.
“I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial. But, I beg to know, upon what principle it can be contended, that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments.

The Constitution is the charter of the people to the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.

There is not one government on the face of the earth, so far as I recollect, there is not one in the United States, in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent.” James Madison, Speech in Congress on Presidential Removal, June 16, 1789.

The writer is indebted to Mark Levin’s book “Men in Black” for much of the basic data covered above.

Show More

Related Articles