The Majority Is Intended To Rule!

I know the media has distorted this fact into something else, but they did it to keep you from looking at what is really happening. They intend to make sure that you focus on the race for president, so that you don’t see that our government has become exactly what the framers had intended to avoid.

The President is a figurehead, a statesman, an honorable person, whose main job it is, to execute the will of the people. Face it! The President of the United States really can’t do much without the advice and consent of the Senate. Look at Article II of the U.S. Constitution.

The power of the U.S. Government rests in the hands of the Legislature. The U.S. Constitution addresses the Legislature first. Why? –Because its function is the most important. It is the most powerful. It alone consists of “the voice of the people”.

The Legislature can remove the President and Vice-President from office. They can take a judge of the Supreme Court of off the bench. To do this 2/3rds of the members must agree. The majority rules! They can create law, even when the President doesn't agree. Majority Rules! They alone can declare war. The majority rules!

Everything about our country is based on majority rule. This also takes into consideration that the majority are good people, and will look out for the minority. The first ten Amendments to the Consitutution, our Bill of Rights, is intended to protect all of us, including the minorities.

What our framers intended to prevent is “class rule”. The rich should not rule, and neither should the poor. the doctors should not rule, and neither should the lawyers. The framers made sure that the people elect their representatives. They made sure that compensation of our elected servants was well below that of the average citizen. They didn’t want the job of elected representative to be one of which people aspire to have because of the riches they would gain. The only intended great benefit of serving those who elected you, was the honor of having been bestowed their voice. The job of elected representative is supposed to be a sacrifice. Only those with a deep sense of duty should want such a position.

What we currently have is class rule. They won’t admit it, and those elected probably don’t see it.

Lawyers dominate our government. This is class rule. Good or bad, they have all been taught to preserve the appearance of, and enhance the operation of, their own profession; to preserve the appearance of the judiciary.

Before some of you start to bad-mouth lawyers; remember, the people elected them! It’s not the fact that they are lawyers that presents us with a problem. It’s the fact that, one profession is dominating the representation of the people, that should sound the alarm.

Unfortunately, this dominance also causes a problem with our system of checks and balances. Lawyers are responsible for removing other lawyers from the bench. I think they have a term for this.- “Self Policing” –and it doesn’t work.

Stop electing lawyers to be your voice in government. Their inclination to protect the appearance of their profession is causing your government to fail.

Elect a doctor, a butcher, a realtor, a store owner, a teacher, a preacher, a zoologist, a technician, a secretary, a father or a mother, but don’t keep electing lawyers. Your government should be comprised of an equal distribution of all the qualities of the people.

Once you place these people in office, don’t let them get too comfortable. If they stay there too long, they will start to represent their fellow representatives, and not the people. They will form alliances. I know that sounds like it will work, but the only alliance the person you elect to represent you should have, is with the people that elected them; any other alliance causes an improper representation of those that did not elect them.

Every time a new law is created, it presents a new legal argument, which, in turn, creates a new law for a lawyer to argue, which creates a new job for a lawyer. This is like doctors creating new diseases. One must wonder why we have three times as many lawyers as we do doctors. We have over 2.3 million lawyers, and only about 800,000 doctors.

We have 6.2 million teachers. We have almost three times as many teachers as we do lawyers, but the amount of teachers in our government is not representative of their numbers. Teachers are good enough to teach our children about their government, but not good enough to have a proportionate representation in our government.

Getting elected is all about money. Who has most of it? The lawyers and their friends, the owners of the large corporations- that’s who. Those who have friends with deep pockets get elected. They can spend more money to advertise. This results in better name recognition. That’s how they get elected. We need campaign finance reform. Do you think the lawyers, that keep getting elected, will be the ones to initiate the reform?

If you are not familiar with, or have never taken the time to read, the Anti-Federalist Papers; I suggest that you do. These papers were written by true patriots to inform the people of the pitfalls of our new constitution. Though our Constitution was adopted, the areas of concern, presented over 200 years ago, are extremely relevant to our current events. One of the areas of concern had to do with the judiciary, was present in Anti-Federalist #1, and is extremely poignant.

“The Lawyers in particular, keep up an incessant declamation for its adoption; like greedy gudgeons they long to satiate their voracious stomachs with the golden bait. The numerous tribunals to be erected by the new plan of consolidated empire, will find employment for ten times their present numbers; these are the LOAVES AND FISHES for which they hunger. They will probably find it suited to THEIR HABITS, if not to the HABITS OF THE PEOPLE. There may be reasons for having but few of them in the State Convention, lest THEIR OWN INTEREST should be too strongly considered.”

The Power of Judicial Review
The Historical Inaccuracies that have promoted
Judicial Activism

For, at least, the past one hundred and twenty years, law professors throughout the United States have latched onto the words opined in the famous case of Marbury v. Madison (1803).

“It is emphatically the province and duty of the judicial department to say what the law is”.

These words; viewed by many to be a bell-ringing proclamation of the Court’s duty and power, and to consider it supreme -are not as they appear.

I know what you’re thinking. You’re thinking that I’m about to challenge Marbury –Right?
Well….That is exactly what I am NOT going to do.
Nothing in the opinion of Marbury need be challenged.

While most are in agreement that the Court should wield the mighty power of judicial review, let us take a step back and look at some of the other words contained in the Marbury opinion. The second-to-last full paragraph of the Court’s opinion states; “It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.”

As acknowledged by Chief Justice Marshall; laws made in pursuance of the Constitution, have the same rank as the Constitution itself. An Act of Legislature, made in pursuance of the Constitution, in accordance with the lawmaking powers granted to the General Assembly by Article I, Section 8 of the Constitution, and not exceeding the enumerated powers declared by the Tenth Amendment, are equal to what is written in the Constitution. To completely ignore such law would be repugnant to the Constitution; would it not?

In order to demonstrate the historical inaccuracies that have promoted judicial activism, we must first accept the purpose of a written constitution. The discussions among the framers, the papers for or against adoption by the states, or even the personal diaries of those that attended the Constitutional Convention; cannot and must not be used to inject words into the U.S. Constitution that may, or may not, have been intentionally omitted when it was ratified by the states.

The amount of deference that should be given to Madison’s record of the debates, along with those of the Federalist and the Anti-Federalist Papers, in constitutional interpretation has always been controversial.

In 1819, Chief Justice John Marshall noted in the famous case McCulloch v. Maryland, 17 U.S. 316 (1819), that "the opinions expressed by the authors of that work [referring to the Federalist Papers] have been justly supposed to be entitled to great respect in expounding the Constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained."

 Madison himself believed not only that The Federalist Papers were not a direct expression of the ideas of the Founders, but that those ideas themselves, and the "debates and incidental decisions of the Convention," should not be viewed as having any "authoritative character". Madison further noted, “[a]s a guide in expounding and applying the provisions of the Constitution . . . the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it received all the authority which it possesses”.

When discussing the Power of Judicial Review, we must consider the enormity of consequence to its abuse. Could a Court consisting of few individuals, not elected by the people, silence the will of the people? Could this Court declare that an Amendment to the Constitution, or even a future ratified constitution, is itself, unconstitutional? Should the people, through their elected representatives, have the power to silence the Court? The answer to all three, I believe, is undoubtedly –Yes. Only arrogance and elitism would suggest otherwise.

The Constitutional Convention:
Delegates from each state began arriving in Philadelphia, Pennsylvania in May 1787, just four years after the end of our War for Independence. At first, only Virginia and Pennsylvania provided representation to the convention. However, it took some delegates months to arrive. The last delegate to arrive showed up on August 6^th 1787. Rhode Island was the only state that refused to send delegates. After much debate, and compromise, the Constitution was completed on September 12, 1787. Of the 42 delegates that were present when the Constitution was completed, only 3 refused to sign it.
Four months to create a Constitution; it takes that long for the U.S. Supreme Court to hand down an opinion today.

Ratification by the States: The States were given six months to ratify the Constitution.Those six months consisted of much public debate. People in favor of the Constitution were called Federalists, those opposed were called Anti-Federalists.

James Madison, Alexander Hamilton, and John Jay, under the pseudonym of Publius, wrote a series of articles in favor of the Constitution that became known as The Federalist Papers. At the same time, articles against adoption, known as The Anti-Federalist Papers were authored by Cato (likely George Clinton), Brutus (Robert Yates), Centinel (Samuel Bryan), and the Federal Farmer (believed to be Melancton Smith, Richard Henry Lee, or Mercy Otis Warren). These articles were intended to sway public opinion.

The Constitution was finally ratified and became legal on June 21, 1788, but the amount of influence garnered by The Federalist Papers and their counterpart, The Anti-Federalist Papers has never been documented. The Federalist Papers were only published with regularity in New York. Eight, of the nine States needed to ratify the Constitution, had already done so before a compilation of the Federalist Papers was published. New York did not ratify the Constitution until over a month after it had already become legal.

It must be noted that Madison’s record of the debates, and the thoughts expressed in the Federalist and Anti-Federalist Papers have never been verified or had their accuracy agreed to, by any majority of elected representatives. Belief and trust are their only credentials. As I have stated, no record exists that would demonstrate the influence of these Papers on any of the States that ratified our new constitution.

Other than the text of the Constitution itself, no papers referring to the Constitution, were ratified. This is important, as the words and thoughts of an individual did not create this country, and therefore, should not have any binding application.

In addition, The Anti-Federalist Papers provide us with clear record that not everyone was in agreement with the Federalist Papers. As we cannot go back in time, and ask why words were left out of the U.S. Constitution, it would make much more sense to just acknowledge such, as fact, and look to the plain text of the Constitution that provide our elected representatives with the ability to react to those omissions in the manner set forth by the Constitution. (i.e. create laws and propose amendments) If we are going to look to the intent of the framers, rather than what was written and ratified, we may as well throw our written constitution in the trash, and adopt the Federalist Papers as our written guide.

As Thomas Jefferson has stated; “Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure.”

Our Supreme Law of the Land, our Constitution and the laws created in pursuance thereof, to which he was referring, must be viewed in that manner. The words of the U.S. Constitution are written for a purpose. The U.S. Constitution is a dormant guide that provides both rights and restraint, powers and prohibitions. No branch of the U.S. Government has been granted the authority to change the text of our Constitution, without the approval of the States. This guide, that has withstood the tests of time, may only be brought to life by the Citizens of the United States of America.

Omissions:
Are items mentioned in the Federalist Papers that were not contained in the U.S. Constitution when ratified? The answer is yes. Federalist 84 cites a Bill of Rights, yet no such bill of rights was contained in the Constitution when ratified. As Alexander Hamilton also acknowledges in Federalist 84, when discussing constitutional provisions that were left out; “There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places”. Some were left for the Legislature to establish as laws made in pursuance of the Constitution.

Items that are forgotten, when creating law, do not become law on their own accord, and without further action, merely because the records demonstrate that some members of the Legislature had intended to include them; that would set a very dangerous precedent.

Members of the Legislature are the elected voice of the people; intended to exercise the will of the people on their behalf. Delegates to the Constitutional Convention were not intended operate as a voice for the people. They were men of knowledge and wisdom. The framers were entrusted to create the text, but only those elected within the states, that were the legitimate voice of the people, could give those words meaning and cause them to function. To ascribe the words of a few, that were not elected to be a representative voice of the people, as the sentiment of the whole, lacks foundation. Incorporating such into law is adverse to the very fundamentals of a government of the people.

As the Court has demonstrated great respect for the Federalist Papers, should the Anti-Federalist Papers not be granted equal value? Robert Yates, a delegate to the constitutional convention, and a judge in New York, is said to have authored some of the Anti-Federalist Papers under the pseudonym of “Brutus”. Identification of the true author of the Anti-Federalist Papers is not necessary to see their value as equal to that of the Federalist Papers. In fact, the vision of the authors of the Anti-Federalist Papers would be the envy of Nostradamus. Not to discount the value of the whole of the works, I found this statement, contained in the first, to be quite poignant, yet an extreme underestimate of the actual results;

“The Lawyers in particular, keep up an incessant declamation for its adoption; like greedy gudgeons they long to satiate their voracious stomachs with the golden bait. The numerous tribunals to be erected by the new plan of consolidated empire, will find employment for ten times their present numbers; these are the LOAVES AND FISHES for which they hunger. They will probably find it suited to THEIR HABITS, if not to the HABITS OF THE PEOPLE. There may be reasons for having but few of them in the State Convention, lest THEIR OWN INTEREST should be too strongly considered.”

Why was this new Constitution void of specifics about the Judiciary?Just five years after the end of the American Revolutionary War, the states were leery of giving too much power to an unelected branch of their government. The establishment of the Court was left for the Legislature. They did so by making full use of the power granted to them via Article I, Section 8, and the Exception clause of Article III, Section 2. (I know! The opinion of Marbury found that Exception Clause “is entirely without meaning”, but I said that I would not challenge Marbury, so I’ll just leave it be for now. Although I firmly believe that a Court, having taken an oath to defend the Constitution, and then deciding some of its language to be without meaning, should have been thrown out on their ears.)

The Constitution does not grant the power of judicial review to the Court anymore than it does to the President. The method and jurisdiction to exercise the power of judicial review was left in the hands of the General Assembly. This provides for the overwhelming majority of those elected to be the representatives of the people to always have the loudest voice in their government; hence the 2/3rds provision for Congress to act on its own. Granting the power of judicial review, without the ability of those elected by the people to control it, would have presented a constitutional oligarchy. I find it doubtful that a constitution, that would have granted so much power to an unelected branch, would have ever been ratified by the states, and is most likely the reason for omission.

Recognizing the need of the Court to provide for uniformity of law throughout the states, to provide an initial check on the will of the people, and to act as final arbitrator; one of the first acts of our new General Assembly was to establish the courts. While doing so, they also granted the Supreme Court the power of judicial review.

Our new government began operation on March 4^th 1789. On September 24^th 1789, less than seven months later, the Legislature, in accordance the power vested in them by the last sentence of Article I, Section 8 of the U.S. Constitution, that is; “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”, did so, not only by determining the number of justices on the Court, as well as creating inferior courts, but also by establishing the method and jurisdiction by which the Court shall exercise the power of judicial review. By Section 25 of the Judiciary Act of 1789, the Legislature provided the U.S. Supreme Court with the power to review, reverse, remand and render final judgment in cases involving, “a treaty or statute of, or an authority exercised under the United States” or “a statute of, or an authority exercised under any State” that is “repugnant to the constitution, treaties or laws of the United States”.

Marbury has long been recognized as the seminal case in which the court declared their power to review Acts of Legislature that were repugnant to the U.S. Constitution. This is a flaw in the use of the doctrine of stare decisis. Though it is now common for the Court for cite the relevant authority for their decision, it was not so in the early years of our Supreme Court. This is further demonstrated by the case of Little v. Barreme, 6 U.S. 170 (1804), as the Court cites neither Marbury nor Section 25 for its authority. The same omission of authority can be seen in Fletcher v. Peck, 10 U.S. 87 (1810). In fact, a review of the Court’s opinions under Marshall demonstrates that Marshall rarely cited any authority for the powers of the Court.

There is a reason that I stated that “Marshall rarely cited any authority”. In Cohens v. Com. of Virginia, 19 U.S. 264 (1821), Chief Justice Marshall is presented with Marbury, yet yields to the 25^th Section of the Judiciary Act of 1789 as the authoritative source for the Court’s power.

Following a logical progression of history, we must then look at the famous case of Dred Scott v. Sanford, 60 U.S. 393 (1856), in which the Court invalidated the Missouri Compromise of 1820, an Act of Legislature. It must be noted that in the courts opinion Marbury was not cited as the Court’s authority for its decision; instead, the Court cited Section 25 of the Judiciary Act of 1789.

It was not until 1887, the case of Mugler v. Kansas, 123 U.S. 623 (1887), 84 years after Marbury, that the Supreme Court first cited such as its authority for the power of judicial review. Was this oversight, or was this the establishment of judicial activism? It would be much easier to exercise judicial activism if you demonstrated that you were not the first Court to do so; would it not? The language contained in the opinion of Mugler establishes a powerful platform for judicial activism, yet defers responsibility. Had Marbury truly been an exercise of the Court’s will, by declaration, instead of an exercise of the Court’s authority, constitutionally granted it by the Legislature, a revolt would have been the probable outcome. The sentiment of the people, in 1789, would have been extremely adverse to an unelected few that would have just assumed their will.

Since 1887, we have had a very active Court; a Court not afraid to wield its power over the Legislature. Some excellent works, such as Prakash and Yoo’s The Origins of Judicial Review do a fine job of supporting that which was opined in Mugler, but fail to address Section 25 of Judiciary Act of 1789 for anything more than jurisdiction. Their conclusions are based solely on intent and conjecture. They look to what was not written, and then rely on belief and intent written by some, rather than looking at what was written and ratified.

As the U.S. Constitution does little more than establish the Judicial Branch of our government, and instead leaves such to the Legislature, to ignore the very Act that brings the Judiciary to life is intolerable.

Omissions intended or not, are a common occurrence when creating law. Missouri, for example, in its Constitution of 1875, described the duties of Attorney General, but was absent of any means for appointing or electing the position. The answer was not to look to the intent of the framers, or any propaganda in support of adoption, and have the Missouri Supreme Court exercise a forbidden will. The Legislature properly performed their duty, and created a means for electing the Attorney General. Thought I firmly believe that the Attorney General should be an appointed position, as it was prior to the new Constitution, serving only at the pleasure of the Governor, the Missouri Legislature remedied an omission in a constitutionally authorized, expedient manner. Even if you consider the power of judicial review to be an accidental omission, Section 25 of the Judiciary Act of 1789 has provided appropriate remedy.

Are we really to believe that claimed intent should be outweighed by what is written, ratified, and constitutionally legislated?