A few more things
Published Mon, Jun 23 2008 8:28 AM
In my last post I outlined the major changes between the government that the founders intended and the one we have today. It was a long post. It also just barely managed to cover the ground that I intended it to cover. This post won't be nearly as long.
The founders worked hard to hammer out the compromises that went into our Constitution. Some of the prime movers wanted a strong federal government that would overshadow the states much as today's federal government does. They had to overcome strong opposition from a coalition of states that did not want their sovereignty reduced in any way, and they were only partially successful. Time, distance and stifling heat saw to it that from time to time the leaders of one faction or the other were absent. New coalitions were formed and broken. When they finally finished crafting the Constitution the hard work of ratifying it began.
Upon leaving the Constitutional Convention Benjamin Franklin was asked what sort of government had been given to the people. His reply was "A republic, if you can keep it." Keeping our republic is a challenge even today. The founders themselves didn't expect it to last more than a few decades. After all, the confederacy that preceded it didn't.
As I noted earlier, it didn't take too long for changes from the original design to creep in. Only a few years after the ratification of our Constitution power struggles between the Democratic-Republicans and the Federalists provided the opportunity for the Supreme Court to seize upon a new power "to construe the laws according to the spirit of the Constitution". This is, supposedly the final check in our system of checks and balances.
The writers of the Constitution had given the executive and legislative branches powers that would limit each other as well as the judiciary branch. The Constitution gave Congress the power to impeach and remove officials, including judges or the President himself. The President was given the veto power to restrain Congress and the authority to appoint members of the Supreme Court with the advice and consent of the Senate. In this intricate system, the role of the Supreme Court had not been defined. It therefore fell to a strong Chief Justice like Marshall to complete the triangular structure of checks and balances by establishing the principle of judicial review.
"It therefore fell to a strong Chief Justice… to complete the triangular structure of checks and balances"? Hardly. This was a plain, non constitutional usurpation of power. It was the fulfillment of the prophecy of "Brutus" in the opening sentence of Antifederalist number 78.
The supreme court under this constitution would be exalted above all other power in the government, and subject to no control.
We didn't keep our republic, it was taken from us by Chief Justice John Marshal and his court. The one branch of the government that is not accountable to the people and which is meant to have no legislative power at all took advantage of a loophole left in the Constitution to take over all government throughout the nation. We get to retain the illusion that we live in a republic, but we really live under an oligarchy. For the most part we hold to the forms, we elect Senators and Representatives, we elect those who will elect our President and Vice President, and together they enact our laws — until the courts step in.
Our Constitution granted to the government very specific powers and responsibilities. For the most part the government exercises those powers and carries out its responsibilities, although there have been lapses. The Constitution was structured to restrict the power of our federal government as well.
In that, it has failed, simply by not going far enough. Where the least specific definition of the powers and limitations of one of the branches was given, we've seen the result. The hierarchy of powers envisioned by the founders (and yes, it was a hierarchy, and not three co-equal branches) has been turned upside down.
The Constitution defines three branches of government, the Legislative, the Executive, and the Judicial. That should be enough, or so you would think. It certainly would be enough if the government confined itself to the role envisioned for it by our founders.
Maybe next time I'll talk about the fourth branch of the federal government. I'll talk about the second unelected branch of government — the bureaucracy.
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David responded with: Yes, and no...
 | "We didn't keep our republic, it was taken from us by Chief Justice John Marshal and his court."
OTOH, recall that Lincoln followed Jackson's example ("Justice Taney has his decision. Now let him enforce it.") *heh*) and refused to recognize some of the Taney Court's decisions--even going so far as to issue an arrest warrant for Chief Justice Taney, at one time.
The Supreme Court has only such power as the other two branches allow it, even today. Its power is largely a shared fiction, as it has no enforcement arm of its own.
Of course, as politics demonstrates over and over again, fictions have powers of their own... |
David responded with: Yes, and no...
Perri Nelson responded with:
 | "The Supreme Court has only such power as the other two branches allow it, even today." True, but the other two branches have deferred to it for so long that it might as well be all powerful. No Supreme Court justice has ever been impeached, and even that ultimate remedy won't fix a bad decision. We've labored under bad decisions like Roe for so long that they've become enshrined in our national politics. "Pournelle's Iron Law of Bureaucracy" mirrors my thoughts on the bureaucracy quite well… thanks for bringing that up. I'd never heard of it before. And it's a plainly visible fact that some of the federal bureaucracy has been working in its own interests and against the interests of the administration it's meant to serve. Career bureaucrats — I have the same reaction to them as you do when you type "politicians * spit *" |
Perri Nelson responded with:
| …You know… I kind of like Lincoln's attitude toward that decision. If only we had politicians these days that would stand up to bad law crafted by the courts. Now that would be something. |
Layla responded with:
 | I happen to agree with you both and having studied Constitutional Law as a minor to my major or Journalism - you both have an excellent command of our Supreme Court system.
Suffice to say truly at the end of the day - most people really do not understand that our President has such limited power and this nation is truly governed by our Senate and Congress - but both branches are accountable to the Supreme Court.
Truly is is the Supreme Court at the end of the day that really wields the power and backbone of our nation.
BTW-I really felt bad Perri when you mentioned on my blog that nobody hardly reads your blog. That is sad because I have always found it informative and insightful.
I will try when I can to come by more often. |
Layla responded with:
| I have you listed on my Links page. |
Perri Nelson responded with:
| Layla, I'm not really concerned about how many people read my blog, although like anyone else, I enjoy seeing it get traffic. What I'm really more concerned about is that it seems that many of the visitors don't actually read it and offer comments to open a discussion. That, and the ones that do tend to agree already with what I have to say. What I really want is to carry on a conversation with my visitors. I'd like to talk to people that disagree with me, so that they can explain their reasoning and I can answer their disagreements. Hopefully, when that sort of conversation happens, both sides will grow. |
Layla responded with:
| Thanks for dropping in Perri! I appreciate the thoughts. |