I was doing research for a post on the “Freedom of Religion” amendment in the Constitution and found myself getting sidetracked by writings much more interesting and influential than mine could ever make claim to be. One of the first to sidetrack me was Joesph Story. For those who are not familiar with him, The Supreme Court Historical Society gives this description:
On November 18, 1811, President James Madison nominated Story to the Supreme Court of the United States. The Senate confirmed the appointment on February 3, 1812. At the age of thirty-two, Story was the youngest person ever appointed to the Supreme Court. While on the Supreme Court, Story served as a delegate to the Massachusetts Constitutional Convention of 1820 and was a Professor of Law at Harvard, where he wrote a series of nine commentaries on the law, each of which was published in several editions. Story served on the Supreme Court for thirty-three years. He died on September 10, 1845, at the age of sixty-five.
This quote from him caught my attention:
“Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people in order to betray them.”- Joseph Story – Commentaries on the Constitution of the United States, 2d ed. (1851), vol. 2, chapter
Her Abstract: Brutus, one of the loose-knit group of Anti-Federalists who opposed the adoption of the Constitution, was convinced that the new government would prove to be a national, not a federal, government; that the several states would cease to exist as sovereign entities; and that the judiciary would be instrumental in causing that result. Joseph Story, a proponent of a strong judicial branch, believed that “the worst, that could happen from a wrong decision of the judicial department, would be, that it might require the interposition of congress, or, in the last resort, of the amendatory power of the states, to redress the grievance.” Judge Alice Batchelder examines several key areas and concludes that Brutus, regrettably, was right and Story was wrong..excerpt: In Essay XI, Brutus began his attack on the “nature and extent of the judicial power, proposed to be granted by this constitution,” warning:
“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.
…The judicial are not only to decide questions arising upon the meaning of the constitution in law but in equity. By this they are empowered to explain the constitution according to the reasoning spirit of it, without being confined to the words or letter…. 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 control their adjudications. From this court there is no appeal.
…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.”
Amazingly prescient almost prophetic. I think that this is where we are right now. This led me back to the “Freedom of Religion” clause in the 1st amendment to the Constitution. With the argument that the Obama justice department is making to the Supreme Court that the Defense of Marriage Act is unconstitutional based on fairness, that “violates the fundamental constitutional guarantee of equal protection.” The Hill.
Can you really legislate fairness? Is making millions accept and honor a lifestyle change such as marriage by homosexual adults, fair to those who believe that it is a sin? How do you weigh the factor of fairness? How do you justify a entitlement of fairness if in it’s enabling on a few, it restricts the rights outlined as from our creator in the 1st amendment? It seems that in recent years the courts in many cases have looked only to the most recent decisions and not bothered to take into consideration the original amendment and the consequences of their actions on it. As a result, it is almost to the point where it is irrelevant.If the Supreme Court decides in favor of Mr. Obama and his opinion of fairness, it will basically declare the 1st amendment null and void, because there will be nothing for Christians to stand upon if there beliefs differ from those who have decided that in the matter of society, fairness is much more important than God. Regardless, fairness is not what we will be judged upon when the final arbitrator makes His entrance.
But that led me back to Mr. Obama himself, and another interesting point from “Cato” also known as George Clinton, in the anti-federalist papers.On the establishment of the Constitution:
The New-York Journal, November 22, 1787
To the Citizens of the State of New York.
“In my last number I endeavored to prove that the language of the article relative to the establishment of the executive of this new government was vague and inexplicit, that the great powers of the President, connected with his duration in office would lead to oppression and ruin. That he would be governed by favorites and flatterers, or that a dangerous council would be collected from the great officers of state, — that the ten miles square, if the remarks of one of the wisest men, drawn from the experience of mankind, may be credited, would be the asylum of the base, idle, avaricious and ambitious, and that the court would possess a language and manners different from yours; that a vice president is as unnecessary, as he is dangerous in his influence — that the president cannot represent you because he is not of your own immediate choice, that if you adopt this government, you will incline to an arbitrary and odious aristocracy or monarchy the that the president possessed of the power, given him by this frame of government differs but very immaterially from the establishment of monarchy in Great Britain, and I warned you to beware of the fallacious resemblance that is held out to you by the advocates of this new system between it and your own state governments. “
Here again we have someone who seemed to see our future very clearly. His words, “That he would be governed by favorites and flatterers, or that a dangerous council would be collected from the great officers of state,” fit the Obama administration very well don’t you think? We have a man that is surrounded by his favorites and flatterers, especially those in the media that seem to fawn on every word and hide his lies and deceptions from the public in general. And his dangerous council of czars who promote tenets that are so opposite the principles that this country was founded upon as black from white.
When you read some of the anti-federalist papers, you realize that one of the worries would be the loss of the rights of the states. That the union would always be the controlling factor and that any power the states had would be consumed by the federal. And on top of that they worried that someone without the best interests of the country itself would wind up in control of the Presidency. Someone with an agenda that was subversive:
Samuel West (1730-1807) “From hence it follows that tyranny and arbitrary power are utterly inconsistent with and subversive of the very end and design of civil government, and directly contrary to natural law, which is the true foundation of civil government and all politic law. Consequently, the authority of a tyrant is of itself null and void; for as no man can have a right to act contrary to the law of nature, it is impossible that any individual, or even the greatest number of men, can confer a right upon another of which they themselves are not possessed; i.e., no body of men can justly and lawfully authorize any person to tyrannize over and enslave his fellow-creatures, or do anything contrary to equity and goodness. As magistrates have no authority but what they derive from the people, whenever they act contrary to the public good, and pursue measures destructive of the peace and safety of the community, they forfeit their right to govern the people. Civil rulers and magistrates are properly of human creation; they are set up by the people to be the guardians of their rights, and to secure their persons from being injured or oppressed,–the safety of the public being the supreme law of the state, by which the magistrates are to be governed, and which they are to consult upon all occasions. The modes of administration may be very different, and the forms of government may vary from each other in different ages and nations; but, under every form, the end of civil government is the same, and cannot vary: it is like the laws of the Medes and Persians–it altereth not.”
So, I leave you with a question, can our way of government continue when we seem to have reached an end of civil government with those in power having conferred upon themselves the power to make decisions that make our Constitution itself irrelevant. When our first and second amendments have no weight, and are basically over ridden by the fourteenth amendment. When fairness is the deciding factor, and yet that very fairness only applies to a selected few who happen to be in favor at any certain time!