In the last month of the recent term of the United States Supreme Court the Justices handed down five decisions which re-affirmed the limited role of government in the lives of us citizens. One even drew set a limit on the Court’s own power.
The reaction to those decisions, particularly from some politicians and the media who disagreed with them, reflects a breathtaking ignorance of history and the law. Some outright misrepresented the Court’s rulings. From what I heard/read from those critics, it seems none of them actually read the cases.
Or if they did read them, they clearly didn’t comprehend what the Court said, either because they willfully chose not to in pursuit of their agendas — or they are simply ignorant of the very basics of our system of government. The latter, and the public being mislead by them, can be attributed to our failing public education system.
In an effort to help those victims of our bureaucracy, I will endeavor to explain what these cases actually decided — and the Constitutional rationale for each. I will do so with a minimum of ‘legal jargon’.
The award of the dumbest comment, by far, by a public official about one Court decision (and possibly the dumbest thing I’ve ever heard a politician say — which is no easy task) came from the mouth of a United State Senator who recently said, “Who the heck would know what our founding fathers meant…” in the Constitution.
Well, Senator, how about anyone who can read the English language? It’s not like the founders left no written records of what they meant.
No doubt the esteemed Senator is a product of public school education. She’s apparently unaware of the Federalist Papers, for instance, which were written by three of the founders, expressly explaining what they meant. But her lack of a good education does not justify such a pronouncement of ignorance by a United States Senator. There is a ancient axiom that ignorantia iuris nulla excusatio est (“ignorance of the law is no excuse”).
So in the spirit of full disclosure to help the Senator (and anyone who agrees with her) understand how I know what the founders meant, here is a list of the sources upon which I’m primarily relying to write about these five cases.
First, I read each of the case opinions in their entirety. Within each, the Justices themselves source the legal/historical bases of their decisions — and the intent of the founders.
The Justices have access to the best sources of the history of our Constitution that exist. I’ve been to the United States Supreme Court library which is impressive. There is also the Library of Congress right next door.
Included within those libraries are the writings by the first Chief Justice of the Court, John Jay, one of the authors of both the Constitution and the Federalist Papers. That would be a good place for the Senator to start learning what the “founding fathers meant”. Both libraries are across the street from where she works in the US Capitol building, so she shouldn’t have trouble finding them.
Two of the primary sources are available free on line:
1) The Federalist Papers. I bought a two volume set at the Supreme Court bookstore that includes the writings of the ‘anti-federalists’ who opposed the Constitution — and the founders responses to that opposition.
2) Commentaries on the Constitution of the United States.
Written in 1833, by a Supreme Court Justice nominated to the Court by President James Madison – who was considered the “architect” of the Constitution by the founders themselves.
Next, are books by Constitutional scholars available in many public libraries:
1) The Ideological Origins of the American Revolution. Details the writings and ideas which influenced the founders.
2) The Five Thousand Year Leap. A study of how the founders were the first in human history to use a written Constitution to structure a government in which all power resided in the people.
3) Two Treatises on Government. Written a century before the American Revolution, it was so influential that Thomas Jefferson plagiarized it in the Declaration of Indepencence.
4) The Quartet: Orchestrating the Second American Revolution. Chronicles the process by which the three authors of the Federalist Papers, joined by George Washington, brought about creation of the Constitution.
5) Democracy in America. Observations of our experiment in Constitutional democracy by a french judge traveling throughout America in the 1831.
6) Government by Judiciary. An eminent Harvard law school professor’s meticulously documented criticism of the Supreme Court’s abuse of its Constitutional power.
But before I get into the five cases themselves, I will first explain the fundamentals of the Constitution, and the government it established. Some of you already know these basics, but the comments I’ve read/heard about the Court’s recent decisions clearly illustrate that much of the public (including in my own family) don’t know the basics. So this is for them.
The Constitution was created by the thirteen original States in 1787, because the then-existing national government under the Articles of Confederation wasn’t working.
The States recognized they needed a stronger central authority than what existed under the Articles — so they created the Constitution. That it was created by the States is significant.
After the successful revolution against England, each of the former colonies considered itself an independent State in the sense that ‘state’ means “a nation considered as an organized political community under one government”. In essence they each considered themselves an independent country.
The States had rival economic and territorial interests which caused tensions that could have erupted into war between them. But most critically, they had no practical ability to collectively defend themselves from foreign invasion, which at the time was a very real threat.
The Constitution created a ‘federal’ government, meaning “having or relating to a system of government in which several states form a unity but remain independent in internal affairs”. By agreeing to be a part of the United States, under the Constitution, each State gave up some of its autonomous authority to the federal government in exchange for collective security, uniform regulation of free commerce amongst them with a common currency, and a legal mechanism to resolve conflicts between them.
But in doing so, it was understood by all that the authority of the federal government was limited to those powers expressly granted to it by the States in the Constitution — and nothing more. The federal government is, and was always intended to be, a “limited government”.
Without that common understanding, the States would never have consented to submit to the Constitution. The only way it was ultimately ratified by the States was because its supporters promised that the first act of the Congress formed under it would be to amend it to assure limitations on its power.
The first Congress did so. The result was the first ten Amendments (known as the Bill of Rights) including one making it absolutely clear that the federal government has limited authority, “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.” (10th Amendment) In other words, if the Constitution doesn’t say the federal government can do something, then it can’t.
The federal government has limited unwritten “inherent powers” necessary to carry out the express powers. This is found in Article I, Section 8, which gives Congress power “[t]o make all Laws which shall be necessary and proper for carrying into Execution” the “enumerated powers” in the Constitution. You can read about them here.
To opponents of the Constitution (among whom was Thomas Jefferson) the principle objection was that the revolution had freed the States from tyrannical authority (the English monarch and parliament), and that a central federal government would simply be a new tyranny over the States.
Jefferson’s close associate James Madison recognized that potential problem, and addressed it in the Federalist #51,
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
So the authors were careful to include within the Constitution itself controls over the power of the federal government in general, and its component parts in particular. Control was created by delegating the central government’s power among three distinct branches. This is known as the “separation of powers”.
Though none of the branches can usurp the role of another, the drafters included provisions by which each can be kept from abusing its power by one, or both, of the other two branches. This is known as the “system of checks and balances”.
Separation of powers and checks and balances are often mistakenly used interchangeably. They are distinct principles to achieve related, but different, goals.
The three branches (in order of how they are ranked in importance by the founders) in the Constitution, are the legislature (Congress); the executive (President); and the judicial (Courts). The checks and balances keeping each in line were derived from the founders experiences with England that lead to the revolution.
The English parliament (legislature) and king (executive) had each abused its historic authority in oppressing the colonies. The colonial judges (judiciary) who held their positions at the pleasure of the king, shirked their historic duty to restrain the abuses of parliament and the king.
Our founders were all English subjects at the time of the revolution. They were well-educated about their historic rights (many were lawyers). So when it came time to create a new government they sought to protect themselves (and their descendants) from government becoming (using Jefferson’s term in the Declaration of Independence) “destructive” of those rights.
The founders had personal experience with what revolutionary war era author Thomas Paine meant when he wrote in his historic book, Common Sense.
“Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one.”
Two centuries later President Ronald Reagan expressed the same sentiment when (in his first inaugural address) he said, “Government is not the solution to problems, government IS the problem!”
From the founders writings, it’s clear they were astutely aware of the foibles of human nature when it comes to government. So they created the Constitution to bind themselves, and us, to the limitations on the power of government, rather than rely (as did the European countries) on the good faith of a monarch to respect the rights of the people — which history had proved was unreliable.
Enshrining the structure, and limitations, of government in a written Constitution, rather than relying on the unreliable good faith of the rulers, led founder John Adams to state that the United States was “a government of laws, not of men”. A “government of laws” rather than “men” reflected the founders’ recognition that un-checked government is the source of tyranny.
The founders also recognized tyranny can come not just from government, but from the people themselves in what James Madison described as “faction”.
“Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.”
“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”
“There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.”
“The inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects.”
The potential “effects” of factions is why we have a republic based on “limited democracy” (like Rome), rather than a pure democracy (like Athens). Rome was far more successful, and lasted longer, than Athens. Limiting the dangerous “effects” of factions is why under the original Constitution only the House of Representatives was directly elected, while the President (chosen by the Electoral College) and Senators (chosen by state legislatures) were not.
In 1912, the 17th Amendment made Senators directly elected by voters. Much of the expansion of the federal bureaucracy, budget, and deficit spending can be traced to the effects of that change. But that’s a topic of another time.
The demonstrations outside of the homes of Supreme Court justices in response to its decision regarding abortion, and the events of January 6, 2021, and the Capitol building, are both examples of factions in action. This sort of “mob rule” disrupts the “social contract” which is necessary to an ordered society. The founders intended that a fundamental purpose of the Constitution was to “thwart mob rule”.
Conceptually there is not a scintilla of difference between the two activities. Members of the current ruling faction – the Democrats – condemn and prosecute the perpetrators of one, while condoning and even encouraging those engaged in the other. Thus making a mockery of the words carved in stone on the portico of the Supreme Court building, “Equal Justice Under Law”, and perfectly illustrating the corrupting effect of faction.
Read Part Two…
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.