death of Justice Ginsburg (may God grant rest to her soul) has brought the
federal Supreme Court back to the center of attention, politically
speaking. This gives us an opportunity
to take a fresh look at the Philadelphia Constitution and whether it deserves
the high praise it receives in some quarters as a quasi-divine document.
is notable is that right from the beginning, during the ratification debates in
the States, the Philadelphia charter was widely criticized over a number of
issues. Some were addressed by the Bill
of Rights; others were not. One that
certainly was not resolved with amendments is the danger of the federal
judiciary. While Federalist 78 sought to
calm everyone’s fears by calling it ‘the least dangerous branch’ (https://mises.org/library/antifederalists-were-right), more insightful folks saw through this
posturing. One of their leaders was the
Anti-Federalist writer Brutus of New York State. In his 11th essay (published 31
Jan. 1788), he says of Article III,
. It is, moreover, of great importance, to examine with care the nature and
extent of the judicial power, because those who are to be vested with it, are
to be placed in a situation altogether unprecedented in a free country. They
are to be rendered totally independent, both of the people and the legislature,
both with respect to their offices and salaries. No errors they may commit can
be corrected by any power above them, if any such power there be, nor can they
be removed from office for making ever so many erroneous adjudications.
The only causes for which they can be
displaced, is, conviction of treason, bribery, and high crimes and
This part of the plan is so modelled, as to
authorise the courts, not only to carry into execution the powers expressly
given, but where these are wanting or ambiguously expressed, to supply what is wanting
by their own decisions.
They will give the sense of every article
of the constitution, that may from time to time come before them. And in their
decisions they will not confine themselves to any fixed or established rules,
but will determine, according to what appears to them, the reason and spirit of
the constitution. The opinions of the supreme court, whatever they may be, will
have the force of law; because there is no power provided in the constitution,
that can correct their errors, or controul their adjudications. From this court
there is no appeal. And I conceive the legislature themselves, cannot set aside
a judgment of this court, because they are authorised by the constitution to
decide in the last resort. The legislature must be controuled by the
constitution, and not the constitution by them. They have therefore no more
right to set aside any judgment pronounced upon the construction of the
constitution, than they have to take from the president, the chief command of
the army and navy, and commit it to some other person. The reason is plain; the
judicial and executive derive their authority from the same source, that the
legislature do theirs; and therefore in all cases, where the constitution does
not make the one responsible to, or controulable by the other, they are
altogether independent of each other.
The judicial power will operate to effect,
in the most certain, but yet silent and imperceptible manner, what is evidently
the tendency of the constitution: – I mean, an entire subversion of the
legislative, executive and judicial powers of the individual states. Every
adjudication of the supreme court, on any question that may arise upon the
nature and extent of the general government, will affect the limits of the
state jurisdiction. In proportion as the former enlarge the exercise of their
powers, will that of the latter be restricted.
danger was plain to see, yet it went unaddressed even though its solution was
equally evident to those who had eyes to see:
Allow the upper house of the federal legislature, the Senate, to throw
out or amend federal Supreme Court rulings, a power the Framers and their
generation were well aware of since the House of Lords, the upper chamber of
Parliament, had this power over the courts in England (and retained it until
quite recently). How much unnecessary
conflict and cultural destruction could have been prevented; how many unborn
children saved; how many children could have prayed or read the Holy Scriptures
in their schools; etc.; in the States if only a short clause giving such a
power to the uS Senate had been added to Article III?
it was not. And this omission, along
with other defects of the current federal constitution, is proof enough that it
is not a Heaven-sent plan of government, that it is not the incarnation of the Ideal
Form in the Divine Mind of governmental organization, which the idolaters of
Americanism make it out to be. To
continue to make such outlandish claims blinds us to its very real problems,
making it extremely difficult to change the current federal governing structure
in favor of something better.
Unfortunately, those calling the loudest for ‘national repentance’ (https://www1.cbn.com/cbnnews/us/2020/september/the-return-and-prayer-march-bathe-nations-capital-in-prayer-and-repentance; by the way, the [u]nited States ain’t
‘one nation indivisible’: https://www.abbevilleinstitute.org/blog/was-secession-treason/) are those least likely to repent of and
correct the errors of past generations contained in the 1787 constitution and
some of its later amendments.
further reading on this subject, please visit this page:
Ælfred the Great, King of England, South Patron, pray for us sinners at the Souð, unworthy though we are!
to the Union!