Friday, April 19, 2024

Pride and Perseverance

The Revolution was in the minds of the people…  

                                                                                                John Adams

REPUBLICS ARE RARE, their challenges endless.  Even success brings danger.  Over time, the very qualities that make them possible—virtue, courage, character—tend to be forgotten.  Genuine leadership is dismissed in exchange for entertainment.  Sacrifice—the high tax of greatness—cannot compete with the old soft shoe or tap.  They get and hold one’s attention or at least provide a distraction.  Yet assertion and repetition do not equal truth.  But performance is the key. 

     TO BE ENLIGHTENED is to be in touch with reality.  As Excalibur would yield only to Arthur’s hand and be drawn from the stone, so too a liar will never wield another indestructible weapon.  Alexander Hamilton compares and contrasts a republic and a despotism on the first page of The Federalist Papers.  In the one, decisions are based upon “reflection and choice”; in the other, “accident and force.”  Such was hanging in the balance then, and the scales tremble now.  For in a well-ordered republic, reason prevails, not the whims of the ruler.  Knowledge is the foundation of the American Republic and, when acted upon, its salvation. 

     THOUGHT, WORD, AND DEED are indivisible.   Yet principles—no matter how lofty—do not live on parchment, they flow in the veins of the people.  Thus, citizenship consists of rights and duties.  The one cannot exist without the other, or, without the latter, the former could never be.  

     PRESIDENT WASHINGTON understood sacrifice was necessary for survival.  Thus, he had Secretary of War Henry Knox send a report to Congress in support of Universal National Service.  What they had in mind cannot be ignored.  It was a call to duty—with shared burdens and benefits—beyond national security.  Under the Knox Report, to “provide for the common defense” did not mean only the common people do the defending.  (Preamble)  “All being bound, none can complain of injustice, on being obliged to perform his equal proportion.”  Privilege had no place in the plan.  “It is the wisdom of political establishments to make the wealth of individuals subservient to the  general good, and not to suffer it to corrupt or attain undue indulgence.”  As a result, “A glorious national spirit will be introduced, with its extensive train of political consequences.” 

     AMERICA is a metaphysical metaphor.  The Great Seal reminds us “that things which are seen were not made of things which do appear.”  (Hebrews 11:3, KJV)  We are spiritual beings in material bodies, as the eagle and the All-Seeing Eye attest.  This child of the Enlightenment is an idea disguised as a country; and, in the event of disaster, there will be an exodus.  The founding documents were made to travel.  For a designer nation is committed to principles, not real estate nor an individual.  And even then and there, America is where time and space give us a chance to make our dreams commonplace.

 (c)2024 Marvin D. Jones.  All rights reserved.


The title of this article comes from the close of JFK’s first State of the Union Address.

[The Knox Report]


Thursday, February 22, 2024

This Is Embarrassing

“The exclusive privilege of originating money bills will belong to the House of Representatives.”  (Alexander Hamilton, The Federalist Papers, No. 66) 

AMERICA IS A CHILD OF THE ENLIGHTENMENT.  But reason is anathema to some.  And they divide the idea and the reality.


     This is not something new.  The President sends the budget to Congress in the beginning of the calendar year.  The model, which Alexander Hamilton mentioned in The Federalist Papers as “the preparatory plans of finance,” has been followed.  (The Federalist Papers, No. 72)  Under the Budget and Accounting Act of 1921, the fiscal year began on the first of July.  Now, under the Congressional Budget and Impoundment Control Act of 1974, it begins on the first of October.  But, even with the additional time, the twelve appropriations bills do not get passed on schedule.  A continuing resolution, a measure to keep spending at their current levels, becomes necessary. 


     “The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or the judiciary, were a breach of their privilege and an outrage to their dignity.”  (Alexander Hamilton, The Federalist Papers, No. 71)  But the power of the purse does not permit the Legislature to stop the other branches from exercising their respective powers.  Therefore an effects test is necessary. 

     The Fundamental Charter places limits on what Congress can do in respect to the other branches.  The President’s salary “shall not be increased nor diminished during the period for which he shall have been elected….”  (Article II, Section 1, Clause 7)  The same applies to “the principal officer in each of the executive departments.”  (Article II, Section 2, Clause 1)  Likewise, judicial salaries “shall not be diminished during their continuance in office.”  (Article III, Section 1)  The implications cannot be ignored:  Any threat to their independence is inconsistent with “the manifest tenor of the Constitution.”  (Alexander Hamilton, The Federalist Papers, No. 78) 


     Everyone who takes the oath to uphold the Constitution has made a commitment to the goals in the Preamble.  The serious-minded may approach the matter in a variety of ways.  They cannot, in good faith, deny the impossibility of achieving them without a budget.  Legislators fail in that regard when they decide to showoff instead of showing up.  Then the legitimacy of their efforts—and commitment to the supreme law of the land—is questionable, because the Government of the United States must function. 


     Darkness comes without sunset.  Who knows the time of day?  For a mystery sits on the horizon. 


     “Who thought up this crazy idea?  Certainly not George Washington nor James Madison.  During the first 194 years of the American Republic, from 1787 to 1981, government shutdowns NEVER HAPPENED.”  (OFW, 01-25-2019) 

     In March 1980, in response to a question from Representative Gladys Noon Spellman (D-MD) about the Antideficiency Act, Comptroller General Elmer Staats wrote, We do not believe that the Congress intends that federal agencies be closed during periods of expired appropriations.”  (Government Executive, 10-27-2022) 

     In April, Attorney General Benjamin Civiletti disagreed.  “One hundred and ten years after its enactment,” as M.A. Davis, an historian noted, “he found for the first time that the Antideficiency Act allowed for no government agency to operate without funding.”  (Time, 11-16-2023)           

     “It is my opinion that, during periods of 'lapsed appropriations,' no funds may be expended except as necessary to bring about the orderly termination of an agency’s functions, and that the obligation or expenditure of funds for any purpose not otherwise authorized by law would be a violation of the Antideficiency Act.”  (Opinion of the Attorney General, 04-25-1980) 

     One hundred and ten years after its enactment, the Attorney General made another decision for the first time. 

     “...(T)he Department of Justice will take actions to enforce the criminal provisions of the Act in appropriate cases in the future when violations of the Antideficiency Act are alleged.  This does not mean that departments and agencies, upon a lapse in appropriations, will be unable logistically to terminate functions in an orderly way.”  (Opinion of the Attorney General, 04-25-1980) 

     Civiletti was technically right and totally wrong, for he missed the big picture. 

     “I couldn’t have ever imagined these shutdowns would last this long of a time and would be used as a political gambit,” he said.  My opinion “was a purely direct opinion on a fairly narrow subject and has been used in ways that were not imagined at the time.”  (The Washington Post, 01-19-2019) 

     Every question—Why do lawyers not have lemonade stands?”—does not merit serious research.  Just say, They prefer turnips.” 

     “The whole idea that someone would shut down government in order to gain leverage over a political opponent was not part of the discussion in 1980,” said Kenneth D. Ackerman, an historian and lawyer.  “The framers of the Antideficiency Act of 1870 did not conceive that they were making a political weapon.”  (The Washington Post, 01-19-2019) 


     One way to avoid problems in the future is to amend the Congressional Budget and Impoundment Control Act of 1974 so that spending stays at current levels, with a cost of living adjustment, until a budget is passed.  And to bring down the curtain on a related drama, amend the Act and make the Gephardt Rule law.  It simply stated that the debt ceiling was “deemed to have passed” when a budget resolution was approved. 

     In the event of congressional failure, it may be necessary for the President to raise the debt ceiling and instruct the Attorney General to review and rescind the Civiletti opinion on the Antideficiency Act.  Duty requires nothing less. 

     “Energy in the Executive is a leading character in the definition of good government....  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.”  (Alexander Hamilton, The Federalist Papers, No. 70) 


     The playacting must end.  The consequences of failure are serious—shutdowns, America’s credit rating downgraded, and added cost.  Thus, when Republicans control the House of Representatives, the debate cannot be defined in their terms, if “fiscal responsibility” is to be more than a GOP catchphrase.  The test is to align the budget with the goals of the Preamble and make the idea and reality one.

(c)2024 Marvin D. Jones.  All rights reserved.


V    [01-25-2019]    [10-27-2022]    [11-16-2023]    [Opinion of the Attorney General, 04-25-1980]    [01-19-2019]


Monday, February 12, 2024

A Wake Inland

“Eat thou not the bread of him that hath an evil eye, neither desire thou his dainty meats:  For as he      thinketh in his heart, so is he:  Eat and drink, saith he to thee; but his heart is not with thee."  

                                                                                                          (Proverbs 23:6-7, KJV)

THESE FINAL HOURS…are…cruel, slow, and agonizing.  Denial, Anger, Bargaining, and Depression pay their respects at a pauper’s grave.  It is unbearable, a sight to behold, a stake in the heart—the death of a belief.  And Acceptance is nowhere to be seen.

     The country’s long-form birth certificate is questioned.  Its ideals—“life, liberty, and the pursuit of happiness”—are dismissed.  The list of grievances against the King is ignored, and a goodbye is replaced with a welcome mat.

     Perhaps a concussion makes it hard to remember how Benjamin Franklin responded when, after the  Federal Convention, Mrs. Powel asked him, “Well, Doctor, what have we got--a republic or a monarchy?” and he replied, “A republic, if you can keep it.”  Perhaps amnesia makes it hard to recall that Alexander Hamilton compares and contrasts the King of Great Britain with the President of the United States.  “The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.”  (The Federalist Papers, No. 69)  Heaven forbid!  Dementia makes it impossible to know that the Constitution prohibits the granting of titles of nobility.  (Article I, Section 9, Clause 8 & Section 10)

     George Washington was Commander in Chief of the Continental Forces, the man on horseback determined that the United States of America would be a republic.  He mounted up to move away from monarchy and despotism.  Thus, he presided over the writing of the Constitution.

     The Chief Traitor does tough guy schtick.  To some, it does not matter that he is a certified sissy.  For those in despair that America is a country—and not a country club—every part of his unsavory       persona is embraced.  They are fine with him saying, “I have an Article II where I have the right to do whatever I want as President.”  That includes “the complete power to pardon” and claims of absolute immunity, which strip him bare.  Are we going to lose the Republic to this guy—the imitation man who is a spoiled brat on Tony the Pony?  Well, at least bone spurs come in handy when he says, “Giddy up.”

     This is insulting.  We have shown him a sun dial, an hourglass, and a watch.  So, why are we still giving him the time of day?  And now, after leading his horse to water, must we also supply a straw?

     Corruption comes by degrees, and deeds do not lead the way.  But the steps from here to there may be nearly imperceptible.  “The Holocaust did not begin with killing; it began with words.”  (Statement, United States Holocaust Museum, 11-21-2016)  And what is true of one horror applies to another.

     The boisterous minority mourning in America does not have a right to rule.  These un-Americans depend upon endless assertion and repetition that does not equal truth; and they use threats and violence because “the consent of the governed” was fine as long as they got their way.  But now that is changing.

     Shays’s Rebellion was the exclamation point on a sentence to terminate the Articles of Confederation.  The Founders understood that “in order to form a more perfect Union,” it was necessary to “insure domestic tranquility.”  (Preamble)  For every government ought to contain in itself the means of its own preservation.”  (Alexander Hamilton, The Federalist Papers, No. 59; italics his)  Thus, they decided “To provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions.”  (Article I, Section 8, Clause 15)  Furthermore, the United States must protect every State “against invasion” and “against domestic violence.”  (Article IV, Section 4)  Finally, as a result of the Civil War, Section 3 of the Fourteenth Amendment prohibits anyone who has taken an oath to support the Constitution and then “engaged in insurrection or rebellion against the same” from holding Federal or State office.

     In response to the Whiskey Rebellion, President Washington called “the Militia…into the actual service of the United States” to enforce respect for the Constitution.  (Article II, Section 2, Clause 1)  President Lincoln did the same in response to the attack on Fort Sumter.  And now, Section 3 of the Fourteenth Amendment must be enforced “in order to form a more perfect Union…and secure the blessings of liberty to ourselves and our posterity.”  (Preamble)

     While we must be relentless and ruthless in countering lies with a blistering barrage of facts, that is not enough.  It is time to end the posturing of people who pretend to be patriots.  The oath to support and defend the Constitution—“against all enemies, foreign and domestic”—requires nothing less.  National security is the issue.  The Rubicon has been crossed—and the rebellion must be crushed.

(c)2024 Marvin D. Jones.  All rights reserved.

[Tony the Pony by Marx]

Saturday, January 06, 2024


And the light shineth in darkness; and the darkness comprehended it not.  (John 1:5, KJV)


THE ALMIGHTY is referred to as the God of truth four times in the Tanak or Old Testament.  (Deuteronomy 32:4, Psalm 31:5 & Isaiah 65:16)  And the same point is made many more times indirectly. 

     In some congregations, there is a weekly Sabbath observation.  “We serve the God of truth.  His word is truth.  His prophets are those who speak the truth.”  Its importance is acknowledged in the New Testament.  “Finally, brethren, whatsoever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good report; if there be any virtue, and if there be any praise, think on these things.”  (Philippians 4:8, KJV) 

     The truth has nothing to fear.  It provides clarity and identifies the adversary.  “For God is not the author of confusion….”  (I Corinthians 14:33, KJV) 

     When Moses asked, “Who is on the LORD’s side?”, that was not a religious test.  (Exodus 32:26)  He wanted those who followed the truth to come forth.  Article VI, Clause 3 does the same.  “…(A)ll…officers, both of the United States and of the several States, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.”  (Emphasis added) 

     God is the only One who can say, “I have sworn by Myself.”  (Isaiah 45:23 & Jeremiah 49:13, KJV)  Thus, when George Washington took the oath to become President of the United States, he added four words:  “So help me God.”  And those of us who follow in his footsteps do the same.  But all who place a hand on the Bible—or have it in mind while raising the right hand—should beware:  “If a man vow a vow unto the LORD, or swear an oath to bind his soul with a bond; he shall not break his word, he shall do according to all that proceedeth out of his mouth.”  (Numbers 30:2, KJV)  And what was said in the Tanak or Old Testament is echoed in the New.  “Be not deceived; God is not mocked: for whatsoever a man soweth, that shall he also reap.”  (Galations 6:7, KJV) 

     For some, there is possibility or probability.  For “the High and Lofty One who inhabiteth eternity,” there is reality.  (Isaiah 57:15, KJV)  “As I live, saith the LORD…”    (Numbers 14:28, Isaiah 49:18; Jeremiah 22:24, Ezekiel 5:11, Ezekiel 14:16, Ezekiel 14:18, Ezekiel 14:20, Ezekiel 16:48, Ezekiel 17:16, Ezekiel 18:3, Ezekiel 20:3, Ezekiel 20:31, Ezekiel 20:33, Ezekiel 33:11, Ezekiel 34:8, Ezekiel 35:6, Ezekiel 35:11, Zephaniah 2:9, Romans 14:11; and similar matches—Jeremiah 46:18, Ezekiel 17:19 & Ezekiel 33:27)  And so, for deniers, there are consequences.  “Be wise now therefore, O ye kings: be instructed, ye judges of the earth.  Serve the LORD with fear, and rejoice with trembling.”  (Psalm 2:10-11, KJV) 

(c)2024 Marvin D. Jones.  All rights reserved.


[Arise O Lord] 

Wednesday, November 22, 2023

Sixty Years Ago

HISTORY WAS HIS TUTOR.  Father Time talked to him about all that he had seen.  The stories held his attention and made a deep impression. 

     High ideals help us focus—and reveal our flaws.  They ignite a contest between hubris and humility. 

     In 1960, he was well aware that we were nowhere near our potential.  During the campaign, he often opened with “I am not satisfied…” in pointing out our shortcomings.  He wanted no one left behind.  But he favored nuance over nonsense. 

     Eleven days before his inauguration, in an address to a joint session of the Massachusetts Legislature, he recalled the words of John Winthrop, who said, “We must consider that we shall be as a city upon a hill.  The eyes of all people are upon us.”  The light of those words had not dimmed over three centuries later, and the young man used them as a spotlight. 

     “And when at some future date the high court of history sits in judgment on each of us, recording whether in our brief span of service we fulfilled our responsibilities to the state, our success or failure, in whatever office we hold, will be measured by the answers to four questions.”  They concerned courage, judgment, and integrity.  But the last said it all.  “Finally, were we truly men of dedication, with an honor mortgaged to no single individual or group, and compromised by no private obligation or aim, but devoted solely to serving the public good and the national interest?” 

     In the first State of the Union Address, he said, “Before my term has ended, we shall have to test anew whether a nation organized and governed such as ours can endure.  The outcome is by no means certain.  The answers are by no means clear.” 

     He appealed to the best in all of us to realize “our hopes for freedom and the future.”  For success was not dependent “simply upon those of us in this chamber….  And in final analysis, they rest most of all upon the pride and perseverance of our fellow citizens of the Great Republic.” 

     In the second State of the Union Address, “an idealist without illusions” said, “This country cannot afford to be materially rich and spiritually poor.”  Otherwise, “a more perfect Union”—the first goal set forth in the Preamble—cannot be achieved.  His remarks were a reflection of the fact that we are spiritual beings in material bodies, which is why the Great Seal of the United States of America has two sides. 

     Like George Washington, he embodied character—the union of thought, word, and deed directed toward a noble end.  If that was not apparent then, it should be obvious now. 

     On November 22, 1963, the vision of President Kennedy was made clear in remarks he had prepared for delivery at the Trade Mart in Dallas.

     “This country is moving and it must not stop.  It cannot stop.  For this is a time for courage and a time of challenge.  Neither conformity nor complacency will do.  Neither the fanatics nor the fainthearted are needed….  So let us not be petty when our cause is so great.  Let us not quarrel amongst ourselves when our nation’s future is at stake.  Let us stand together with renewed confidence in our cause—united in our heritage of the past and our hopes for the future—and determined that this land we love shall lead all mankind into new frontiers of peace and abundance.”

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

Monday, August 28, 2023

The Most Dangerous…With Lifetime Tenure

An immediate reaction to some Supreme Court rulings is indignation, and, beyond the instant, there      is a tendency to respond with slogans or soundbites instead of sound policy.  There is no room for subtlety.  Yet three things must be kept in mind in respect to the judiciary—elections, appointments, and removal.  But to fixate on one—to avert our gaze—is to share the fate of an inattentive juggler.  For the majority on the Court exists because of the first two, and a remedy would be the third, as well as the aforementioned.

 I.  Introduction

BEFORE WE GET CAUGHT IN A THICKET OF THE COMMON LAW and the Constitution, let us consider an initial abuse of power that created the contemporary problem.  It was later exacerbated; the one led to the other.  Ahhh…  “Elections have consequences,” politicians and the press never tire of telling us.  But dubious elections have consequences too, and they can be devastating.

 II.  Shenanigans

      The 6-3 majority of the Supreme Court is a result of events in Florida—and Pennsylvania, Michigan, and Wisconsin.  The former, in 2000, made possible the appointments of John Roberts and Samuel Alito.  The latter, in 2016, led to those of Neil Gorsuch, Bruce Kavanaugh, and Amy Coney Barrett.  They were all greeted by Clarence Thomas who had been appointed in 1991. 

     The ascension of Roberts and Alito was made possible because Governor Jeb Bush’s two successive Secretaries of State, Sandra Mortham and Katherine Harris, ordered nearly 58,000 “ex-felons,” who were ineligible under State law, removed from the voter rolls.  But the list was inaccurate and affected Democrats disproportionately.  The United States Civil Rights Commission estimated that a minimum of 8,000 qualified voters were removed.  Thus, voter suppression carried the day and the Governor’s brother supposedly “won” by 537 votes. 

     The ascension of Neil Gorsuch, Bruce Kavanaugh, and Amy Coney Barrett was made possible because Kris Kobach, the Secretary of State of Kansas and commander of Operation Crosscheck, which has received little coverage, provided the perfect platform to piggyback the Russian Connection that the gentleman from New York rode to victory.  Kobach’s faulty list of approximately 7 million voters was used by GOP counterparts in 27 States to remove Democratic or Democratic-leaning voters from the rolls by claiming they were voting in multiple States.  Then, in the three crucial States that were supposed to be the Democratic firewall, the gentleman from New York “won” by 44,000 in Pennsylvania, 11,000 in Michigan, and 23,000 in Wisconsin.  Crosscheck removed up to 344,000 in the first and 449,000 in the second.  In the third, Photo ID, which is used to stop non-existent “voter fraud,” made the difference by depressing turnout in Milwaukee.  Thus, voter suppression carried the day and the 20 electoral votes in Pennsylvania, 16 in Michigan, and 10 in Wisconsin went to the Republican instead of Mrs. Clinton.  And so, the legitimacy of the gentleman from New York goes beyond the question of foreign influence. 

     “...(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) 

     On July 25, 1787 at the Federal Convention, James Madison reviewed all the methods that had been proposed—and rejected—and concluded that the Electoral College meant that “The President is now to be elected by the people.”  (The Electoral College by Lucius Wilmerding, Jr., 3 & 19)  The involvement of the judiciary was “out of the question.”  Thus, Bush v. Gore was an act of judicial usurpation. 

     Unfortunately, at the time of the Convention, there was no way to reduce "the different qualifications in the different States to one uniform rule," which left a series of hurdles.  (James Madison, The Federalist Papers, No. 52)  But now, because of the Fourteenth, Fifteenth, Nineteenth, and Twenty-sixth Amendments, there is a national standard with consequences for States that deny or abridge the right to vote, and, therefore, at long last, “the original intention” of James Madison and Alexander Hamilton will come to pass that “The President of the United States would be an officer elected by the people…”  (Alexander Hamilton, The Federalist Papers, No. 69)  The National Popular Vote will make it so, and, when that is done, the Electoral College can perform its two functions, popular choice and national security, that is, thwart foreign influence.  That would avoid another political discontinuity, a misalignment of means and ends—a condition where a minority rules a majority, which, as Hamilton noted, “contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail.”  (The Federalist Papers, No. 22)  Furthermore, “one basic check on a runaway Court: presidential elections” will be in place. 

III.  Background

      The Court, when properly functioning, is a collegial body that exists to “establish justice.”  (Preamble)  It is not a lifetime Cabinet with a Prime Minister in a robe, much less a Privy Council and the Chief Justice the reigning monarch.  The tenure of those on the bench was not extended to make them barons.  The intention was to strengthen inherent weakness; for, as Hamilton noted, the judiciary controls neither the purse nor the sword.  (The Federalist Papers, No. 78)  Judges were to serve “during good behavior”; decide cases or controversies; and, from the beginning, they issued no advisory opinions, not even for President Washington.  (Article III, Section 1 & Article III, Section 2, Clause 1) 

IV.  Appointments

     If the supreme tribunal is ever to become a collegial body like the one under Chief Justice John      Marshall—who understood the importance of reason, the Court’s role, and the exercise of restraint, and produced 1,042 unanimous decisions out of 1,129 cases—then the nomination and confirmation process must be improved.  These are the essential elements that must be weighed—the institution, the individual, ideology, interaction, image, impact, and intersection.  The nature of the institution—and the current composition of the Court—has to be considered when an individual is nominated.  Ideology, a leading cause of blindness, cannot be ignored and merits a thorough examination.  That interaction affects the Court’s image.  But the impact of their decisions on lives and jurisprudence must be anticipated across a wide range of scenarios.  Finally, the intersection or union with the other branches undermines the constitutional design and endangers the freedom the separation of powers was meant to defend.  “…(L)iberty 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….”  (Alexander Hamilton, The Federalist Papers, No. 78; emphasis added) 

V.  Reform? 

     A Code of Ethics is not enough.  It is the bare minimum. 

VI.  Recommendations 

     In the meantime, some members of a 6-3 Court seem to be under the impression that the claim of  lifetime tenure implies impunity.  But “good behavior” sets the standard. 

The provision for judicial tenure “during good behavior” is located in Article III, Section 1….  Derelictions from “good behavior,” on the other hand, were reachable in the English courts by a proceeding to forfeit one’s office.  …(I)ts sole object was to remove the misbehaving appointee….  In sum, at common law there was a civil forfeiture proceeding for “misbehavior” brought in a court, and a criminal impeachment proceeding brought by and in the Parliament.  Never, so far as I could discover, did an English impeachment charge a breach of “good behavior”; instead the stock charges were “high treason and other high crimes and misdemeanors.”  The intermixture of these quite distinct common law procedures and doctrines has bred analytical confusion in the United States.  (Impeachment: The Constitutional Problems by Raoul Berger, 124-125; emphasis added) 

     There are three methods of removal for those who miss the mark—resignation, impeachment, and scire facias.  The first depends upon the individual; the second on the House and the Senate; the third on a judicial panel. 

     “Energy in the Executive is a leading character in the definition of good government....  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.”  (Alexander Hamilton, The Federalist Papers, No. 70) 

     The oath requires the President of the United States to “preserve, protect and defend the Constitution.”  (Article II, Section 1, Clause 8)  Then he must “take care that the laws be faithfully executed.”  (Article II, Section 3)  The Constitution is the first law“the supreme law of the land”—and the acts of the three branches “shall be made in pursuance thereof.”  (Article VI, Clause 2)  Thus, here, on the cusp of theory and practice, no one is in a better position to educate the public about what must be done regarding the judiciary in respect to appointments, ethics legislation, and creation of a special court. 

     First, appointments.  The President "shall nominate, and by and with the advice and consent of the Senate, shall appoint...Judges of the Supreme Court...."  (Article II, Section 2, Clause 2)  Accordingly, he may send a Special Message to the Senate and inform them that Mitch McConnell’s abuse of advice and consent cannot be allowed to happen again.  A law degree, law review, a law license, a clerkship, and a favorable rating from the ABA is only a start.  Thus, the need for a comprehensive approach—the institution, the individual, ideology, interaction, image, impact, and intersection—is obvious and overdue.  But should a future nomination be given the McConnell treatment, the President will consider that, as Glenn Kirschner put it, “a waiver of the Senate’s ‘advice and consent’ responsibilities.”  Therefore, pursuant to the Article II, Section 3 duty to “commission all the officers of the United States,” the President shall do so and instruct his designee to take a seat on the Court. 

     Second, regarding legislation, the President “shall…recommend…such measures as he shall judge necessary and expedient.” (Article II, Section 3)  An Emoluments Clause Act is “necessary” to enforce Article I, Section 9, Clause 8 and insure that public officers serve one master and adhere to the oath—“to support and defend the Constitution…against all enemies, foreign and domestic”—by requiring them to place their holdings in Treasury securities.  Failure to do so must be considered as evidence of bribery and, in the case of jurists, require a removal hearing.  The First Congress acknowledged the relevant common law, such as the writ of scire facias, in Section 14 of the Judiciary Act of 1789, and Section 21 of the Crimes Act of 1790 stated that a Judge convicted of bribery shall be “forever disqualified to hold any office.”  Thus, a ‘Good Behavior’ Act is an “expedient” measure to acknowledge the definition of the phrase, as understood by Sir Edward Coke, Matthew Bacon, and Sir William Blackstone, so that it is not rendered an oxymoron.  A special court to remove jurists who think otherwise could consist of District and Circuit Judges, and possibly one Supreme Court Justice.  (Berger, 174-175; Article III, Section 1 & Article I, Section 8, Clause 18) 

     Third, District and Circuit Court Judges, who obey the rules, may want to encourage their higher brethren to do the same.  But if their words fall on deaf ears, they may want to demand that their superiors be required to do so.  For good citizenship is vital “during good behavior.” 

     Finally, journalists like to say that they write the first draft of history and, with just a bit of historical perspective, they could provide more accurate descriptions.  “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….”  (Alexander Hamilton, The Federalist Papers, No. 78; emphasis added)  And so, those Justices who overturn settled law willy-nilly are radicals, not conservatives.  Thus, whether past or present, it is better to talk to Mr. Ed instead of Wilbur. 

VII.  Close

      While the least dangerous “during good behavior,” jurists can be the most dangerous with lifetime tenure.  The confusion that the two are one and the same must change because the premise leads to a false conclusion.  The Supreme Court is not, as Ken Starr would have it, “first among equals.”  The judiciary is subject to checks and balances like the other co-equal and co-ordinate branches, and only then can the Justices begin to be trusted “to do their duty as faithful guardians of the Constitution….”  (Alexander Hamilton, The Federalist Papers, No. 78)

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

[Anywhere Is by Enya]

 I.  Introduction

[The Great Florida Ex-Con Game by Greg Palast]

[Voter roll purge in the 2000 Florida election by Source Watch] 

II.  Shenanigans    [11-17-2014]    [Operation Crosscheck—here and first two below]    [05-25-2017]    [02-02-2018]

[The Electoral College]

[The National Popular Vote] 

III.  Background

[Advisory opinions] 

VI.  Recommendations

[Glenn Kirschner—Counter Senate Obstruction] 

Institutes of the Laws of England by Sir Edward Coke, A New Abridgment of the Law by Matthew Bacon, and Commentaries on the Laws of England by Sir William Blackstone

[Mr. Ed] 

VII.  Close

[The Imperial Court]

[The Three Branches…Executive, Legislative, Prejudicial] 

Tuesday, July 04, 2023

A Designer Nation

“Whenever we as Americans have faced serious crises, we have returned to fundamentals….” 

                                                                                                                      Ralph Ellison

THE DECLARATION OF INDEPENDENCE makes an appeal to heaven, but a different pole star.  Instead of the divine of right of kings, “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, that among these are life, liberty and the pursuit of happiness.  That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.  (Emphasis added)  There is a departure from royal grants.  Here, rights come from Nature’s God.

     A designer nation is a matter of creation.  It is based on principles, not birth.  It is where the obscenity of h_ _ _land—and chants of “Blood and soil!”—have no place.

     America is a child of the Enlightenment and mankind’s attempt to become transcendent.  The Great Seal is a symbol of that aspiration.  Its two sides represent the material and spiritual realms; the eagle on the one and the pyramid and the all-seeing eye on the other define the struggle “to form a more perfect Union.”

     Under God’s leadership, Ancient Israel faced the gap between the idea and the reality—the tension  between the material and the spiritual.  For after witnessing miracles, there were, to be generous, doubters.  Let Moses step away and the people demanded a golden calf.

     Whether past or present, liars dominate the stage.  And that problem has existed since the encounter with the serpent in the Garden of Eden.  Yet assertion and repetition do not equal truth.  They never have—and never will.  But falsehood is not defeated on the defensive.  We must take the battle to the enemy.  For it must be remembered that knowledge is the foundation of the American Republic.

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

[Transcendence (Original)]

[Transcendence (Orchestral)]

[‘In Order to Form a More Perfect Union’]