The Wide Awakes » Activist Judges Invalidate Alexander Hamilton’s Federalist Paper No.81

10/8/2005

Activist Judges Invalidate Alexander Hamilton’s Federalist Paper No.81

After reading Jay’s post at Stop the ACLU about a federal judge ruling the Mt Soledad Cross unconstitutional despite the will of the people stating that it should stay, even “changing the rules midgame” in order to thwart the will of the people, I began to scratch my head. Something just doesn’t seem right about the ability of appointed judges to wield so much power. They were once thought to be the weakest of the three branches. That is no more.. The judiciary has gone from interpreting the law and become defacto law makers. Alexander Hamilton wrote about this in the Federalist Paper No. 81 :

The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body.

The arguments, or rather suggestions, upon which this charge is founded, are to this effect: “The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judical power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.” This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.

Hamilton attempts to refute this argument:

In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.

I agree with Hamilton. The Constitution should be the final say and any other laws that contradict it should give way. But what happens when the judges decide to…. reinterpret a “living, breathing” document? What you have is the judiciary in this country is being used to thwart the will of the people. Courts are creating new laws, claiming for instance that a cross used in a WWI memorial is unconstitutional. Separation of Church and State? No where written in the Constitution. What is written:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

Congress shall make no law respecting an ESTABLISHMENT of religion, or PROHIBITING the free exercise thereof. What has happened in this country is that the non-religious left are eliminating any references to Christianity in the public forum. They can’t do it through their elected officials nor through petitions. Their only hope lies in the judiciary that with but a wave of their hand put forth a decree. And how exactly a cross on a hill has anything to do with establishing a national religion I do not know. For that was the intent of Thomas Jefferson’s “seperation of church and state” comment that the zealous athiests have wrapped their hope in.

Let me finish with this quote from James Madison:

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.
— James Madison

So much for the Founding Father’s believing that the Constitution of the United States is a “living, breathing” document.

Cross-posted @ Parrot Check.

Said Duncan Avatar @ 3:00 pm | Permalink

9 Comments »

[…] tution of the United States is a “living, breathing” document. Cross-posted @ The Wide Awakes.

[…]

Pingback by Parrot Check » Blog Archive » Activist Judges Invalidate Alexander Hamilton’s Federalist Paper No.81 — 10/8/2005 @ 3:28 pm

Of course, if they are “activist” in reviewing laws that go with YOUR ideology, that’s ok, isn’t it? So if you cons get to appoint a judge that decides cases in YOUR favor, they aren’t “activists” at all, are they? Of course not. If Harriet overturns Roe v Wade, she isn’t “making law” is she? If she decides that all schools must have a crucifix on the wall, she isn’t “activist”.

Comment by Daedalus — 10/8/2005 @ 4:04 pm

Of course, if they are “activist” in reviewing laws that go with YOUR ideology, that’s ok, isn’t it?

Actually, I guess that you did not read my post. If it goes against the Constitution, regardless of conservative/liberal ideology, then it is wrong. But liberals can’t change the Constitution the way it was meant to be changed, through the amendment process. Just too much work to do that. Slavery was abolished through the amendment process. Women’s right to vote through the amenndment process. THat wouldn’t happen today. Some activist judge would “reinterpret” some part of the Constitution to fit what they wanted to change. But I don’t expect you to understand that….

Comment by Duncan Avatar — 10/8/2005 @ 6:15 pm

That’s right, Duncan, I don’t think this twirp understands what is meant by “legislating from the bench”. Legislating from the bench is a judge taking the law into his own hands, dismissing the will of the people, and ruling against it. The whole idea of the judicial branch is to interpret laws, not invent new ones; and certainly not deem that old ones are no longer relevant.

That’s the whole purpose of the legislative branch. I really wonder what kind of government classes people are taking when they don’t understand the concept of the three branches of government and the purposes of the said branches. The three branches, if they are operating properly, provide the checks and balances in the system so no one branch ends up a rogue. Right now, the judicial branch is a rogue branch of government that quickly needs to be reigned in…but then…it’s the only area the liberals have left to change things; to legislate through the courts.

They really are having a tough time of it.

Comment by Cao — 10/8/2005 @ 6:18 pm

But you see Daedalus, that’s where you lefties get so screwed up. The idea is that those holy ones on the bench aren’t there to decide that all schools must or must not have anything, that’s not their job. Remember who’s job it is to make laws?

So, YES, if she decides that all schools must have a crucifix on the wall, she WOULD be activist and SHOULD NOT be there.

Comment by Marv — 10/8/2005 @ 6:54 pm

Nope,nope,nope… I did read your post, and despite what you think, it Was slanted towards the right. I don’t believe for a second that the judiciary should be “making laws.” Sorry if I implied otherwise. The thing is that SCOTUS (how fortunate they gave us a great acronym) If it seemed I was implying otherwise, I apologize. I agree with you in that the Court is the weakest branch. But, our leg. and exec. branches have abused their power (both parties) to the point where the Court has become the last resort, and I think, as a result, is ruling on cases (such as the em. domain) that should have never come to court.

Thanks for reassuring me that you are not as extreme as some say you are. We all want the best for our country, even if our ideas for best are differnt.

My main point is that I think, and I may be wrong, that Miers or Roberts were chosen to overrule Roe v Wade rather than for their good judgment. Believe it or not, I am not opposed to the right. I, like you, just want what is fair and best for the country.

Our whole political system needs to revert back to the basics. It’s a shame we’ve pitted ourselves against each other in the name of some anti-American ideology. I’d like to belive that American ideals are all the same. I mean, could you even imagine being born in another country?

We need to stop demonizing each other and find something to agree on. And I, for one, agree with your post and apologize for trying to provoke you into an argument. I just needed to know if you were just.

Cheers… Dems and Reps can live together peacefully, and it’s really time that we stop all of this nonsensical rhetoric, don’t you think?

Comment by Daedalus — 10/8/2005 @ 8:25 pm

p.s. Although I don’t comment on your blog, I often read it. I’m just trying to find some common ground.

And also, I hope you are not a Yankees or Braves fan, because blaaaaaaaah!

Cheers. Seriously.

Comment by Daedalus — 10/8/2005 @ 8:27 pm

p.p.s. i just read my post and realized that i didn’t finish a sentence. “he thing is that SCOTUS (how fortunate they gave us a great acronym)” I meant “At least SCOTUS gave us a great acronym” as an attempt at lightening up my post. I know that some rightwing sites would call me “stupid” for that, so I hope you realize that typos are just a part of the blogosphere. (Shame on me- I’m a professional editor!)

Comment by Daedalus — 10/8/2005 @ 8:37 pm

Daedalus … I think Roberts made it clear that he believes Roe to be wrongly decided because of bad reasoning that leans on the 9th & 10th Amendments. Roberts hinted that he would look in the Liberty Clause to find the “right of privacy,” if it exists anywhere then that’s where to look. Now, whether he ultimately finds it there we’ll have to wait and see, but it sure sounded to me that he’d found his out. Even though I’m against abortion, I would be whole lot happier to have a decision upholding the practice if that decision were based on something other than a manufactured phantom right. As a woman and in very simplistic terms, if my body is so private that I have the right to control the life or death of the baby inside it, then I sure as heck should have the right to sell it to the highest bidder. I don’t think the courts would look too kindly to a right of privacy defense of prostitutes. The point is that conservatives and liberals alike think the Miers appointment is replacing the O’Connor swing vote. I don’t think so. I think her vote has been replaced with Roberts. Miers, on the otherhand, is most like solidly in the overturn Roe camp. The Mt. Soledad issue is nothing more than a few atheists trying to get something they know would never come to them except through some crazy judge. The Soledad Cross is a landmark in San Diego that has long lost any religious significance. It marks a memorial. What’s next? Removing all the crosses and Stars of David from graves in National Cemeteries?

Comment by Squiggler — 10/9/2005 @ 2:11 am

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