In 1803, Thomas Jefferson opined that the courts granting themselves the power of Judicial Review could lead to despotism in America.
I posit that this has finally occurred, through the redefining of the word “pardon” by our most Supreme Court.
Mere hours before a new president was to be sworn in, Joe Biden pardoned some of his family members and dozens people within his own administration and in federal positions, and commuted the sentences of about 1,500 prisoners currently serving time.
In December, Biden had also pardoned his son, Hunter, for any crimes he may have committed against the United States. All of their pardons are absolute and account for any vague crime that dates back to January 1, 2014, as no coincidence of their own. Some of the pardons are already questionable for being released early in the day – and yet, giving future pardon through the end of the day they were signed, or a future pardon for any criminal activity that may have happened on January 20, 2025.
President Biden and the collective media called these “preemptive pardons.” This is interesting, as there is no existence of such a legal term in the entire history of American jurisprudence. It is not even in Black’s Law Dictionary, 12th Edition, which was just released in 2024. The term is unprecedented, meaning it has never been defined in a court ruling or in legislation before.
It has never been defined by our government, it is not in our founding documents, and it was not discussed in either the Federalist or Anti-Federalist Papers.
“Preemptive pardon” is a new term, created by the courts practicing modern Judicial Activism. However, if the validity of these preemptive pardons is fought in court, Biden will argue for this new term to be defined by those same courts, creating a circular power structure with no oversight. The courts have previously implied this power exists for the Executive under pardon powers in previous rulings, notably Ex parte Garland (1866) and United States v. Wilson (1833), where the court claimed a pardon can occur at any time throughout the judicial process.
(In United States v. Burdick (c. 1915) Burdick’s counsel came before the court with a preemptive pardon question, but the court refused to discuss its legitimacy; thus, it was never formally defined. Now, amazingly, after choosing the cases they will hear and then subsequently using those cases to interpret new powers of government, they will have bestowed upon themselves the ability to define it in a case that may, shockingly, come before them. It’s remarkably circular reasoning, but I digress.)
Oftentimes, the Court finds it a burden unto itself to have the power to redefine and reinterpret words and their meanings in our Constitution and laws. It feels fully responsible for doing so, and thus quickly granted themselves this power unilaterally in their own court decision, Marbury v. Madison (c. 1803). The other branches of government, the states, and the people were not involved in this amendment that re-envisions the Constitution, which effectively granted the courts unchecked power to revise our founding documents whenever they please under the pretense of staying cool and hip with modern times.
In attempting to claim this power, the Court stated that the Constitution had “broad language” with “unknown meaning” that has “legal holes and gaps” just a mere 17 years after it was written. This makes absolutely zero sense because words can not exist without first being defined, and, therefore, could not have existed with unknown meaning. We call words with unknown meaning or definition “gibberish”, and we certainly don’t expect a country’s founding documents to consist of gibberish.
As a matter of fact, every word used in the Constitution had a known meaning, otherwise various bodies from special conventions of the various states could not have known how to even read the document or know what they were signing. This would – by the very nature of the agreement – make it unconscionable as the signatories did not have the intelligence to capably sign the document or know how it worked. This is not how contract law works.
Indeed, the Constitution had real and verifiable meaning, and those words and meanings were formally collected into an alphabetized document in 1881, published and called “Black’s Law Dictionary, First Edition.” Black’s Law Dictionary is historical evidence of definitions of legal terminology and the sometimes rapid evolution of a word’s meaning through court revision or legislative acts — the former being an illegal form of legislation from the bench, and the latter being the legitimate and expressed power solely of the legislature.
Nevertheless, the Supreme Court granted this power to themselves and now say they cannot overturn it due to it being an established tradition, whatever that means. A “tradition” does not follow from the rule of law or supersede it, or principles of limited government, or the Constitution. Could you imagine the Constitution getting ratified if it stated something to the effect of, “Any branch of government may break the law for an undetermined amount of time and this can no longer be overturned once they decide amongst themselves that it is tradition…”? I imagine the delegates would have scoffed at the absurdity.
Or the rule of law followed that it was okay to arrest political dissidents because it was tradition?
“Tradition” then meant the courts could subsequently rewrite the Constitution by changing the definition of words as the sole arbiter of the agreement amongst the states. The courts are not signatories — they are created by it — and nowhere in the document does it prescribe a method for arbitration that allows the arbiters to make changes to the document outside of the formal amendment process. The courts were only granted the power to determine whether a law was Constitutional or not, based on the fixed words in the legal documents that were ratified — in other words, laws that were defined by the legislatures and passed by those various bodies. They were not granted the power to redefine the Constitution — nor any other law — only to determine if it is Constitutional the way it was written by the legislatures, who have sole legislative authority and ability to define legal words used in such laws. Otherwise a law without a defined word is overly broad and must be struck down, according to the principles of the rule of law.
The courts subsequently invented the notion that the Constitution was “living” for the purpose of redefining it for modern times, explaining how it was a “living document” because it can be amended and thus can also be redefined as a document by them and only them (are we seeing a pattern here?)
Our modern times have clearly placed us into a form of despotism, and this is probably not a good thing, considering this is a far departure from the clear statements made in our Declaration of Independence…