- Law Cases
by John Charlton
(Oct. 12, 200) — It is often said that those who remain ignorant of history are doomed to repeat it. In the present national crisis, this could not be more true. To get a better sense of the danger of usurpation of office, power and authority, it behooves all U.S. Citizens to read the writings of the founders of this great nation, and consider carefully what they so carefully considered.
One source for these writings are the Anti-Federalist papers: writings of anonymous American patriots who feared that the form of government being contained in the U.S. Constitution would lead to the problems which the American Revolutionaries so bravely fought against.
Some of the issues facing the Nation today were considered even then. Let’s take a brief walk, then, through the Anti-Federalist Papers.
Regarding the crime of usurpation, the Anti-Federalist papers speak in quote open terms; almost, prophetic terms. The 14th letter in the collection published by The Poughkeepsie Country Journal, written on January 14, 1788, just 4 months after the promulgation of the U.S. Constitution warns us of this danger, arguing that no president should be allowed to remain long in office:
There may be many favourable opportunities in the course of a man’s life to seize on additional powers, and many more where powers are hereditary; and there are many circumstances favourable to usurpations, where the powers of the man or family are undefined, and such as often may be unduly extended before the people discover it. If we examine history attentively, we shall find that such exertions, such opportunities, and such circumstances as these have attended all the executives which have usurped upon the rights of the people, and which appear originally to have been, in some degree, limited. Admitting that moderate and even well defined powers, long in the hands of the same man or family, will, probably, be unreasonably increased, it will not follow that even extensive powers placed in the hands of a man only for a few years will be abused.
The anonymous author of the 15th Letter, in this same series, also spoke to the problem which arises when the Judiciary fails to repress the unjust laws of the Legislative Branch or the usurpations of the Executive Branch:
It is true, the laws are made by the legislature; but the judges and juries, in their interpretations, and in directing the execution of them, have a very extensive influence for preserving or destroying liberty, and for changing the nature of the government. It is an observation of an approved writer, that judicial power is of such a nature, that when we have ascertained and fixed its limits, with all the caution and precision we can, it will yet be formidable, somewhat arbitrary and despotic — that is, after all our cares, we must leave a vast deal to the discretion and interpretation — to the wisdom, integrity, and politics of the judges — These men, such is the state even of the best laws, may do wrong, perhaps, in a thousand cases, sometimes with, and sometimes without design, yet it may be impracticable to convict them of misconduct.
These considerations shew, how cautious a free people ought to be in forming this, as well as the other branches of their government, especially when connected with other considerations equally deserving of notice and attention. When the legislature makes a bad law, or the first executive magistrate usurps upon the rights of the people, they discover the evil much sooner, than the abuses of power in the judicial department; the proceedings of which are far more intricate, complex, and out of their immediate view. A bad law immediately excites a general alarm; a bad judicial determination, though not less pernicious in its consequences, is immediately felt, probably, by a single individual only, and noticed only by his neighbours, and a few spectators in the court.
In this country, we have been always jealous of the legislature, and especially the executive; but not always of the judiciary: but very few men attentively consider the essential parts of it, and its proceedings, as they tend to support or to destroy free government: only a few professional men are in a situation properly to do this; and it is often alledged, that instances have not frequently occurred, in which they have been found very alert watchmen in the cause of liberty, or in the cause of democratic republics. Add to these considerations, that particular circumstances exist at this time to increase our inattention to limiting properly the judicial powers, we may fairly conclude, we are more in danger of sowing the seeds of arbitrary government in this department than in any other.
In the unsettled state of things in this country, for several years past, it has been thought, that our popular legislatures have, sometimes, departed from the line of strict justice, while the law courts have shewn a disposition more punctually to keep to it. We are not sufficiently attentive to the circumstances, that the measures of popular legislatures naturally settle down in time, and gradually approach a mild and just medium; while the rigid systems of the law courts naturally become more severe and arbitrary, if not carefully tempered and guarded by the constitution, and by laws, from time to time.
However, the solution to the present Constitution Crisis lies in precisely that authority, which the Anti-Federalist papers feared: We the People of the United States.
First, let ust remember that the People gave the Constitution its authority.
The Minority Faction of the Pennsylvania Convention admits this, on Dec. 18, 1787 a small tract on the nature of the authority in the Constitution, which clearly was one in which We the People gave existence to the State:
In short, consolidation pervades the whole constitution. It begins with an annunciation that such was the intention. The main pillars of the fabric correspond with it, and the concluding paragraph is a confirmation of it. The preamble begins with the words, “We the people of the United States,” which is the style of a compact between individuals entering into a state of society, and not that of a confederation of states. The other features of consolidation, we have before noticed.
And thus, as such, The People’s authority or standing to bring an action to have their grievances heard, for the purpose of remedying defects extends to everything under that Constitution. This is implicitly referred to by another author, Robert Yates, who took the name “Brutus”, in his 12th Letter, written on Feb. 7, 1788, where he affirms both their authority, and the extent of the government which they bring into being:
To discover the spirit of the constitution, it is of the first importance to attend to the principal ends and designs it has in view. These are expressed in the preamble, in the following words, viz. “We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution,” &c. If the end of the government is to be learned from these words, which are clearly designed to declare it, it is obvious it has in view every object which is embraced by any government. The preservation of internal peace — the due administration of justice — and to provide for the defence of the community, seems to include all the objects of government; but if they do not, they are certainly comprehended in the words, “to provide for the general welfare.” If it be further considered, that this constitution, if it is ratified, will not be a compact entered into by states, in their corporate capacities, but an agreement of the people of the United States, as one great body politic, no doubt can remain, but that the great end of the constitution, if it is to be collected from the preamble, in which its end is declared, is to constitute a government which is to extend to every case for which any government is instituted, whether external or internal. The courts, therefore, will establish this as a principle in expounding the constitution, and will give every part of it such an explanation, as will give latitude to every department under it, to take cognizance of every matter, not only that affects the general and national concerns of the union, but also of such as relate to the administration of private justice, and to regulating the internal and local affairs of the different parts.