Individual Liberty — Individual Responsibility 

A few more things

In my last post I outlined the major changes between the government that the founders intended and the one we have today. It was a long post. It also just barely managed to cover the ground that I intended it to cover. This post won't be nearly as long.

The founders worked hard to hammer out the compromises that went into our Constitution. Some of the prime movers wanted a strong federal government that would overshadow the states much as today's federal government does. They had to overcome strong opposition from a coalition of states that did not want their sovereignty reduced in any way, and they were only partially successful. Time, distance and stifling heat saw to it that from time to time the leaders of one faction or the other were absent. New coalitions were formed and broken. When they finally finished crafting the Constitution the hard work of ratifying it began.

Upon leaving the Constitutional Convention Benjamin Franklin was asked what sort of government had been given to the people. His reply was "A republic, if you can keep it." Keeping our republic is a challenge even today. The founders themselves didn't expect it to last more than a few decades. After all, the confederacy that preceded it didn't.

As I noted earlier, it didn't take too long for changes from the original design to creep in. Only a few years after the ratification of our Constitution power struggles between the Democratic-Republicans and the Federalists provided the opportunity for the Supreme Court to seize upon a new power "to construe the laws according to the spirit of the Constitution". This is, supposedly the final check in our system of checks and balances.

The writers of the Constitution had given the executive and legislative branches powers that would limit each other as well as the judiciary branch. The Constitution gave Congress the power to impeach and remove officials, including judges or the President himself. The President was given the veto power to restrain Congress and the authority to appoint members of the Supreme Court with the advice and consent of the Senate. In this intricate system, the role of the Supreme Court had not been defined. It therefore fell to a strong Chief Justice like Marshall to complete the triangular structure of checks and balances by establishing the principle of judicial review.

"It therefore fell to a strong Chief Justice… to complete the triangular structure of checks and balances"? Hardly. This was a plain, non constitutional usurpation of power. It was the fulfillment of the prophecy of "Brutus" in the opening sentence of Antifederalist number 78. 

The supreme court under this constitution would be exalted above all other power in the government, and subject to no control.

We didn't keep our republic, it was taken from us by Chief Justice John Marshal and his court. The one branch of the government that is not accountable to the people and which is meant to have no legislative power at all took advantage of a loophole left in the Constitution to take over all government throughout the nation. We get to retain the illusion that we live in a republic, but we really live under an oligarchy. For the most part we hold to the forms, we elect Senators and Representatives, we elect those who will elect our President and Vice President, and together they enact our laws — until the courts step in.

Our Constitution granted to the government very specific powers and responsibilities. For the most part the government exercises those powers and carries out its responsibilities, although there have been lapses. The Constitution was structured to restrict the power of our federal government as well.

In that, it has failed, simply by not going far enough. Where the least specific definition of the powers and limitations of one of the branches was given, we've seen the result. The hierarchy of powers envisioned by the founders (and yes, it was a hierarchy, and not three co-equal branches) has been turned upside down.

The Constitution defines three branches of government, the Legislative, the Executive, and the Judicial. That should be enough, or so you would think. It certainly would be enough if the government confined itself to the role envisioned for it by our founders.

Maybe next time I'll talk about the fourth branch of the federal government. I'll talk about the second unelected branch of government — the bureaucracy.

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