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Tuesday, September 29, 2020

The Anti-Federalists and Article III


The 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. 

What 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 misdemeanors.

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.

 . . .

--https://teachingamericanhistory.org/library/document/brutus-xi/

The 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?

Yet 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.

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For further reading on this subject, please visit this page:

https://csac.history.wisc.edu/document-collections/constitutional-debates/judiciary/

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Holy Ælfred the Great, King of England, South Patron, pray for us sinners at the Souð, unworthy though we are!

Anathema to the Union!

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