Checks and Balances

Checks and Balances

Restoring Constitutional Confidence

In the infamous Dred Scott case of 1857, the U.S. Supreme Court declared people imported from Africa to be sub-human and thus not worthy of freedom. This holding involved such a twisting of the text of the U.S. Constitution that a dissenter wrote: “[W]hen strict interpretation of the Constitution, according to fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”[1] Such a hijacking of the Constitution must end.

President Thomas Jefferson wrote that a branch of civil government that gave itself sole authority to interpret the Constitution was a “despotic branch.”[2] We have observed the evils that result when our civil officials fail to faithfully follow their oaths of office by keeping the text of the U.S. Constitution their foremost human guide: slavery, sterilization, sodomy, and abortion. We could add to that list theft through inflation of the money — an evil President Andrew Jackson fought hard against the U.S. Supreme Court in his day and eventually succeeded in defeating.

In the first article in this series, we addressed the Protestant Reformation principles which led our founders to make our civil government one of Law rather than of men. You can see that article here. In the second article in the series, we saw how deviations from the text of the U.S. Constitution has resulted in great travesties of justice, and you can read that article here. Now we will address how our officials should hold each other accountable to the U.S. Constitution as the highest human civil authority in our nation.

 

III. How Civil Officials May Hold Each Other Accountable to the Constitution. 

As each official at all levels of civil government in the United States makes a commitment to uphold the U.S. Constitution, an essential aspect of that commitment must entail that they hold one another accountable to the Constitution. Likewise, federal and state governments should hold each other accountable to the Constitution. Within these two jurisdictions, each branch should hold the others accountable. Below we consider some specific ways that this accountability has historically been performed and today should be performed.

 

A. How Congress and the President May Hold the Judiciary Accountable to the Constitution.

Notions that any majority of Justices of the Supreme Court may act as the “ultimate interpreter of the Constitution,”[3] that “the interpretation of the [Constitution] enunciated by [such a majority] . . . is the supreme law of the land,”[4] and that “[a] decision [of such a majority]” on a constitutional issue “cannot be reversed short of a constitutional amendment”[5] subvert stable government and society. Undeniably, “no amount of repetition of . . . errors in judicial opinions can make the errors true”,[6] and if the judicial decisions are not true they cannot “establish Justice.” In addition, if “WE THE PEOPLE” have no alternative to accepting as “justice” what is untrue, except by amending the Constitution in each and every instance of judicial fallacy, then those decisions will undermine “domestic Tranquility”.[7]

If men allow this abuse to continue, eventually not only will the U.S. Constitution fall into discredit, but constitutionalism itself will sink into derision. Once “the rule of law” in America is exposed as “the rule of men,” soon to follow will be the demise of “the Blessings of Liberty for ourselves and our Posterity.”

 

1. How the President may hold the Judiciary accountable.

The Constitution gives the President the duty to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. Judicial decisions are not “Laws” of any kind.

In the ordinary use of language it will hardly be contended that the decisions of the Courts constitute laws. They are, at most, only evidence of what the laws are; and are not of themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect.

Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842).

Thus, the President does not have to “faithfully execute[]” court decisions at all. He only needs to enforce the “Laws” the courts properly apply. He certainly does not have to enforce decisions that are “either defective, or ill-founded, or otherwise incorrect” when compared to the Constitution, which he has taken an oath “to the best of [his] Ability, [to] preserve, protect and defend” against anyone and everyone. U.S. Const. art. II § 1, cl. 7.

 

President Andrew Jackson had several successful battles with the U.S. Supreme Court over the proper interpretation of the U.S. Constitution, most notably over the defeat of the Second National Bank.

If the President refused to enforce an unconstitutional judicial decision, his action should not be considered areversal. The Judiciary might continue to cite the ruling as a precedent, but no judge could count on the President’s assistance in imposing the unconstitutional decision on the litigants, or anyone else.

One particular instrument the President could use toward judicial accountability would be the United States Marshals Service, “a bureau within the Department of Justice under the authority and direction of the Attorney General.” See 28 U.S.C. § 561(a). The President appoints “by and with the advice and consent of the Senate, a United States marshal for each judicial district of the United States”. See id at § 561(c). So the President may remove (and with the senate’s approval replace) the marshals as he sees fit, if they fail to perform his directions.

Without the support of the marshals, the Judiciary would be severely handicapped. “It is the primary role and mission of the United States Marshals Service to provide for the security and to obey, execute, and enforce all orders of the United States District Courts [and] the United States Court of Appeals”. See id at § 566(a).

The marshals are governed by this rule: “Except as otherwise provided by law or Rule of Procedure, the United States Marshals Service shall execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties.” Id at §566(c)(emphasis added).

So if the President determines that some judicial “writ[], process, [or] order[ is not ]issued under the authority of the United States” because it violates the Constitution; and if, as part of his duty to “take Care that the Laws be faithfully executed” he commands the Marshals Service not to execute such “writ[], process, [or] order[]”; then the Service will thereby be excused by the law of the Constitution (as understood by the President) from doing so. Judicial supremacy becomes a pipe dream without Presidential cooperation.

The Supreme Court may try to circumvent such a Presidential move by “appoint[ing] [its own] marshal, who shall be subject to removal by the Court,” not the President. See id at § 672(a). Compare U.S. Const. art. II, § 2, cl. 2 with Myers v. United States, 272 U.S. 52, 162-63 (1926). But in the face of the President’s adamant refusal to assist, the Supreme Court would probably not adequately perform its business with this slender force. One may “[s]erve and execute all process orders issued by the Court” without necessarily seeing them obeyed.

Similarly, other efforts made by the Supreme Court would prove ineffective. The Court may try to enjoin the President or his subordinates.See Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867); Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1868). The Court may hold him in contempt. But its citations would only be overturned by executive pardons. See U.S. Const. art. II, § 2, cl. 1.

Indeed, as the Court has already conceded, “[t]he executive power is vested in a President, and as far as his powers are derived from the Constitution, he is beyond the reach of any department except the mode prescribed by the Constitution through the impeachment power.” Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 610 (1838).

 

2. How Congress may hold the Judiciary accountable. 

“Whatever functions Congress are, by the Constitution, authorized to perform, they are, when the public good requires it, bound to perform.” United States v. Marigold, 50 U.S. (9 How.) 560, 567 (1850).

Congress may choose several various approaches to prevent judges from misconstruing the Constitution. One option is to simply prevent them from hearing certain constitutional issues in the first place. This remedy would affect the federal court as a whole. Another option is for Congress to remove judges from the bench for lack of “good behavior” or to impeach and convict them for violating the law. This second remedy would expel specific federal judges who have displayed a disposition toward unconstitutional opinions and orders.

 

a. Limiting the Judiciary’s jurisdiction.

The Constitution gives the Supreme Court original jurisdiction “[i]n all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party.” U.S. Const. art. III, § 2, cl. 2. On all other matters, however, the Constitution gives Congress the power to regulate and make exceptions to the Supreme Court’s jurisdiction. “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” Id.

The Supreme Court early recognized that Congress had this constitutional power when it wrote:

[T]he political truth is, that the disposal of the judicial power, (except in a few specified instances) belongs to congress. If congress has given the power to this Court, we possess it, not otherwise: and if congress has not given the power to us, or to any other Court, it still remains at the legislative disposal. Besides, congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of the federal Courts, to every subject, in every form, which the constitution might warrant.

Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799) (Chase, J.).

In Ex parte McCardle, the Supreme Court went so far to subordinate itself to the jurisdictional limitations of Congress that it adjusted its response to a particular case while on appeal. It declared:

We are not at liberty to inquire into the motives of the Legislature. We can only examine into its power under the Constitution; and its power to make exceptions to the appellate jurisdiction of this court is given by express words.

What, then, is the effect of the repealing Act upon the case before us? We cannot doubt to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.

74 U.S. (7 Wall.) 318 (1868) at 514.

In addition to granting Congress the power to limit the Supreme Court’s appellate jurisdiction, the Constitution gives Congress the power to create or eliminate inferior courts. “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” U.S. Const. art. III, § 1 (emphasis added).

[I]f the Constitution had ordained and established the inferior courts, and distributed to them their respective powers, they could not be restricted or devested by Congress. But as it has made no such distribution . . . having a right to prescribe, Congress may also withhold from any court of its creation jurisdiction of any of the [constitutionally] enumerated controversies. Courts created by statute can have no jurisdiction but such as the statute confers. No one of them can assert a just claim to jurisdiction exclusively conferred on another, or withheld from all.

The Constitution has defined the limits of the judicial power of the United States, but has not prescribed how much of its [sic] shall be exercised by the [inferior courts]; consequently, the statute which does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it confers powers not enumerated therein.

Sheldon v. Sill, 49 U.S. (8 How.) 441, 448-49 (1850).

So Congress may declare that inferior courts hear only certain questions. See Lockerty v. Phillips, 319 U.S. 182, 187 (1943). Congress may restrict inferior courts from granting certain remedies. See Lauf v. E.G. Skinner & Co., 303 U.S. 323, 329-30 (1938); Drivers’ Union v. Lake Valley Co., 311 U.S. 91, 100-03 (1940). Congress may even require that in whatever questions the inferior courts hear, their decisions may not be appealed. See United States v. Klein, 80 U.S. (13 Wall.) 128, 145 (1872).

What may prevent Congress from abusing this power by limiting the federal courts’ jurisdiction so much that it plainly licenses a violation of the Constitution?

 

An exercise of the checks and balances integral to our civil system is that each and every one of the branches should hold one another accountable to the Constitution.

One check on Congressional power would be the state courts, which have jurisdiction to hear federal issues and whose jurisdiction cannot be limited by Congress.See Testa v. Katt, 330 U.S. 386 (1947); Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962); Free v. Bland, 369 U.S. 663 (1962); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969).

Another check on an unconstitutional abuse by Congress would be for the Supreme Court to resist the limitation and rule anyway. Other elected officials, including the President, would have to examine the dispute and determine which view of the Constitution appears most accurate.

In United States v. Klein, Congress created a limitation that the Court believed denied parties their constitutional protections and took a constitutionally granted power away from the President. The Court refused to follow the limitation. Klein, 80 U.S. (13 Wall.) 128 (1872).

This Congressional approach to constitutional accountability by limiting the jurisdiction of the Court would be most effective when there is widespread abuse in the Judiciary and swift action is needed. When the abuse is with only one judge or a handful of judges, the next approach would probably be preferable.

 

b. Removing judges for lack of “good Behaviour” or for subverting the Constitution.

The Constitution does not guarantee any judge an appointment for life. Rather, it states that “[t]he judges, both of the supreme and inferior courts, shall hold their offices during good Behaviour”. U.S. Const. art. III, § 1. In addition, the Constitution states that “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.” U.S. Const. art. II, § 4.

Justice Samuel Chase was impeached by the U.S. House of Representatives for allegedly partisan leanings in his court decisions but was ultimately acquitted by the U.S. Senate.

If judges may hold their office only “during good Behaviour”, then they may be removed for conduct that constitutes less than “good Behaviour.”

When it comes to “high Crimes and Misdemeanors”, the Constitution gives the procedure to follow for removal (“Impeachment . . . and Conviction”), but does not fully define “high Crimes and Misdemeanors.” To understand this phrase as the Founders understood it, we have to investigate the history behind its use in Common Law practice.

The phrase “high Crimes and Misdemeanors” embraces a host of improper conduct. Blackstone described the need of impeachment for “a prosecution of the already known and established law.” 4 Sir William Blackstone, Commentaries *256. A judge’s violation of the “Supreme Law of the Land” meets that requirement. So while an impeachable offense would include crimes, it would not be limited to crimes.

“No one has as yet been bold enough to assert that the power of impeachment is limited to offenses positively defined in the statute-book of the Union as impeachable high crimes and misdemeanors.” 1 Joseph Story, Commentaries on the Constitution of the United States (Hilliard, Gray & Co. 1833), ante note 121, § 797, at 581.

“Congress have unhesitatingly adopted the conclusion that no previous statute is necessary to authorize an impeachment for any official misconduct.” Ibid., §799, at 583.

The view that judges may be impeached for unconstitutional opinions, not merely crimes, has long legacy in our English Common Law tradition. “[I]f the judges mislead their sovereign by unconstitutional opinions . . . these imputations have properly occasioned impeachments; because it is apparent how little the ordinary tribunals are calculated to take into cognizance of such offenses, or to investigate and reform the general policy of the state.” 2 Richard Woodeson, Laws of England 611-12 (1792).

Justice Joseph Story confirmed that this practice has carried into our own impeachment system.

In examining the parliamentary history of impeachments, it will be found that many offenses, not easily discernible by law, and may of a purely political character, have been deemed high crimes and misdemeanors worthy of this extraordinary remedy. Thus, . . . judges . . . have . . . been impeached . . . for misleading their sovereign by unconstitutional opinions, and for attempts to subvert the fundamental laws, and introduce arbitrary power.

1 J. Story, Commentaries, § 800, at 584 (footnote omitted).

Subverting the Constitution was apparently within the definition of “high Crimes and Misdemeanors” as the Founders understood it. At the Federal Convention, George Mason argued that the phrase “high Crimes and Misdemeanors” should be added to this provision so that it would be understood to include subversions of the Constitution. “Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offenses. . . . Attempts to subvert the Constitution will not be Treason as above defined.” Debates of the Federal Convention of 1787 as Reported by James Madison, Documents Illustrative of the Formulation of the Union of American States (1927) at 691.

By impeaching and convicting errant judges so they are removed from the federal courts, Congress would provide a healthy Constitutional check to the wayward Judiciary.

 

B. How State Officials may hold the Judiciary Accountable to the Constitution.

The Constitution requires “the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, [to] be bound by oath or affirmation, to support this Constitution”. U.S. Const. art VI. As a result, state constitutions require state officials to take an oath or affirmation to support the United States Constitution.

A detailed look into how each elected official of a state may seek to uphold the Constitution against a wayward Judiciary would take volumes, and would vary somewhat within each state jurisdiction. But having already considered examples of how the executive officer and legislative officers of the federal government may act, it would not be hard to imagine how similar checks could be applied on a state level. For example, although a state legislature could not impeach and convict federal judges who rule contrary to the Constitution, they may be able to remove state judges subverting it.

Two particular options available to the state governments should be addressed. The first option is an appeal to the Doctrine of Interposition, which could be raised by a civil official, federal or state, but is particularly applicable in a controversy between the federal government and the state governments because of early Supreme Court rulings involving the doctrine. The second option is a refusal by state court judges to follow federal precedents and orders that conflict with the Constitution — also an act of interposition.

 

1. How the State May Raise the Doctrine of Interposition.

The Bill of Rights from the Constitution declares, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X.

The Constitution does not give exclusive power to the federal judiciary to interpret the Constitution, nor does it prohibit states from interpreting the Constitution. To the contrary, the Constitution requires state officials to take oaths to support the Constitution. They are not required to take oaths to uphold the decisions of the federal courts.

Therefore, when a case arises that strips a state of a portion of her reserved sovereignty, that state as the aggrieved party could simply refuse to acquiesce in and to apply the judiciary’s decision.

In Worcester v. Georgia, the federal court voided the convictions of missionaries who had resided among the Cherokee Indians without a state license. 31 U.S. (6 Pet.) 515 (1832). Although Georgia had participated in the litigation, Georgia’s Governor refused to release the missionaries until they agreed to leave the state. When President Andrew Jackson[8] supported Georgia, the U.S. Supreme Court proved powerless, or at least reluctant, to do anything about this exercise of interposition.[9] The Doctrine of Interposition arose formally as a defined doctrine out of this case.

The doctrine [of Interposition means] that a state, in the exercise of its sovereignty, may reject a mandate of the federal government deemed to be unconstitutional or to exceed the powers delegated to the federal government. The concept is based on the 10th Amendment of the Constitution of the United States reserving to the states powers not delegated to the United States. . . . Implementation of the doctrine may be peaceable, as by resolution, remonstrance or legislation, or may proceed ultimately to nullification with forcible resistance.

Black’s Law Dictionary (4thed. 1951).[10]

“The Constitution does contemplate and provide for the contingency of adverse state interposition or legislation to annul or defeat the execution of national laws.” In Re Charge to Grand Jury, Fed. Case No. 18,274 [2 Spr. 292].

Recently, however, the Judiciary has begun to shun the Doctrine of Interposition as an antebellum doctrine, calling it “without substance.”[11] Their remarks only expose once again their desire to avoid accountability to the Constitution, as they refuse to recall how our country became free from the tyranny of Great Britain by an act of interposition.

The Court’s ruling in Ex parte Young described how unconstitutional laws and usurping officials should be treated. 209 U.S. 123 (1908). These principles apply to officials of both the federal and state governments. See, e.g., Minnesota v. Hitchcock, 185 U.S. 373, 386 (1902). If the Court were consistent, it would have to be held to the same standard when it issued unconstitutional rulings and orders.

The [judicial decision] to be enforced is alleged to be unconstitutional; and if it be so, the use of the name of the [United States] to enforce an unconstitutional [decision] . . . is a proceeding without the authority of, and one which does not affect, the [United States] in its sovereign or governmental capacity. It is simply an illegal act upon the part of a [group of justices] in attempting, by the use of the name of the [United states], to enforce a [judicial decision] which is void because unconstitutional. If the [judicial decision] . . . be a violation of the Federal Constitution, the [errant justices], in proceeding under such [decision], come[] into conflict with the superior authority of the Constitution, and [they are] in that case stripped of [their] official or representative character and [are] subjected in [their] person[s] to the consequences of [their] individual conduct. The [United States] has no power to impart to [them] any immunity from responsibility to the supreme authority of the Constitution.

Ex parte Young, 209 U.S. 123.

From a strategic standpoint, for a state to effectively hold the federal courts accountable to the Constitution through an act of interposition, the strategy should be for as many state officials to stand together in the controversy as possible. At the very least, the Governor of the state, as the executive officer, should give full support to any other state officials under attack by unconstitutional orders or precedents. State governors usually have control over state national guards and state police, who can see that unconstitutional orders are not enforced. If a state makes a strong stand, the President of the United States will have to examine the Constitution and determine which side is in the right before or if he intervenes. Congress may also intervene to help the state.

Whatever the outcome, a state official who takes his oath seriously cannot follow the crowd if the crowd is leading him off the cliff of constitutional disintegration. To do so would be nothing less than treason against “the Supreme Law of the Land.” As the Court wrote in Cohens v. Virginia, “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.” 19 U.S. (6 Wheat) 264, 378 (1821).

 

2. How State Judges May Challenge Unconstitutional Federal Court Rulings and Orders.

“This Constitution, . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby”. U.S. Const. art. VI (emphasis added). Under this article, state judges have an obligation to uphold the Constitution against all other competing legal authorities.

On the other hand, the U.S. Supreme Court has taken the position that any of its decisions that “state a rule based upon the Constitution of the United States” is “under the Supremacy Clause, . . . binding upon state courts.” See Henry v. City of Rock Hill, 376 U.S. 776, 777 n. 1 (1964) (per curiam). This doctrine is constitutionally incoherent. If it were true that Court rulings had the same authority as the Constitution under the Supremacy Clause, then how could the Court ever overrule any of its previous decisions that “state[] a rule based upon the Constitution”? And yet, the Court has often overruled its decisions. See, e.g., Payne v. Tennesee, 501 U.S. 808, 827–30 & n.1 (1991).

In 1968 the Utah Supreme Court stood against the usurpations of the Warren U.S. Supreme Court, declaring:

The United States Supreme Court, as at present constituted, has departed from the Constitution as it has been interpreted from its inception and has followed the urgings of social reformers in foisting upon this Nation laws which even Congress could not constitutionally pass. It has amended the Constitution in a manner unknown to the document itself. While it takes three-fourths of the states of the Union to change the Constitution legally, yet as few as five men who have never been elected to office can by judicial fiat accomplish a change just as radical as could three-fourths of the states of this Nation. As a result of the recent holdings of that Court, the sovereignty of the states is practically abolished, and the erstwhile free and independent states are now in effect and purpose merely closely supervised units in the federal system.

We do not believe that justices of once free and independent states should surrender their constitutional powers without being heard from. We would betray the trust of our people if we sat supinely by and permitted the great bulk of our powers to be taken over by the federal courts without at lest stating reasons why it should not be so. By attempting to save the dual relationship which has heretofore existed between state and federal authority, and which is clearly set out in the Constitution, we think we act in the best interest of our country. . . .

When we bare our backs to receive the verbal lashes, we will try to be brave; and should the great court of these United States decide that in our thinking we have been in error, then we shall indeed feel honored, for we will then be placed on an equal footing with all those great justices who at this late date are also said to have been in error for so many years.

Dyett v. Turner, 439 P.2d 266 (1968).

In 2003 Chief Justice Roy Moore of Alabama stood against an unconstitutional federal court’s order when he refused to remove a Ten Commandment’s monument from the State Judicial Building. As Chief Justice, Judge Moore had legal sway over the building authority. Only when Chief Justice Moore was reprehensibly removed from office was the monument ejected.

Critics of such actions by state judges have said that in disobeying an order by a federal court, those state judges have violated standards of professional responsibility. In Chief Justice Moore’s case, he was accused of violating Alabama’s Canon of Judicial Ethics.

“A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”Alabama Canon of Judicial Ethics, Canon 2, § a (2001).

Critics argue that by opposing the federal court, a state judge causes the public confidence in the impartiality of the judiciary to dissolve.

Nothing could be further from the truth. As we have already discussed, deviance from the Constitution is what causes the public to lose confidence in the Judiciary and the justice system. Besides that, even if a state’s canon of judicial ethics were to require a judge to follow a unconstitutional order, that canon would be trumped by the Constitution, which states that “[t]his Constitution . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” U.S. Const., art. VI (emphasis added).

Through the examples of state judges with constitutional fidelity, other civil officials may grow inspired to restrain judicial usurpation. If other civil officials do unite with these state judges in defense of the Constitution, strategic success will likely increase. Yet whether success seems sure or suspect, the state judge should first seek alliance from the Supreme Judge of the Earth who does right.[12] The federal Judiciary may seem a colossal giant, but “the battle is the Lord’s”. ISamuel 17:47. God “maketh the judges of the earth as vanity.” (See Isaiah 40:23.)

 

IV. Conclusion

When a government official is ordered by the Judiciary to fulfill an action that the government official believes is contrary to the U.S. Constitution, that official must remember and act upon four realities:

He must first remember his oath before God to uphold the Constitution, not the opinions of the Judiciary; he must second remember that the Constitution is “the Supreme Law of the Land”, not the Court; he must third remember the admonition of the Lord to “[r]ender to Caesar the things that are Caesar’s”[13]; and then fourth remember that in the United States, Caesar is the Constitution. If he does this, the Constitution will persevere, and so will “the Blessings of Liberty for ourselves and our Posterity.”

Endnotes:

1.       Dred Scott v. Sandford, 60 U.S. 393, 620-621 (1856) (Curtis, J., dissenting). []

2.       8 The Writings of Thomas Jefferson 310 (Paul L. Ford ed., 1897). []

3.       Baker v. Carr, 369 U.S. 186, 211 (1962); Powell v. McCormack, 395 U.S. 486, 548–549 (1969). []

4.       Cooper v. Aaron, 358 U.S. 1, 18 (1958). []

5.       Gregg v. Georgia, 428 U.S. 153, 176 (1976) (emphasis added).  []

6.       Wallace v. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, C.J., dissenting). []

7.       U.S. Const. pmbl. []

8.      President Andrew Jackson had several battles with the U.S. Supreme Court where he successfully asserted the responsibility and authority of the other branches of government to interpret the Constitution of the United States and not to rely upon the interpretation of the U.S. Supreme Court as the final arbiters of that document. When vetoing the Second National Bank, which he believed was an instrument of government-sanctioned theft through inflation in the money, he disagreed with the U.S. Supreme Court’s ruling that the bank was constitutional, saying in his veto message of 1832 that

“If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.”

President Jackson’s Veto Message Regarding the Bank of the United States; July 10, 1832. []

9.       See 1 Charles Warren, The Supreme Court in the United States History (1926), at 729-79. []

10.   More recent editions of Black’s Law Dictionary have reflected the Court’s contemporary opposition to the Doctrine of Interposition. []

11.    United States v. Louisiana, 364 U.S. 500, 501 (1960). []

12.    Genesis 18:25. []

13.    Mark 12:17. []

http://americanvision.org/5797/the-court-or-the-constitutuion-part-3/#.T9akgbCe5GQ

Mark Levin points out on the link below how we were founded on a system of checks and balances:

Checks and Balances


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