“Yet it is folly to argue against determined hardness; eloquence may strike the ear, and the language of sorrow draw forth the tear of compassion, but nothing can reach the heart that is steeled with prejudice.”
Thomas Paine The American Crisis
THE DECLARATION OF INDEPENDENCE begins with ideals, followed by a list of grievances, and ends with a wave goodbye to King George III. It was a Dear John letter for the ages.
I
Now the
gentleman from New York would have us believe MAGA means monarchy’s actually
great, America. And if he is installed, the plan is to make
monarchy America’s government again. He
has prepared the way with talk of “the complete power to pardon,” and a self-pardon* would, in effect, make the President of the United States a king.
The country’s birth certificate should be enough. But some want more. Could there be another hint?
When Benjamin Franklin and James McHenry left on the final day of the Federal Convention, they were approached by Mrs. Powel of Philadelphia.
“Well, Doctor, what have we got—a republic or a monarchy?”
“A republic,” Franklin replied, “if you can keep it.”
The strongest proponent of executive power at the Convention knew that a republic is one thing, a monarchy another. “The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.” (The Federalist Papers, No. 69) “…(I)n a republic...every magistrate ought to be personally responsible for his behavior in office.” (Alexander Hamilton, The Federalist Papers, No. 70; emphasis added) In England, there is a different maxim—“the king himself can do no wrong”—which is “for the sake of the public peace.” (Blackstone, Volume I, 237 & Alexander Hamilton, The Federalist Papers, No. 70, respectively)
II
The technicality is a tool, not of creation but hopscotch justice allowing the connected to skip over one principle after another. And behold, more billable hours for members of the club. By rule, the vote of four Justices is sufficient to take a case, and the radicals decided to consider what was not in dispute. This is insulting and embarrassing. The oral arguments were not so much a hearing as a red herring. By taking an assertion seriously, it is given a veneer of legitimacy. Thus, what was laughable stands a chance to become law. And the Breach Boys sang, “We’re hanging ten on a tangent/Just us, USA.”
Whenever the Court finally acts, and whatever their arrangement of words, the Justices have already done the gentleman from New York a favor though. No trial of the man who would be king will take place in Washington before the election. The self-styled ”strict constructionists” will point out how all the proper procedures were followed—and they will be technically right and totally wrong. The Court is lost.
III
Condemnation of a specific decision calls for precision. A ruling on immunity presents an opportunity to make constructive criticism and avoid more confusion. Some would have us believe in magic and mislead with a distraction—to expect a different result from a device. But rather than reading the easy to follow instructions and building a Rube Goldberg contraption—with term limits and every President getting two appointments—and calling it reform, there is an alternative.
Actual reform as opposed to “Abracadabra!” and “Presto!” involves three things—elections, appointments, and removal. All three must change.
The current imbalance on the Court is a result of two dubious elections, in 2000 and 2016. The former made possible the appointments of John Roberts and Samuel Alito. The latter led to those of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Clarence Thomas welcomed them aboard.
At the time of the Convention, there was no way to reduce “the different qualifications in the different States to one uniform rule.” (James Madison, The Federalist Papers, No. 52) But 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. The original intention of James Madison in regard to the Electoral College—that “The President is now to be elected by the people”—can be fulfilled by the National Popular Vote. (The Electoral College by Lucius Wilmerding, Jr., 3 & 19) That will get rid of any future 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)
A rigorous nomination and confirmation process is more likely to produce a favorable result than a witty invention. The latter is a gizmo that grabs one’s attention and gets a “Gee Whiz!” The former is comprehensive and focused on creating a Court that can “establish justice” with members who are “faithful guardians of the Constitution.” (Preamble & The Federalist Papers, No. 78) For it weighs the essential elements—the institution, the individual, ideology, interaction, image, intersection, and impact—carefully. The latter does not start with basics but strikes a pose and continues to view an individual in isolation. That does not solve the problem and requires legislation for no meaningful end. The former is immediate and, with Senate hearings on the conduct of the Court, lays a foundation for what is to follow—Court expansion.
Each branch does its own housekeeping. The House and the Senate may “expel a member” by a two-thirds vote. (Article I, Section 5, Clause 2) The President may dismiss a member of the Cabinet. (James Madison, Speech in the House of Representatives, June 16, 1789) But the current imbalance on the Court is exacerbated by the lack of an effective removal power. Impeachment was intended primarily for the Executive, the one who holds “the sword of the community,” and thus the greatest threat to the Constitution. (Alexander Hamilton, The Federalist Papers, No. 78) Term limits belong on the cover of Vogue. They are fashionable and strike a pose. But they are unnecessary.
The judiciary may dismiss a member by a scire facias proceeding which determines whether one is serving “during good behavior.” (Article III, Section 1) It is a routine check, and the standard for such a disciplinary measure is clear. Alexander Hamilton addressed the three basic requirements of the least dangerous branch. First, the importance of reason. Because the judiciary has “merely judgment,” opinions are persuasive if they make sense. Second, awareness of its role. The judiciary must have “complete independence…to do their duty as faithful guardians of the Constitution.” (Alexander Hamilton, The Federalist Papers, No. 78) Third, the exercise of restraint. “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) Instead, the Court defies reason, disrespects its role, and discards restraint. Thus, what passes for judicial review demands a review of the judiciary; and a reminder that the position is conditional would be a “necessary and proper” rebuke. (Article I, Section 8, Clause 18)
IV
Isolation must end. We can no longer pretend that these things—elections, appointments, and removal—are unrelated. Instead, it is time to create the conditions where the Court acts as a collegial body and matches that of Chief Justice John Marshall, when, out of 1,129 cases, 1,042 were decided unanimously.
In his first inaugural address, President Lincoln spoke of how the relationship between the political branches and the judiciary determines whether our system is based on the consent of the governed.
“The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
The one who swears to “preserve, protect and defend the Constitution” must “take care that laws be faithfully executed,” and the Constitution is “the supreme law of the land”—the first law. (Article II, Section 1, Clause 8; Article II, Section 3 & Article VI, Clause 2) Therefore, if the Supreme Court makes a questionable decision, the President must inform the public whenever its implementation would be disastrous. Failure to do so would be dereliction of duty. For the response to the immunity ruling may be the last chance to remind one and all that neither the President nor the Court can act with impunity.
(c)2024 Marvin D. Jones. All rights reserved.
https://marvindjones.blogspot.com/2017/09/the-schlesinger-moment.html
[The Schlesinger Moment* - there is no such thing as a self-pardon]
https://youtu.be/8JEiJDGHsX0?si=9TA8VXEEMuQUqgdt
[Surfin’ USA]
https://marvindjones.blogspot.com/2019/08/the-electoral-college-without-blinders.html
[The
Electoral College Without Blinders]
https://www.nationalpopularvote.com
[National Popular Vote]
https://youtu.be/GuJQSAiODqI?si=y0tCcYPjaFBNES0_
[Vogue]
