Tuesday, January 24, 2023

The Other Option

To every thing there is a season, and a time to every purpose under the heaven….  A time to rend, and a time to sew; a time to keep silence, and a time to speak.  (Ecclesiastes 3:1 & 7, KJV)   

WHY do we let liars dominate the stage?  For there is no excuse when an occasion presents an opportunity to tell the truth.   

     The President “shall from time to time give to the Congress information of the State of the Union.”   (Article II, Section 3)  And every address is, or should be, a chance to renew the commitment to the goals set forth in the Preamble, that is, “to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity…”  (Emphasis added)   

     As the President of the United States stands before a joint session sitting in the House of Representatives, a body whose majority has threatened to hold the economy hostage, he must execute a last resort and announce that, pursuant to Article VI, Clause 1 and Section 4 of the Fourteenth Amendment, as well as his duty to “take care that the laws be faithfully executed”—and the Constitution is the first law—he will raise the debt ceiling.  (Article II, Section 3)  Furthermore, he shall inform the Imperial Court, which will be present, that if they attempt to overrule him, he will paraphrase President Andrew Jackson and say, “Mr. Roberts, you have made your decision.  Now go and enforce it.”   

     For those who think such action is outlandish, John Locke, in the Second Treatise of Civil Government, stated, “…(P)rerogative is nothing but the power of doing public good without a rule”; and his influence on the Founders was made clear by someone who attended the Convention.  “Energy in the Executive is a leading character in the definition of good government….”  And without it, Alexander Hamilton noted, there are consequences.  “A feeble executive implies a feeble execution of the government.  A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”  (The Federalist Papers, No. 70)  Thus, there are times when a President must use the full powers of the office, as JFK said, "all that are specified and some that are not." 

(c)2023 Marvin D. Jones.  All rights reserved.



[Turn, Turn, Turn] 


[A Last Resort] 


[The Imperial Court]

Friday, January 06, 2023

Oath and Consequences

“This Constitution…shall be the supreme law of the land…any thing to the contrary notwithstanding.”  (Article VI, Clause 2) 

THE MAN WHO WOULD BE KING gave his word, with such a lack of irony that one suspects he needs Geritol.

     “A massive fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution.  Our great ‘Founders’ did not want, and would not  condone false and fraudulent elections.” 

     Anyone the least conversant in American history knows how often this nation has refused to take      refuge in the arms of monarchy.  The Declaration of Independence begins with ideals and then lists grievances against George III.  The Constitution makes it clear that there are to be no titles of nobility here and guarantees “to every State in this Union a republican form of government.”  (Article I, Section 9, Clause 8; Article I, Section 10, Clause 1 & Article IV, Section 4)  The Fourth Amendment stands in contrast to the writs of assistance—general search warrants—which allowed the agents of King George III to do as they pleased.  Thus, among other things, the Bill of Rights defines the role of a police officer in a republic, not a monarchy. 


     Thomas Jefferson’s concern over “governments deriving their just powers from the consent of the     governed” is now to apply only when one likes the results.  So, the self-styled “conservatives” and “strict constructionists” must have forgotten that James Madison, like the author of the Declaration, made the very same point—“A republic, by which I mean a government in which the scheme of representation takes place....”  (The Federalist Papers, No. 10)  And they must have also forgotten another minor observation by the Father of the Constitution that “The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.”  (The Federalist Papers, No. 52) 

     It was not possible at the Convention to establish “one uniform rule” for voting.  (James Madison, The Federalist Papers, No. 52)  Instead, those who were eligible to vote for the lower House of the State Legislature could do so in Federal elections.  (Article I, Section 2)  Now, because of the Fourteenth, Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments, there is a national standard with consequences for those States that deny or abridge the right to vote.  (Fourteenth Amendment, Section 2)  Thus, Article I, Section 4, Clause 1—“The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations”—can have full force and effect. (Emphasis added) 


     Before he was deposed, King Chief Traitor I said, “I have an Article II where I have the right to do whatever I want as President.”  He also claimed, “the complete power to pardon.”  Apparently, no titles of nobility only applies to commoners.  (Article I, Section 9, Clause 8 & Section 10, Clause 1) 

     If a citizen said, “A fraud of this type and magnitude allows for Macbeth’s termination,” the Secret  Service would pay that individual a visit.  Yet the Chief Traitor can call for the death of the very thing we take an oath to defend—and no one knocks on his door.  Instead, he is protected. 

     The Chief Magistrate of the Union takes an oath to “preserve, protect and defend” the Constitution.  But the Chief Traitor is a certified sissy who never served, and he is an offense to all of us who meant it when we said, “So help me God.”  And since the oath requires us to support and defend the supreme law of the land “against all enemies, foreign and domestic,” he must be viewed as the latter.  Therefore, he is entitled to no respect beyond common courtesy, no deference but Mister lest Sir arouse thoughts of knighthood. 


     Turmoil is America’s middle name.  But according to the country’s birth certificate, Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes….”  The exception occurs “when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism….”  Shays’ Rebellion, which showcased the shortcomings of the Articles of Confederation with a bayonet point, did not meet the Declaration’s standard.  Neither did the Whiskey Rebellion, the first uprising under the Constitution, which was met with a firm response due to the previous experience.  And the Civil War was an act of treason; and treason—“levying war” against the United States—is the only crime defined in the supreme law of the land, because it is a threat to the life of the Republic.  (Article III, Section 3)  Thus, “light and transient causes” will not suffice; and, besides, the Fundamental Charter makes revolution within the framework of law possible through ballots, not bullets.  A republic is the means to an end that avoids “a long train of abuses and usurpations.” 

     The Attorney General assists with the “take care” clause day-to-day in regard to prosecutions.  But the Battle of Capitol Hill merits a response beyond criminal law. 

     To “insure domestic tranquility,” the Chief Magistrate must “take care that the laws be faithfully executed” in regard to national security.  (Preamble & Article II, Section 3)  The first law is the supreme law of the land and all actions must be “in pursuance thereof.”  (Article VI, Clause 2)  Therefore the President has to act like Washington and Lincoln—call up the Militia and suspend the writ of habeas corpus, which can be done “when in cases of rebellion or invasion the public safety may require it.”  (Article I, Section 8, Clauses 15 &16; Article II, Section Clause 1; and Article I, Section 9, Clause 2)  For domestic terrorism is rebellion by another name, as Grant recognized in taking such action against the KKK during Reconstruction.  Thus, by these deeds, the President of the United States is true to the oath to “preserve, protect and defend” the Constitution.  (Article II, Section 1, Clause 8)   

     With the separation of the wheat from the chaff, the Special Prosecutor can proceed with priority prosecutions.  Count 1 could be conspiracy to defraud the United States and Count 2 rebellion or insurrection.  (Title 18, Section 371 & Section 2383 of the United States Code, respectively; the latter enforces the Fourteenth Amendment, Section 3) 

     There is no statute of limitations on upholding the supreme law of the land.  It is a lifetime commitment, and those who call for the termination of the Constitution must know that their service is at an end and they will never hold any office under the United States again.  (Fourteenth Amendment, Section 3 & Title 18, Section 2383)  And while turmoil is America’s middle name—which is to be expected, having been born in dissent—an armed threat to the life of the Republic must be a death sentence for anyone who takes aim.  (Article III, Section 3 & Title 18, Section 2381 of the United States Code)

(c) Marvin D. Jones 2023.  All rights reserved.



['Are we at war?’ Bannon exhorts] 


[January 6th Rioter Arrested: Planned to Kill 37 FBI Agents] 


[Lincoln’s Suspension] 




[Does it come in black?]

Tuesday, November 22, 2022

A Lot of ’Splainin’

A lie can travel halfway around the world while the truth is still putting on its shoes.                                                                                                            Jonathan Swift

ASSERTION AND REPETITION do not equal truth.  But they aid and abet falsehood. 

     There are always, it seems, loose ends hopelessly tangled, an embarrassment that could never become a ball of string nor a spool of thread.  Yet they tie things up or needle us and sow confusion.  And now the Fates are the Second Amendment, the pardon power, and the debt ceiling. 

     “[The Second Amendment] has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime,” said former Chief Justice Warren Burger.  (The MacNeil-Lehrer Report, December 16, 1991)  “A well-regulated Militia,” the opening phrase of the Second Amendment, was defined by Alexander Hamilton in No. 29 of The Federalist Papers, which foreshadowed the report President Washington had Secretary of War Henry Knox send to Congress in support of Universal National Service.  The Militia is under the control of a Governor until “called into the actual service of the United States” by the President.  Since 1903, the Militia has been called the National Guard.  Thus, it is not about every Tom, Dick, and Harry running around with firearms; and they are no more entitled to call themselves the same, or a Defense Force, or a Civil Guard than a citizen can claim to be a Federal agent.  (Article I, Section 8, Clause 15 & Clause 16 and Article II, Section 2, Clause 1) 

     The pardon power, like all the powers of the Presidency, exists for the benefit of the Republic.  It is to be used as a check on the judiciary and to insure domestic tranquility.  But the notion that a President can pardon one’s self was settled when Benjamin Franklin said America is a republic—not a monarchy.  Otherwise, the Declaration of Independence means nothing; the Revolutionary War was pointless; and the Constitution is an art piece, calligraphy on parchment. 

     The debt ceiling is a statutory provision, the technicality of technicalities and of dubious constitutionality.  Nevertheless, House Republicans are prepared to use that portion of the Second Liberty Bond Act of 1917 as leverage against Social Security and Medicare.  That, to say the least, is questionable, for according to Article VI, Clause 1, “All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”  So, if the “original intention” was to make our word true, can we act in a way that makes our word worthless?  And should that even be a consideration?  Section 4 of the Fourteenth Amendment—“The validity of the public debt of the United States…shall not be questioned”—is a reaffirmation of Article VI, Clause 1; and, therefore, all debts and engagements entered into shall be valid against the United States under the Constitution. 

     On the one side of the scale is the debt ceiling, a statutory provision, the technicality of technicalities and of dubious constitutionality.  On the other, there is the Fundamental Charter itself, No. 43 of The Federalist Papers, the reports of the first Secretary of the Treasury, and Chapter XIV of the Second Treatise of Civil Government.  Furthermore, the oath requires the President to “preserve, protect and defend the Constitution.”  (Article II, Section 1, Clause 8)  Therefore, if forced to choose between “the supreme law of the land” or a statute, the former must prevail and be “faithfully executed.”  (Article VI, Clause 2; Fourteenth Amendment, Section 4 & Article II, Section 3)  Accordingly, after giving due notice by a Proclamation on Public Credit to the press and the public and a delinquent Congress, the President must issue an Executive Order on the Means of Extinguishment and invoke the Gephardt Rule which simply stated that the debt ceiling was “deemed to have passed” when a budget resolution was approved. 

     While the Second Amendment, the pardon power, and the debt ceiling garner a mention now and then, a few have, as Ricky Ricardo would say, “a lot of ’splainin’ to do.”  For the facts are not hard to find, if one dares to look.  Meanwhile, some politicians, judges, and journalists are getting a lot of exercise with false starts.  Yes, once, twice, three times so lazy—and jump the gun.  But the truth is out of the blocks on time. 

(c)2022 Marvin D. Jones.  All rights reserved. 


The opening quotation is commonly attributed to Mark Twain.  But its origins are discussed below. 






[the Second Amendment] 


[the pardon power] 


[the pardon power] 


[the debt ceiling]

Monday, July 04, 2022

Against All Odds

The best lack all conviction, while the worst are full of passionate intensity.                                                                                                                          William Butler Yeats

REPUBLICS ARE RARE.  Like coal, they can be reduced to dust.  But those well-organized—even when under great pressure—become diamonds. 

     This nation is a miracle taken for granted by too many.  But in the old days, the smart money was not on the Colonies.  No one was saying, “I’ll take the Americans and give you ten points.”  Sacrifice, the high tax of greatness, made it all possible—“our lives, our fortunes, and our sacred honor.”  Something too often forgotten—citizenship consists of rights and duties. 

     “The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they   were.”  (Alexander Hamilton, The Federalist Papers, No. 25) 

     In the aftermath of the war, fear of a standing army remained because memories of the Redcoats lingered.  But Alexander Hamilton knew the inadequate arrangements of the Articles would be corrected under the Constitution.  The report President Washington had Secretary of War Knox send to Congress in support of Universal National Service was to be a constant reminder of the benefits and burdens of citizenship.  Hamilton had foreshadowed the Knox Report in The Federalist Papers, where he made it clear that “a well-regulated Militia” concerns “national security” and is under the control, initially, of a Governor and, ultimately, the President of the United States.  (The Federalist Papers, No. 29)   

     The South has been a major source of confusion regarding the Second Amendment.  It is not about slave patrols, which were in effect long before, nor stand your ground and concealed carry.  Yet the South’s claims have served as an example to others to do the same.  Nevertheless, assertion and repetition do not equal truth.  But that does not stop some from trying. 

     The Southern strategy is lying.  The South pays lip service to the Constitution while longing to live under the Articles of Confederation.  Thus, the supremacy clause of the former must yield to the States’ rights of the latter.  (Article VI, Clause 2) 

     Treason—“levying war” against the United States—is the only crime defined in the Constitution because it is a threat to the life of the Republic.  (Article III, Section 3)  Treason—firing on Fort Sumter—was committed based on falsehood.  Reconstruction was halted based on falsehood.  And the Capitol was invaded based on falsehood, by those who followed in the footsteps of the Confederacy. 

     A proclamation to “insure domestic tranquility” is necessary to serve notice on the rebels and put them in touch with reality.  (Preamble)  Like Lincoln, Biden must wed the “take care” clause and the war power to enforce the “guarantee to every State in this Union a republican form of government.”  (Article II, Section 3 & Article IV, Section 4)  The objective: crush the rebellion and save the Republic.  Pursuant to Article I, Section 8, Clause 15 that gave Congress the power “To provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions,” the Insurrection Act was passed—and must be invoked, because Article IV, Section 4 requires the United States to “protect each of them against invasion; and…domestic violence.” 

     America is a child of the Enlightenment, not the Dark Ages.  In the beginning, our cause seemed unlikely and, at times, hopeless.  Now, in the minds of some, nothing hung in the balance then, because the matter was never in doubt.  But the inevitable is an illusion, the appearance of what had to happen, after the fact—and from a safe distance.  In the end, patriots do not risk life and limb so others may simply lie and push Lady Liberty off her pedestal, then laugh as she stumbles, staggers on her way, possibly to die.  And now, the naysayers are nervous, for those who take things for granted forget that the existence of the United States of America is against all odds.

(c)2022 Marvin D. Jones.  All rights reserved.



[Against All Odds] 


[The Second Amendment] 


[Lincoln and Biden] 

Monday, June 06, 2022

The Anti-Slavery Constitution

THE SOUTH has defined American history in the minds of many.  But what the force of circumstances dictated does not make something so, nor sustainable. 

     In an early draft of the Declaration of Independence, Thomas Jefferson addressed the original sin of the British Empire—slavery.  “He has waged cruel war against human nature itself, violating its most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian king of Great Britain, determined to keep open a market where MEN should be bought & sold.”  (Emphasis Jefferson’s)  But acknowledgement of that fact was too much for the South to bear. 

     After the Revolutionary War, the failings of the Articles of Confederation were glaring.  A new system of government was necessary. 

     The South wanted to increase its number of members in the House Representatives by counting each slave as one inhabitant.  The North was opposed, and the disagreement threatened the work of the Convention.  But the difficulty was overcome through the three-fifths compromise, which frustrated the South’s desires. 

     The emphasis on States’ rights, of which the South is still so enamored, was supported under the   previous charter.  Nevertheless, that document’s complete title, the Articles of Confederation and Perpetual Union, reveals the significance of the first phrase in the Preamble to the Constitution—“WE THE PEOPLE of the United States, in order to form a more perfect Union…”  (Italics added)  That statement of purpose, written by Gouverneur Morris, who was anti-slavery, is a clue as to the original intention and how to interpret the text. 

     Yet, once the new charter was ratified, the South hampered the transition from the Articles to the   Constitution.  Rather than adapt, by preparing for the day when new shipments of bodies would be banned, the South insisted upon passage of the Fugitive Slave Act of 1793.  (Article I, Section 9, Clause 1 & Article IV, Section 2, Clause 3)  Enforcement required Northern assistance, which was not forthcoming among those States that had abolished human bondage.  And in 1800, when Congress made it a crime to be involved in the international slave trade, the South did not change its ways.  Finally, “An Act Prohibiting the Importation of Slaves” became effective on New Year’s Day 1808. But rather than adapt, the South adopted the gag rule, which did not allow abolition petitions to be debated in the House—an echo of the complaint made against King George III in the Declaration.  “In every stage of these oppressions we have petitioned for redress in the most humble terms:  Our repeated petitions have been answered only by repeated injury.  A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.” 

     Nullification and interposition were assertions made by the Southern States that they were members of the Union only when it was convenient.  But the Bible Belt was also in defiance of the Scriptures supposedly held as sacred.  “If the foot shall say, Because I am not the hand, I am not of the body; is it therefore not of the body?  And if the ear shall say, Because I am not the eye, I am not of the body; is it therefore not of the body?”  (I Corinthians 12:15-16, KJV)  And the South did so even though Exodus was a clue as to how God viewed the peculiar institution.  Instead, the Bible Belt disrespected the Book on which the oath was taken and rejected what the raising of the right hand required one to acknowledge.  (Article VI, Clause 3)  “This Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land…any thing in the Constitution or laws of any State to the contrary notwithstanding.”  (Article VI, Clause 2)  Thus, the South knew the material—and the spiritual—stakes.  For as it is written, “These six things doth the LORD hate: yea, seven are an abomination unto Him”; the last of which is, “A  false witness that speaketh lies, and he that soweth discord among brethren.”  (Proverbs 6:16 & 19, KJV) 

     Treason—“levying war against” the United States “or in adhering to their enemies, giving them aid and comfort”—is the only crime defined in the Constitution because it is a threat to the life of the Republic.  (Article III, Section 3, Clause 1)  Yet the South calls the conflict that began when the Confederates attacked Fort Sumter the War of Northern Aggression.  But assertion and repetition do not equal truth. 

     The South’s obstruction and armed opposition ended in defeat, and now the Lost Cause must be put to sleep.  Instead of “the South shall rise again,” the nation must use advances in medicine to act on an old diagnosis and perform the long delayed surgery.  The Civil War Amendments are the implements to complete the operation.  For even under the Articles of Confederation, the Northwest Ordinance prohibited slavery in that territory.  Then, the new charter, the Constitution of 1787, carefully avoided using the word, which was hardly a ringing endorsement of the practice.  Indeed, provision was made to schedule removal of the malignancy. 

     “It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it.  It is not   necessary that the former should be perfect; it is sufficient that the latter is more imperfect.  No man   would refuse to give brass for silver or gold, because the latter had some alloy in it….  Is the importation of slaves permitted by the new Constitution for twenty years?  By the old it is permitted forever.”  (James Madison, The Federalist Papers, No. 38)

(c)2022 Marvin D. Jones.  All rights reserved.



[Jefferson’s early draft] 


[Fugitive Slave Act of 1793] 


[International slave trade ban in 1800 & “An Act Prohibiting the Importation of Slaves” in 1808] 


[The gag rule] 


[How the South Won the Civil War by Harriet Cox Richardson]

Tuesday, March 01, 2022

As Putin Passes...

“We cannot negotiate with those who say, ‘What’s mine is mine and what’s yours is negotiable.’”                                                                                                                            John F. Kennedy 

Block him now, trip him now, stop him NOW!  Otherwise, what is next—Finland and Sweden? 

I. Diplomacy 

     The Allies, in consultation with Ukraine, must demand a ceasefire and an immediate withdrawal from Crimea, from the Donbas region, and the withdrawal of all foreign forces.  They must change the frame of reference by telling and retelling the truth endlessly:  Khrushchev gave Crimea as a gift to Ukraine and, after the Cold War, the four-power nuclear agreement, which Russia signed, recognized the sovereignty and territorial integrity of Ukraine.  It must be upheld.  Furthermore, the use of hijacked or kidnapped titles must end, for words matter.  Refer to Putin as Tsar because he is not the head of a republic. 

II. Defense 

     Article V of the North Atlantic Treaty must extend to the proposed Treaty of Grand Alliance.  In response to the invasion, associates of NATO—Finland and Sweden—must be under a declaration of protection, prior to membership; and Putin’s nuclear threats need to be countered with deployment of THAAD in Ukraine, as requested, and associate states, if desired. 

     In the United States, Universal National Service can advance “domestic tranquility” as well as “the  common defense,” as set forth in the Knox Report that President Washington had the Secretary of War send to Congress, which deals with the fact that the Second Amendment concerns national security.  (Preamble)  The time has come for those who have lied to put up or shut up. 

     ACES—the Allied Cleaned Energy States—is a key part of the Treaty of Grand Alliance, and together they can offer assistance to other cooperative nations.  Sanctions then become more effective as the world weans itself off a Nineteenth Century fuel source and protects the climate. 

III. Deterrence 

     National security is about survival, and the ability to adapt involves playing to one’s strengths.  The nation that masters the interplay between domestic and foreign affairs—with the economy on the cusp—commands the future.  And, in the nature of things, a republic has a better chance of getting the right balance and blend. 

     Article IV, Section 4 of the Constitution—“The United States shall guarantee to every State in this Union a republican form of government”—is, according to the Supreme Court in Luther v. Borden, a political question.  Thus, it must be invoked by the Executive against those States that deny or abridge the right to vote, which undermines the defining quality of a republic.  (Fourteenth, Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments) 

     This is where the ideal and the reality become one.  Character is the union of thought, word, and deed directed toward a noble end.  The oath to support and defend the Constitution “against all enemies, foreign and domestic” is meaningless without it. 

IV. Determination 

     When President Kennedy addressed the nation on the Berlin crisis on July 25, 1961, West Berlin was an island in a communist sea.  “The freedom of the city is not negotiable.  We cannot negotiate with those who say, ‘What’s mine is mine and what’s yours is negotiable.’”  Today Berlin is the capital of a reunited Germany.  A strong defense upholds deterrence and supports diplomacy. 

(c)2022 Marvin D. Jones.  All rights reserved.


https://www.marvindjones.blogspot.com/2013/08/much-is-required.html [THE KNOX REPORT] 

https://www.marvindjones.blogspot.com/2020/02/the-grand-alliance.html [THE GRAND ALLIANCE] 

https://www.marvindjones.blogspot.com/2016/06/the-obstacle-illusion.html [THE OBSTACLE ILLUSION] 

https://www.marvindjones.blogspot.com/2017/04/the-long-goodbye.html [THE LONG GOODBYE]

Monday, January 17, 2022

The Imperial Court

“Ultimately in our system of government the Supreme Court is first among equals.”  (First Among    Equals by Kenneth W. Starr, xvi)

THE UNITED STATES OF AMERICA won independence despite the Articles of Confederation, and the Constitution was created to overcome that document’s defects.  But the transition from the one to the other is not quite done.

      The Articles of Confederation were an invitation to confusion, which some seek to reintroduce.  For a basic principle of Anglo-American jurisprudence acknowledged by William Blackstone, James Madison, and Chief Justice John Marshall —“Where there is a right, there is a remedy”—was violated by the Texas abortion law, which has effectively overturned Roe v. Wade in that State.  Yet certain members of the High Court did so too through the shadow docket and violated the supremacy clause:  “This Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land…any thing in the Constitution or laws of any State to the contrary notwithstanding.”  (Article VI, Clause 2) 

I. The Least Dangerous?

      Judicial review is vital to the health of the American Republic, as Alexander Hamilton made clear.  “The complete independence of the courts of justice is peculiarly essential in a limited Constitution.  By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like.  Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all the reservations of particular rights or privileges would amount to nothing.”  But for some, the oath is meaningless, and the duty to be “faithful guardians of the Constitution” is lost.  (The Federalist Papers, No. 78; emphasis added) 

     Even before we became free, the country’s birth certificate declared that rights were to be protected by governments “deriving their just powers from the consent of the governed.”  Then the Constitution did so, creating, in Benjamin Franklin’s words, "A republic, if you can keep it."  And James Madison’s definition hearkened back to the Declaration:  “A republic, by which I mean a government in which the scheme of representation takes place....”  (The Federalist Papers, No. 10)  Thus, one thing about “the manifest tenor of the Constitution” is beyond reasonable doubt.  (Alexander Hamilton, The Federalist Papers, No. 78)  From beginning to end, America is a republic and the right to vote is inherent to the same.  And the Framers added an exclamation point, because according to Article IV, Section 4,          “The United States shall guarantee to every State in this Union a republican form of government....”    

     The right Thomas Paine said made all others possible—the right to vote—is now in jeopardy, and the Court has put it at risk repeatedly.  In 2000, Justice Scalia stopped the counting of votes in Florida with an injunction, even though James Madison said at the Federal Convention the involvement of the national judiciary “was out of the question.”  Nevertheless, Chief Justice Rehnquist wrote the majority opinion in Bush v. Gore that installed the Governor of Texas, even though Madison said at the Convention, in regard to the Electoral College, the President “is now to be elected by the people.”  Furthermore, if no one had a majority, the decision would be made by the House of Representatives.  In 2013, Chief Justice Roberts wrote the majority opinion in Shelby v. Holder that gutted Section 5 of the Voting Rights Act.  That provision required States or localities with a history of discrimination to get pre-clearance from the Department of Justice before changing laws, rules, or procedures related to voting.  In 2021, Justice Alito wrote the majority opinion in Brnovich v. Democratic National Committee that gutted Section 2.  That provision created an effects test, that is, it prohibited laws whose actual impact was discriminatory.  But the Court has denied and abridged the consent of the governed and made a republic harder to keep. 

II. Original Intention 

     “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.”  (Alexander Hamilton, The Federalist Papers, No. 78; emphasis added)

     The Court is a collegial body that exists to “establish justice.”  (Preamble)  It is not a lifetime Cabinet with a Prime Minister in a robe.  “The Judges, both of the Supreme and inferior Courts, shall hold their offices during good behavior….”  (Article III, Section 1)  Thus, jurists’ deeds must be consistent with their trust.  Only then can their tenure continue, as they become acquainted with those “strict rules and precedents.” 

     The question of “good behavior” arises because of the aforementioned violations of a basic principle of Anglo-American jurisprudence—“Where there is a right, there is a remedy”—and the supremacy clause, as well as “the manifest tenor of the Constitution.”  (Article VI, Clause 2 & Alexander Hamilton, The Federalist Papers, No. 78)  For Judges, like “all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”  (Article II, Section 4; emphasis added)

     It is a mistake to view things in isolation.  The present imbalance is related to past dubious elections.  They were made possible due to the misrepresentation and misuse of a misunderstood institution.

     The Electoral College has two functions—popular choice and national security.  In 2000, there was a failure in Florida to observe the first and to follow the constitutional procedure.  In 2016, foreign influence was a problem—one the Framers feared.  But the Electors failed to act as the final check on fraud and terminate the threat.  Popular choice and national security were cast aside, which caused a political discontinuitya misalignment of means and ends, a condition where a minority rules the majority.  Thus, the results in 2000 allowed the man the Court promoted to put John Roberts and Samuel Alito on the bench; and the results in 2016 allowed the man who benefited from the Russian Connection to add Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

     “…(T)here is one basic check on a runaway Court: presidential elections,” as Professor Bruce      Ackerman pointed out in noting the significance of Bush v. Gore.  “The Supreme Court cannot be permitted to arrange for its own succession.  To allow (Bush the Younger) to serve as the Court’s agent is a fundamental violation of the separation of powers….  The right-wing bloc on the Court should not be permitted to extend its control for a decade or more simply because it has put George W. Bush into the White House.”  (Emphasis added)

     The situation has gotten worse.  On February 13, 2016, a duly elected President was not permitted to make an appointment, when the opportunity arose, based on a remarkable statement by Senator Mitch McConnell—“The American people should have a voice in the selection of their next Supreme Court Justice”—which was used to deny a hearing and a vote on the nomination of Merrick Garland.  But in 2020, the McConnell Rule changed so Amy Coney Barrett could be confirmed. 

     Now comes resonance in the presence of the past.  Professor Ackerman’s concern over “a fundamental violation of the separation of powers” was shared by Alexander Hamilton. 

     “… (T)hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the Legislature and the Executive.  For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’  And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation…”.  (The Federalist Papers, No. 78; emphasis added) 

III. Approbation 

     No to the views of ire that would descend the darkest reaches of invention.  Reform must mean a return to origins, to the intentions of the Framers—and redeem the Court thereby.  Thus, the number of seats must not be increased at random but be equal to the Courts of Appeals, and each Justice would oversee a circuit. 

     Nominations and hearings regarding Judges need a new S.O.P.  These are the essential elements that must be weighed—the institution, the individual, ideology, interaction, image, impact, and intersection.Thus, the current composition of the institution needs to be carefully considered.  An individual who seeks truth—and is not a predictable vote—is invaluable, for ideology is a leading cause of blindness.  Their interaction will affect the image of the institution and its ingredients.  The impact on American jurisprudence and American lives will be significant, in a positive sense, provided respect is paid to Hamilton’s basic requirements of the least dangerous branch—the importance of reason, awareness of its role, and the exercise of restraint.  If acted upon, they make it unlikely that “a long train of abuses and usurpations” will continue.  But one fault merits immediate removal from the bench, because the intersection or union with the other branches undermines the constitutional design and endangers the freedom the separation of powers was meant to defend. 

     Much of the problem is one of neglect, a failure to exercise options readily available.  In regard to the Electoral College, the press could help by educating the public about its two functions—popular choice and national security—and the politicians could enact the National Popular Vote so that it is clear to the Electors who must perform them.  In regard to nominations, the i’s have it. 

     Beyond appointments and removal, thought must be given to regular review of judicial conduct.  A House Judiciary Subcommittee to enforce “good behavior” would be the place for professional and public complaints, which, if criminal, shall be referred to the Department of Justice—and that must be done when nominees commit perjury before the Senate.  Finally, Judges who hide behind unsigned orders are unworthy to sit on any bench.  In the future, they must be required to sign by law.  Meanwhile, waterboys should stand while guarding the bucket—and wear a dunce cap. 

IV. The End 

     The transition from the Articles to the Constitution was necessary to correct the shortcomings of the former.  Then something vital could be done. 

     “A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the     want of a judiciary power.  Laws are a dead letter without courts to expound and define their true     meaning and operation….  To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL.”  (Alexander Hamilton, The Federalist Papers, No. 22, italics added; CAPITAL emphasis Hamilton’s) 

     Because Chief Justice John Marshall understood the importance of reason, the Court’s role, and the exercise of restraint, he produced uniformity in the determinations of the SUPREME TRIBUNAL.  Out of 1,129 cases, 1,042 were unanimous.                

(c)2022 Marvin D. Jones.  All rights reserved. 


https://www.marvindjones.blogspot.com/2018/10/the-least-dangerousduring-good-behavior.html  [THE LEAST DANGEROUS…DURING GOOD BEHAVIOR]

James Madison’s extended definition of a republic:

           ...(W)e may define a republic to be, or at least may bestow that name on, a government            which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.  It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic.  It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.  (The Federalist Papers, No. 39; CAPITAL emphasis Madison's; italics added) 

https://www.marvindjones.blogspot.com/2019/08/the-electoral-college-without-blinders.html  [THE ELECTORAL COLLEGE WITHOUT BLINDERS]

https://www.nationalpopularvote.com  [NATIONAL POPULAR VOTE]