No Longer a Federation of Republics

 No Longer a Federation of Republics

Thomas Allen

The United States are no longer a federation of republics. That federation and the original Constitution died with Lincoln’s War. Now the United States is (notice the change in the verb from the previous sentence) a judgeocracy with an imperial president and an impotent Congress.

John Marshall, Chief Justice of the US Supreme Court, laid the foundation for a judgeocracy. President Abraham Lincoln established the imperial presidency with his war to suppress Southern independence. Presidents Woodrow Wilson and Franklin Roosevelt carried the imperial presidency to completion.

By the middle of the twentieth century, the judicial coup d’etat had been completed. Chief Justice Earl Warren completed what Marshall had started. Now the United States are a judgeocracy with an imperial president.

Under judicial rule, federal judges under the supervision of the Supreme Court have usurped the legislative authority of the State legislatures. Federal courts have absolute control over the States even to the point of forcing State governments to levy taxes to spend on a judge’s predilection. Federal judges even intervene on purely political issues like drawing boundaries for legislative districts. The States have been reduced to little more than personal fiefdoms of federal judges.

Also, federal judges under the supervision of the Supreme Court have usurped the legislative authority of Congress. Judges, especially those on the Supreme Court, have usurped the power to rewrite laws that Congress has enacted to suit their preferences. If Congress enacts a law that they do not like, they veto it. If Congress fails to enact a law that the Supreme Court desires, it will enact such a law with a ruling on a related issue. Thus, the Supreme Court is an unaccountable legislative body. 

Moreover, the Supreme Court has even usurped the authority to amend the Constitution — however, without changing the words of the Constitution. Why bother getting two-thirds of each house of Congress and three-fourths of the States to agree on an amendment when five judges can amend it with their rulings?

What does the Supreme Court use as a guide for amending, vetoing, and promulgating laws? It certainly is not the Constitution. Instead of the Constitution, the Justices of the Supreme Court use their personal biases and prejudices.

Thus, the Supreme Court has elevated itself above the Constitution. It has claimed the sole and final power to decide what the Constitution means, and it amends the Constitution with its rulings to conform with its whims. Whatever the Supreme Court rules is the supreme law of the land. Its rulings are superior to the Constitution. (The Supreme Court gives the Constitution only cursory and perfunctory notice.)

Federal judges no longer seem able to distinguish between the judicial function and the legislative function. Since Marshall, personal biases and personal preferences are much more of a guide in their ruling than is the Constitution and even the clear wording and intent of the law.

Similarly, the executive branch has usurped the legislative authority of Congress  — often with Congress delegating its legislative power to the executive branch. Congress has created numerous regulatory agencies that have the authority to issues regulations that have the effect of law. Further, the President often issues executive orders that have the effect of law. Consequently, Congress enervates its vitality.

Thus, the United States became a judgeocracy with an imperial president, an impotent Congress, and emasculated States. The federation of republican States (nations) that the Constitution established died long ago never to be resurrected.

Copyright © 2022 by Thomas Coley Allen.

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Gutzman on the Constitution

 Gutzman on the Constitution

Thomas Allen

In The Politically Incorrect Guide™ to the Constitution (2007), Kevin Gutzman provides some interesting information related to the US Constitution. Some of this information follows.

High Crimes and Misdemeanors. The phrase “high crimes and misdemeanors” appears in Article II, Section 4 of the Constitution: “The President, Vice President and 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.”

Most people believe that this phrase means various types of homicides and thefts and other indictable crimes. It does mean these things, but it also means more than these.

When the States ratified the Constitution, this phrase was understood to cover physical disability and mental and psychological impairment. However, the complete meaning of this phrase was forgotten, and it became limited to indictable crimes and petty corruption. Consequently, the impeachment process has become a highly ineffective means to remove judges and other civil officers from office. (The twenty-fifth amendment establishes a procedure for removing the president, but not other civil officers or judges, from office because of physical disability and mental impairment.)

Vetoing State Laws. The Constitutional Convention rejected giving Congress the power to veto State laws, which implied that the judiciary, which is the least responsible institution of the federal government, also lacks such power. However, the US Supreme Court soon usurped this power. 

First, it used the Contract Clause (Article I, Section 10: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts. . . .”). The purpose of the Contract Clause was to prohibit States from adopting laws preventing lenders from collecting debts for a stated period. This clause was not intended to prohibit States from enacting economic regulations. However, federal courts have used it to veto State laws that regulated the economy.

About 130 years later, the Supreme Court replaced the Contract Clause with the Interstate Commerce Clause (Article I, Section 8: “The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”) to veto State laws that the Supreme Court did not like.

After World War II, the Supreme Court began using the Incorporation Doctrine (applying the first nine amendments, the Bill of Rights, to the States) to veto State laws that it did not like.

(Federal courts seldom veto State laws because they are unconstitutional; most are constitutional under the original intent of the Constitution. Federal judges veto State laws because they do not like them; they conflict with the personal prejudices, preferences, and biases of the judge.)

Eleventh Amendment. The purpose of the eleventh amendment is to reassert the independence, sovereignty, and supremacy of the States. Specifically, it denies federal courts jurisdiction over lawsuits initiated against a State by a citizen of another State or country.

Its original intent was to limit the jurisdiction of federal courts to those specifically named Article III. The Supreme Court has circumvented the intent of the eleventh amendment by allowing people to sue State officials who carry out the policies of the State in lieu of the State itself.

Two Views of the Nature of the Law. Gutzman describes two views of the nature of the law: Thomas Jefferson’s and John Marshall’s, Chief Justice of the Supreme Court (1801–1835). “For Jefferson, law was the framework of rules by which the people agreed to be governed; a judge's role was simply to apply the clear meaning and original understanding of the Constitution (or other legal document)” (p. 98). Jefferson’s view is republican in nature.

However, Marshall believed “that law required judges who could see beyond the written law to the ‘natural law’ that was superior to it” (p.98). (Abolitionists also claimed that natural law as they interpreted it was superior to the Constitution and all other laws.) Marshall’s view is aristocratic and clerical in nature. The fatal flow of Marshall’s view is that “no two men agreed about the particulars of the ‘natural law’; instead, they tended to use ‘natural law’ as a justification for their own policy preferences” (pp. 98-99).

Two Types of Due Process. The Supreme Court has created two types of due process: “procedural due process” and “substantive due process.” Due process appears twice in the Constitution: once in the fifth amendment and once in the fourteenth amendment. Due process as used in the Constitution is procedural due process (according to pre-established procedures). Substantive due process is used as an excuse for judicial usurpation. (Substantive due process is the doctrine that legislation is needed to carry out fairly due process in the fifth and fourteenth amendments.) When the Supreme Court legislates under the banner of due process, it is using substantive due process.

Gutzman’s The Politically Incorrect Guide™ to the Constitution is an excellent book on the Constitution. He focuses on how the Supreme Court has subverted the original intent of the Constitution, has usurped the legislative authority of Congress and the States, and has prohibited authorities of the States that the Constitution allows.

Copyright © 2021 by Thomas Coley Allen

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