Checks and Balances

Checks and Balances

Restoring Constitutional Confidence

In the infamous Dred Scott case of1857, the U.S. Supreme Court declared people imported from Africa to besub-human and thus not worthy of freedom. This holding involved such a twistingof the text of the U.S. Constitution that a dissenter wrote: “[W]hen strictinterpretation of the Constitution, according to fixed rules which govern theinterpretation of laws, is abandoned, and the theoretical opinions ofindividuals are allowed to control its meaning, we have no longer aConstitution; we are under the government of individual men, who for the timebeing have power to declare what the Constitution is, according to their ownviews of what it ought to mean.”[1] Such a hijacking of the Constitution must end.

President Thomas Jefferson wrote that a branch of civil governmentthat gave itself sole authority to interpret the Constitution was a “despoticbranch.”[2] We have observed the evils that result when our civilofficials fail to faithfully follow their oaths of office by keeping the textof the U.S. Constitution their foremost human guide: slavery, sterilization,sodomy, and abortion. We could add to that list theft throughinflation of the money — an evil President Andrew Jackson fought hard againstthe U.S. Supreme Court in his day and eventually succeeded in defeating.

In the first article in this series, we addressed the ProtestantReformation principles which led our founders to make our civil government oneof Law rather than of men. You can see that article here. In the second article in the series, wesaw how deviations from the text of the U.S. Constitution has resulted in greattravesties of justice, and you can read that article here. Now we will address how our officials shouldhold each other accountable to the U.S. Constitution as the highest human civilauthority in our nation.

 

III. How Civil OfficialsMay Hold Each Other Accountable to the Constitution. 

As each official at all levels of civil government in the UnitedStates makes a commitment to uphold the U.S. Constitution, an essential aspectof that commitment must entail that they hold one another accountable to theConstitution. Likewise, federal and state governments should hold each otheraccountable to the Constitution. Within these two jurisdictions, each branchshould hold the others accountable. Below we consider some specific ways thatthis accountability has historically been performed and today should beperformed.

 

A. How Congress and thePresident May Hold the Judiciary Accountable to the Constitution.

Notions that any majority of Justices of the Supreme Courtmay act as the “ultimate interpreter of the Constitution,”[3] that “the interpretation of the [Constitution] enunciatedby [such a majority] . . . is the supreme law of the land,”[4] and that “[a] decision [of such a majority]” on aconstitutional issue “cannot be reversed short of a constitutional amendment”[5] subvert stable government and society. Undeniably, “noamount of repetition of . . . errors in judicial opinions can make the errorstrue”,[6] and if the judicial decisions are not true they cannot“establish Justice.” In addition, if “WE THE PEOPLE” have no alternative toaccepting as “justice” what is untrue, except by amending the Constitution ineach and every instance of judicial fallacy, then those decisions willundermine “domestic Tranquility”.[7]

If men allow this abuse to continue, eventually not only will theU.S. Constitution fall into discredit, but constitutionalism itself will sinkinto derision. Once “the rule of law” in America is exposed as “the rule ofmen,” soon to follow will be the demise of “the Blessings of Liberty forourselves and our Posterity.”

 

1. How the President mayhold the Judiciary accountable.

The Constitution gives the President the duty to “take Care thatthe Laws be faithfully executed.” U.S. Const. art. II, § 3. Judicial decisionsare not “Laws” of any kind.

In the ordinary use of language it will hardly be contended thatthe decisions of the Courts constitute laws. They are, at most, only evidenceof what the laws are; and are not of themselves laws. They are oftenre-examined, reversed, and qualified by the Courts themselves, whenever theyare found to be either defective, or ill-founded, or otherwise incorrect.

Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842).

Thus, the President does not have to “faithfully execute[]” courtdecisions at all. He only needs to enforce the “Laws” the courts properlyapply. He certainly does not have to enforce decisions that are “eitherdefective, or ill-founded, or otherwise incorrect” when compared to theConstitution, which he has taken an oath “to the best of [his] Ability, [to]preserve, protect and defend” against anyone and everyone. U.S. Const. art. II§ 1, cl. 7.

 

PresidentAndrew Jackson had several successful battles with the U.S. Supreme Court overthe proper interpretation of the U.S. Constitution, most notably over thedefeat of the Second National Bank.

If the President refused to enforce an unconstitutional judicialdecision, his action should not be considered areversal. The Judiciary might continue to cite the ruling as a precedent,but no judge could count on the President’s assistance in imposing theunconstitutional decision on the litigants, or anyone else.

One particular instrument the President could use toward judicialaccountability would be the United States Marshals Service, “a bureau withinthe Department of Justice under the authority and direction of the AttorneyGeneral.” See 28 U.S.C.§ 561(a). The President appoints “by and with the advice and consent of theSenate, a United States marshal for each judicial district of the UnitedStates”. See id at §561(c). So the President may remove (and with the senate’s approval replace) the marshals as he seesfit, if they fail to perform his directions.

Without the support of the marshals, the Judiciary would beseverely handicapped. “It is the primary role and mission of the United StatesMarshals Service to provide for the security and to obey, execute, and enforceall orders of the United States District Courts [and] the United States Courtof Appeals”. See id at §566(a).

The marshals are governed by this rule: “Except as otherwiseprovided by law or Ruleof Procedure, the United States Marshals Service shall execute all lawful writs, process, and ordersissued under theauthority of the United States, and shall command allnecessary assistance to execute its duties.” Id at §566(c)(emphasis added).

So if the President determines that some judicial “writ[],process, [or] order[ is not ]issued under the authority of the United States”because it violates the Constitution; and if, as part of his duty to “take Carethat the Laws be faithfully executed” he commands the Marshals Service not toexecute such “writ[], process, [or] order[]”; then the Service will thereby beexcused by the law of the Constitution (as understood by the President) fromdoing so. Judicial supremacy becomes a pipe dream without Presidentialcooperation.

The Supreme Court may try to circumvent such a Presidentialmove by “appoint[ing] [its own] marshal, who shall be subject to removal by theCourt,” not the President. See id at § 672(a). Compare U.S. Const. art. II, § 2, cl. 2 with Myers v. United States, 272 U.S.52, 162-63 (1926). But in the face of the President’s adamant refusal toassist, the Supreme Court would probably not adequately perform its businesswith this slender force. One may “[s]erve and execute all process orders issuedby the Court” without necessarily seeing them obeyed.

Similarly, other efforts made by the Supreme Court would proveineffective. The Court may try to enjoin the President or his subordinates.See Mississippi v. Johnson, 71 U.S. (4 Wall.) 475(1867); Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1868). The Court may hold himin contempt. But its citations would only be overturned by executive pardons. See U.S. Const. art. II, § 2,cl. 1.

Indeed, as the Court has already conceded, “[t]he executive poweris vested in a President, and as far as his powers are derived from theConstitution, he is beyond the reach of any department except the modeprescribed by the Constitution through the impeachment power.” Kendall v.United States ex rel. Stokes,37 U.S. (12 Pet.) 524, 610 (1838).

 

2. How Congress may holdthe Judiciary accountable. 

“Whatever functions Congress are, by the Constitution, authorizedto perform, they are, when the public good requires it, bound to perform.”United States v. Marigold, 50 U.S. (9 How.) 560, 567 (1850).

Congress may choose several various approaches to prevent judgesfrom misconstruing the Constitution. One option is to simply prevent them fromhearing certain constitutional issues in the first place. This remedy would affectthe federal court as a whole. Another option is for Congress to remove judgesfrom the bench for lack of “good behavior” or to impeach and convict them forviolating the law. This second remedy would expel specific federal judges whohave displayed a disposition toward unconstitutional opinions and orders.

 

a. Limiting theJudiciary’s jurisdiction.

The Constitution gives the Supreme Court original jurisdiction“[i]n all cases affecting ambassadors, other public ministers and consuls, andthose in which a state shall be party.” U.S. Const. art. III, § 2, cl. 2. Onall other matters, however, the Constitution gives Congress the power toregulate and make exceptions to the Supreme Court’s jurisdiction. “In all theother cases before mentioned, the Supreme Court shall have appellatejurisdiction, both as to law and fact, with such exceptions, and under suchregulations as the Congress shall make.” Id.

The Supreme Court early recognized that Congress had thisconstitutional power when it wrote:

[T]he political truth is, that the disposal of the judicialpower, (except in a few specified instances) belongs to congress. If congresshas given the power to this Court, we possess it, not otherwise: and ifcongress has not given the power to us, or to any other Court, it still remainsat the legislative disposal. Besides, congress is not bound, and it would,perhaps, be inexpedient, to enlarge the jurisdiction of the federal Courts, toevery subject, in every form, which the constitution might warrant.

Turner v. Bank of North America, 4 U.S. (4 Dall.) 8, 10 (1799)(Chase, J.).

In Ex parte McCardle, theSupreme Court went so far to subordinate itself to the jurisdictionallimitations of Congress that it adjusted its response to a particular casewhile on appeal. It declared:

We are not at liberty to inquire into the motives of theLegislature. We can only examine into its power under the Constitution; and itspower to make exceptions to the appellate jurisdiction of this court is givenby express words.

What, then, is the effect of the repealing Act upon the casebefore us? We cannot doubt to this. Without jurisdiction the court cannotproceed at all in any cause. Jurisdiction is the power to declare the law, andwhen it ceases to exist, the only function remaining to the court is that ofannouncing the fact and dismissing the cause.

74 U.S. (7 Wall.) 318 (1868) at 514.

In addition to granting Congress the power to limit the SupremeCourt’s appellate jurisdiction, the Constitution gives Congress the power tocreate or eliminate inferior courts. “The judicial power of the United States,shall be vested in one Supreme Court, andin such inferior courts as the Congress may from time to time ordain andestablish.” U.S. Const. art. III, § 1 (emphasis added).

[I]f the Constitution had ordained and established the inferiorcourts, and distributed to them their respective powers, they could not berestricted or devested by Congress. But as it has made no such distribution . .. having a right to prescribe, Congress may also withhold from any court of itscreation jurisdiction of any of the [constitutionally] enumeratedcontroversies. Courts created by statute can have no jurisdiction but such asthe statute confers. No one of them can assert a just claim to jurisdictionexclusively conferred on another, or withheld from all.

The Constitution has defined the limits of the judicial power ofthe United States, but has not prescribed how much of its [sic] shall beexercised by the [inferior courts]; consequently, the statute which does prescribethe limits of their jurisdiction, cannot be in conflict with the Constitution,unless it confers powers not enumerated therein.

Sheldon v. Sill, 49 U.S. (8 How.) 441, 448-49 (1850).

So Congress may declare that inferior courts hear only certain questions. See Lockerty v. Phillips, 319U.S. 182, 187 (1943). Congress may restrict inferior courts from grantingcertain remedies. See Lauf v.E.G. Skinner & Co., 303 U.S. 323, 329-30 (1938); Drivers’ Union v. LakeValley Co., 311 U.S. 91, 100-03 (1940). Congress may even require that inwhatever questions the inferior courts hear, their decisions may not beappealed. See UnitedStates v. Klein, 80 U.S. (13 Wall.) 128, 145 (1872).

What may prevent Congress from abusing this power by limiting thefederal courts’ jurisdiction so much that it plainly licenses a violation ofthe Constitution?

 

Anexercise of the checks and balances integral to our civil system is that eachand every one of the branches should hold one another accountable to theConstitution.

One check on Congressional power would be the state courts, whichhave jurisdiction to hear federal issues and whose jurisdiction cannot belimited by Congress.See Testa v.Katt, 330 U.S.386 (1947); Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962); Free v.Bland, 369 U.S. 663 (1962); Sullivan v. Little Hunting Park, 396 U.S. 229(1969).

Another check on an unconstitutional abuse by Congress would befor the Supreme Court to resist the limitation and rule anyway. Other electedofficials, including the President, would have to examine the dispute anddetermine which view of the Constitution appears most accurate.

In United States v.Klein, Congress created a limitation that the Court believed deniedparties their constitutional protections and took a constitutionally grantedpower away from the President. The Court refused to follow the limitation. Klein, 80 U.S. (13 Wall.) 128 (1872).

This Congressional approach to constitutional accountability bylimiting the jurisdiction of the Court would be most effective when there iswidespread abuse in the Judiciary and swift action is needed. When the abuse iswith only one judge or a handful of judges, the next approach would probably bepreferable.

 

b. Removing judges for lackof “good Behaviour” or for subverting the Constitution.

The Constitution does not guarantee any judge an appointment forlife. Rather, it states that “[t]he judges, both of the supreme and inferiorcourts, shall hold their offices during good Behaviour”. U.S. Const. art. III,§ 1. In addition, the Constitution states that “all civil officers of theUnited States[] shall be removed from office on impeachment for, and convictionof Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. Const. art.II, § 4.

JusticeSamuel Chase was impeached by the U.S. House of Representatives for allegedlypartisan leanings in his court decisions but was ultimately acquitted by theU.S. Senate.

If judges may hold their office only “during good Behaviour”, thenthey may be removed for conduct that constitutes less than “good Behaviour.”

When it comes to “high Crimes and Misdemeanors”, the Constitutiongives the procedure to follow for removal (“Impeachment . . . and Conviction”),but does not fully define “high Crimes and Misdemeanors.” To understand thisphrase as the Founders understood it, we have to investigate the history behindits use in Common Law practice.

The phrase “high Crimes and Misdemeanors” embraces a host ofimproper conduct. Blackstone described the need of impeachment for “aprosecution of the already known and established law.” 4 Sir WilliamBlackstone, Commentaries *256. A judge’s violation of the “Supreme Law of theLand” meets that requirement. So while an impeachable offense would includecrimes, it would not be limited to crimes.

“No one has as yet been bold enough to assert that the power ofimpeachment is limited to offenses positively defined in the statute-book ofthe Union as impeachable high crimes and misdemeanors.” 1 Joseph Story,Commentaries on the Constitution of the United States (Hilliard, Gray & Co. 1833), ante note 121, § 797, at 581.

“Congress have unhesitatingly adopted the conclusion that noprevious statute is necessary to authorize an impeachment for any officialmisconduct.” Ibid., §799, at583.

The view that judges may be impeached for unconstitutionalopinions, not merely crimes, has long legacy in our English Common Lawtradition. “[I]f the judges mislead their sovereign by unconstitutionalopinions . . . these imputations have properly occasioned impeachments; becauseit is apparent how little the ordinary tribunals are calculated to take intocognizance of such offenses, or to investigate and reform the general policy ofthe state.” 2 Richard Woodeson, Laws of England 611-12 (1792).

Justice Joseph Story confirmed that this practice has carried intoour own impeachment system.

In examining the parliamentary history of impeachments, it willbe found that many offenses, not easily discernible by law, and may of a purelypolitical character, have been deemed high crimes and misdemeanors worthy ofthis extraordinary remedy. Thus, . . . judges . . . have . . . been impeached .. . for misleading their sovereign by unconstitutional opinions, and forattempts to subvert the fundamental laws, and introduce arbitrary power.

1 J. Story, Commentaries, § 800, at 584 (footnote omitted).

Subverting the Constitution was apparently within the definitionof “high Crimes and Misdemeanors” as the Founders understood it. At the FederalConvention, George Mason argued that the phrase “high Crimes and Misdemeanors”should be added to this provision so that it would be understood to includesubversions of the Constitution. “Why is the provision restrained to Treason& bribery only? Treason as defined in the Constitution will not reach manygreat and dangerous offenses. . . . Attempts to subvert the Constitution willnot be Treason as above defined.” Debatesof the Federal Convention of 1787 as Reported by James Madison, DocumentsIllustrative of the Formulation of the Union of American States (1927) at 691.

By impeaching and convicting errant judges so they are removedfrom the federal courts, Congress would provide a healthy Constitutional checkto the wayward Judiciary.

 

B. How State Officials mayhold the Judiciary Accountable to the Constitution.

The Constitution requires “the members of the several statelegislatures, and all executive and judicial officers, both of the UnitedStates and of the several states, [to] be bound by oath or affirmation, tosupport this Constitution”. U.S. Const. art VI. As a result, stateconstitutions require state officials to take an oath or affirmation to supportthe United States Constitution.

A detailed look into how each elected official of a state may seekto uphold the Constitution against a wayward Judiciary would take volumes, andwould vary somewhat within each state jurisdiction. But having alreadyconsidered examples of how the executive officer and legislative officers ofthe federal government may act, it would not be hard to imagine how similarchecks could be applied on a state level. For example, although a statelegislature could not impeach and convict federal judges who rule contrary tothe Constitution, they may be able to remove state judges subverting it.

Two particular options available to the state governments shouldbe addressed. The first option is an appeal to the Doctrine of Interposition, whichcould be raised by a civil official, federal or state, but is particularlyapplicable in a controversy between the federal government and the stategovernments because of early Supreme Court rulings involving the doctrine. Thesecond option is a refusal by state court judges to follow federal precedentsand orders that conflict with the Constitution — also an act of interposition.

 

1. How the State May Raisethe Doctrine of Interposition.

The Bill of Rights from the Constitution declares, “The powers notdelegated to the United States by the Constitution, nor prohibited by it to theStates, are reserved to the States respectively, or to the people.” U.S. Const.amend. X.

The Constitution does not give exclusive power to the federaljudiciary to interpret the Constitution, nor does it prohibit states frominterpreting the Constitution. To the contrary, the Constitution requires stateofficials to take oaths to support the Constitution. They are not required totake oaths to uphold the decisions of the federal courts.

Therefore, when a case arises that strips a state of a portion ofher reserved sovereignty, that state as the aggrieved party could simply refuseto acquiesce in and to apply the judiciary’s decision.

In Worcester v.Georgia, the federal court voided the convictions of missionaries who hadresided among the Cherokee Indians without a state license. 31 U.S. (6 Pet.)515 (1832). Although Georgia had participated in the litigation, Georgia’sGovernor refused to release the missionaries until they agreed to leave thestate. When President Andrew Jackson[8] supported Georgia, the U.S. Supreme Court proved powerless,or at least reluctant, to do anything about this exercise of interposition.[9] The Doctrine of Interposition arose formally as adefined doctrine out of this case.

The doctrine [of Interposition means] that a state, in theexercise of its sovereignty, may reject a mandate of the federal governmentdeemed to be unconstitutional or to exceed the powers delegated to the federalgovernment. The concept is based on the 10th Amendment of the Constitution ofthe United States reserving to the states powers not delegated to the UnitedStates. . . . Implementation of the doctrine may be peaceable, as byresolution, remonstrance or legislation, or may proceed ultimately to nullificationwith forcible resistance.

Black’s Law Dictionary (4thed. 1951).[10]

“The Constitution does contemplate and provide for the contingencyof adverse state interposition or legislation to annul or defeat the executionof national laws.” In Re Chargeto Grand Jury, Fed. Case No. 18,274 [2 Spr. 292].

Recently, however, the Judiciary has begun to shun the Doctrine of Interposition as anantebellum doctrine, calling it “without substance.”[11] Their remarks only expose once again their desire toavoid accountability to the Constitution, as they refuse to recall how ourcountry became free from the tyranny of Great Britain by an act ofinterposition.

The Court’s ruling in Exparte Young described how unconstitutional laws and usurping officials shouldbe treated. 209 U.S. 123 (1908). These principles apply to officials of boththe federal and state governments. See,e.g., Minnesota v. Hitchcock, 185 U.S. 373, 386 (1902). If the Courtwere consistent, it would have to be held to the same standard when it issuedunconstitutional rulings and orders.

The [judicial decision] to be enforced is alleged to beunconstitutional; and if it be so, the use of the name of the [United States]to enforce an unconstitutional [decision] . . . is a proceeding without theauthority of, and one which does not affect, the [United States] in itssovereign or governmental capacity. It is simply an illegal act upon the partof a [group of justices] in attempting, by the use of the name of the [Unitedstates], to enforce a [judicial decision] which is void because unconstitutional.If the [judicial decision] . . . be a violation of the Federal Constitution,the [errant justices], in proceeding under such [decision], come[] intoconflict with the superior authority of the Constitution, and [they are] inthat case stripped of [their] official or representative character and [are]subjected in [their] person[s] to the consequences of [their] individualconduct. The [United States] has no power to impart to [them] any immunity fromresponsibility to the supreme authority of the Constitution.

Ex parte Young, 209 U.S.123.

From a strategic standpoint, for a state to effectively hold thefederal courts accountable to the Constitution through an act of interposition,the strategy should be for as many state officials to stand together in thecontroversy as possible. At the very least, the Governor of the state, as theexecutive officer, should give full support to any other state officials underattack by unconstitutional orders or precedents. State governors usually havecontrol over state national guards and state police, who can see thatunconstitutional orders are not enforced. If a state makes a strong stand, thePresident of the United States will have to examine the Constitution anddetermine which side is in the right before or if he intervenes. Congress mayalso intervene to help the state.

Whatever the outcome, a state official who takes his oathseriously cannot follow the crowd if the crowd is leading him off the cliff ofconstitutional disintegration. To do so would be nothing less than treasonagainst “the Supreme Law of the Land.” As the Court wrote in Cohens v. Virginia, “We have no more right todecline the exercise of jurisdiction which is given, than to usurp that whichis not given. The one or the other would be treason to the constitution.” 19U.S. (6 Wheat) 264, 378 (1821).

 

2. How State Judges MayChallenge Unconstitutional Federal Court Rulings and Orders.

“This Constitution, . . . shall be the supreme law of the land;and the judges in everystate shall be bound thereby”. U.S. Const. art. VI(emphasis added). Under this article, state judges have an obligation to upholdthe Constitution against all other competing legal authorities.

On the other hand, the U.S. Supreme Court has taken the positionthat any of its decisions that “state a rule based upon the Constitution of theUnited States” is “under the Supremacy Clause, . . . binding upon statecourts.” See Henry v.City of Rock Hill, 376 U.S. 776, 777 n. 1 (1964) (per curiam). This doctrine is constitutionally incoherent.If it were true that Court rulings had the same authority as the Constitutionunder the Supremacy Clause, then how could the Court ever overrule any of itsprevious decisions that “state[] a rule based upon the Constitution”? And yet,the Court has often overruled its decisions. See,e.g., Payne v. Tennesee, 501 U.S. 808, 827–30 & n.1 (1991).

In 1968 the Utah Supreme Court stood against the usurpations ofthe Warren U.S. Supreme Court, declaring:

The United States Supreme Court, as at present constituted, hasdeparted from the Constitution as it has been interpreted from its inceptionand has followed the urgings of social reformers in foisting upon this Nationlaws which even Congress could not constitutionally pass. It has amended theConstitution in a manner unknown to the document itself. While it takesthree-fourths of the states of the Union to change the Constitution legally,yet as few as five men who have never been elected to office can by judicial fiataccomplish a change just as radical as could three-fourths of the states ofthis Nation. As a result of the recent holdings of that Court, the sovereigntyof the states is practically abolished, and the erstwhile free and independentstates are now in effect and purpose merely closely supervised units in thefederal system.

We do not believe that justices of once free and independentstates should surrender their constitutional powers without being heard from.We would betray the trust of our people if we sat supinely by and permitted thegreat bulk of our powers to be taken over by the federal courts without at leststating reasons why it should not be so. By attempting to save the dualrelationship which has heretofore existed between state and federal authority,and which is clearly set out in the Constitution, we think we act in the bestinterest of our country. . . .

When we bare our backs to receive the verbal lashes, we will tryto be brave; and should the great court of these United States decide that inour thinking we have been in error, then we shall indeed feel honored, for wewill then be placed on an equal footing with all those great justices who atthis late date are also said to have been in error for so many years.

Dyett v. Turner, 439 P.2d 266 (1968).

In 2003 Chief Justice Roy Moore of Alabama stood against anunconstitutional federal court’s order when he refused to remove a TenCommandment’s monument from the State Judicial Building. As Chief Justice,Judge Moore had legal sway over the building authority. Only when Chief JusticeMoore was reprehensibly removed from office was the monument ejected.

Critics of such actions by state judges have said that indisobeying an order by a federal court, those state judges have violatedstandards of professional responsibility. In Chief Justice Moore’s case, he wasaccused of violating Alabama’s Canon of Judicial Ethics.

“A judge should respect and comply with the law and should conducthimself at all times in a manner that promotes public confidence in theintegrity and impartiality of the judiciary.”AlabamaCanon of Judicial Ethics, Canon 2, § a (2001).

Critics argue that by opposing the federal court, a state judgecauses the public confidence in the impartiality of the judiciary to dissolve.

Nothing could be further from the truth. As we have alreadydiscussed, deviance from the Constitution is what causes the public to loseconfidence in the Judiciary and the justice system. Besides that, even if astate’s canon of judicial ethics were to require a judge to follow aunconstitutional order, that canon would be trumped by the Constitution, whichstates that “[t]his Constitution . . . shall be the supreme law of the land;and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” U.S.Const., art. VI (emphasis added).

Through the examples of state judges with constitutional fidelity,other civil officials may grow inspired to restrain judicial usurpation. Ifother civil officials do unite with these state judges in defense of theConstitution, strategic success will likely increase. Yet whether success seemssure or suspect, the state judge should first seek alliance from the SupremeJudge of the Earth who does right.[12] The federalJudiciary may seem a colossal giant, but “the battle is the Lord’s”. ISamuel 17:47.God “maketh the judges of the earth as vanity.” (See Isaiah 40:23.)

 

IV. Conclusion

When a government official is ordered by the Judiciary tofulfill an action that the government official believes is contrary to the U.S.Constitution, that official must remember and act upon four realities:

He must first remember his oath before God to uphold theConstitution, not the opinions of the Judiciary; he must second remember thatthe Constitution is “the Supreme Law of the Land”, not the Court; he must thirdremember the admonition of the Lord to “[r]ender to Caesar the things that areCaesar’s”[13]; and then fourthremember that in the United States, Caesar is the Constitution. If he doesthis, the Constitution will persevere, and so will “the Blessings of Libertyfor ourselves and our Posterity.”

Endnotes:

1.       Dred Scott v. Sandford, 60 U.S. 393, 620-621(1856) (Curtis, J., dissenting). []

2.       8 TheWritings of Thomas Jefferson 310 (Paul L. Ford ed., 1897). []

3.       Bakerv. Carr, 369 U.S. 186, 211 (1962); Powell v. McCormack, 395 U.S. 486, 548–549(1969). []

4.       Cooperv. Aaron, 358 U.S. 1, 18 (1958). []

5.       Greggv. Georgia, 428 U.S. 153, 176 (1976) (emphasis added).  []

6.       Wallacev. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, C.J., dissenting). []

7.       U.S.Const. pmbl. []

8.      PresidentAndrew Jackson had several battles with the U.S. Supreme Court where hesuccessfully asserted the responsibility and authority of the other branches ofgovernment to interpret the Constitution of the United States and not to relyupon the interpretation of the U.S. Supreme Court as the final arbiters of thatdocument. When vetoing the Second National Bank, which he believed was aninstrument of government-sanctioned theft through inflation in the money, hedisagreed with the U.S. Supreme Court’s ruling that the bank wasconstitutional, saying in his veto message of 1832 that

“If the opinion of the Supreme Court covered the whole ground ofthis act, it ought not to control the coordinate authorities of thisGovernment. The Congress, the Executive, and the Court must each for itself beguided by its own opinion of the Constitution. Each public officer who takes anoath to support the Constitution swears that he will support it as heunderstands it, and not as it is understood by others. It is as much the dutyof the House of Representatives, of the Senate, and of the President to decideupon the constitutionality of any bill or resolution which may be presented tothem for passage or approval as it is of the supreme judges when it may bebrought before them for judicial decision. The opinion of the judges has nomore authority over Congress than the opinion of Congress has over the judges,and on that point the President is independent of both. The authority of theSupreme Court must not, therefore, be permitted to control the Congress or theExecutive when acting in their legislative capacities, but to have only suchinfluence as the force of their reasoning may deserve.”

President Jackson’s Veto Message Regarding the Bank of the United States;July 10, 1832. []

9.       See 1Charles Warren, The Supreme Court in the United States History (1926), at729-79. []

10.   Morerecent editions of Black’s Law Dictionary have reflected the Court’scontemporary opposition to the Doctrine of Interposition. []

11.    UnitedStates v. Louisiana, 364 U.S. 500, 501 (1960). []

12.    Genesis 18:25.[]

13.    Mark 12:17.[]

http://americanvision.org/5797/the-court-or-the-constitutuion-part-3/#.T9akgbCe5GQ

Mark Levin points out on the link below how we were founded on a system of checks and balances:

Checks and Balances