Tyrants in Black Robes: How the Federal Courts Destroyed Our Republic

Copyright © 2015 by Boyd Hartman.

ISBN:      Softcover      978-1-5035-5216-6

               eBook          978-1-5035-5215-9

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Rev. date: 03/30/2016

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Contents

Foreword

Preface

Lest we Forget

The Invidious Institution

The Perils of Democracy

The Department of Education

The Price of Compasion Legalizing Plunder

Crony Capatalism and Corporate Welfare

Damn the Law-Full Speed Ahead

The Bill of Rights (and Wrongs)

Marbury v. Madison

The Fourteenth Amendment

The Struggle for Freedom

Moral Relativism and the Courts

The War on Religion

Federal Supremecy

Authoritarianism Under the First Amendment

On the Pathway to Social Justice

The Moral Law

The Rising Rebellion

It's the Right Thing to Do

Government of The Minority

A Foreign Nation

The Supremacy Clause, The Necessary and

Proper Clause and the Take Care Clause

A Nation Without a God

Stop This Damn Train, Let's Get Off!

Where Do We Go From Here?

To my son Kevin, Ever my pride and my sorrow.

Foreword

T he Federal Courts were, as stated by Hamilton, intended to be the least intrusive of the three branches of government; that is because the federal courts were neither intended to make laws nor were they intended to enforce or to execute those laws. Each of those functions was reserved for the other two branches of government, branches that were representative of the people's will. The federal courts are not representative organs of government, the judges are appointed and once appointed and confirmed are independent of and immune from the popular will. Unlike the executive and legislative branches of government, their tenure is for life and they need never (except for impeachable offences) concern themselves with the consequences of the ballot box nor do they need public conformation of their official conduct. Their function is to try all cases in law or equity that affect the interests of the United States arising under the Constitution or the acts of Congress. They are essentially arbitrators who are assumed to independently and without bias weigh the facts presented before them and render decisions that become the law of the case. These judges bear a tremendous weight of responsibility, not only because of their case by case determination, but because they are called upon to conform their determinations to the rule of law, giving to each litigant the assurance of equal treatment under the law. Federal Judges are also called upon at times to determine the constitutionality of the laws enacted by Congress.

The Constitution denies to Congress the right to create titles of nobility or to allow any citizen the right to a foreign title of nobility. Yet, perhaps to gain the respect due their calling, judges, unlike any other office holders, are permitted to adorn themselves with black robes and conduct their trials in court houses of stately grandeur. These judges are indeed of a different pattern than other public servants. These judges are looked upon in virtual reverence and their judgments are added to those great volumes of decisions that make up our legal if not moral heritage. But what would be the consequences to our ordered society if judges found not the constraints of an ordered rule of law, but found instead that they had the ability to and passion to formulate the law without reference to peoples will? Such jurists could with such power become tyrants of an entirely different order.

For the last eighty years, ever since the New Deal days of Franklin Roosevelt, the federal courts have become more and more intrusive in the formulation of our moral and social order. Some would herald this circumstance as progress believing that our government and our laws should be ever evolving to conform to the exigencies and circumstances that confront an evolving society. We ask here the question of whether this concept is constitutionally permissible and trace the justifications or lack thereof that underlies the growing trend of judicial activism. We also ask the question: has our court system, intended to be independent, become instead a part of the growing political order that functions not by the rule of law, but by the caprice of subjective determinations and individual preferences. We concern ourselves also with the effect that such a trend has had on our national culture and our moral standards.

Preface

By the rude bridge that arched the flood,

Their flag to April's breeze unfurled,

Here once the embattled farmers stood,

And fired the shot heard round the world.¹

T hey wore not uniform nor emblems, they stood not in ranks nor lines as skirmishers, for they were not soldiers, they were but humble patriots who on that chill day challenged the world's greatest legions, legions that had conquered much of the known world. What one may asks drove these simple farmers from hearth to heather to face the Royal Army come from distant lands to suppress their rebellion. These patriots were informed that this army of suppression was headed to Concord and the armory where their arms were stored. Once disarmed they would need to submit to the tyranny of King George and pay to him the homage that free men must resist. But for men to be free in a world where despots reign, he needs the means to resist; he needs not alone the courage that free men command he needs also the means to defend what is his due. So it came to pass that when wise men gathered to craft the charter that would enshrine the freedoms won, there would be a provision in that instrument assuring to the patriot his right to retain those arms that made him free. Indeed, each article and section of that charter would assure to him the freedoms that he had won, the freedoms that would be his legacy to those yet to come.

Lest we Forget

W hen ask what form of government the framers crafted at the Constitutional Convention, Ben Franklin is reported to have said A Republic if you can Keep it. The comment expresses some reservation on Ben's part as to the willingness of the populace to commit to and to preserve the structure of a republican government. But why should Ben harbor such reservations? The Constitution presented to the people for ratification was a remarkable accomplishment and presented to the world an entirely unique document that was founded on the principles of a limited government not only in the context of limiting governmental power, but it also limited the power of the populace. We are all familiar with the system of checks and balances and the separation of powers which was intended to prevent the concentration of power in any one person, party or organization. The functions of the Executive, Legislative and Judicial branches were enumerated because the framers believed that the concentration of all of these powers in one branch or in one person would ultimately lead to despotism. Defining the duties of each branch was intended to exclude the enumerated powers to the other.

The framers were also aware that despotism can arise not only in the institutions of government, but can also exist when there is no limitation on the powers of the majority of the voting population. The framers deliberated extensively on devising a system where the minority's rights of participation in the deliberative process would be protected from the overburdening passions of the majority. To accomplish this, they provided for a limited franchise where the populace would elect by popular vote only the members of the peoples house, the House of Representatives. The Senators on the other hand would be elected not by the people directly but the States Legislatures thus assuring to the nation a republican government. The Chief Executive would be selected not by the people's vote for a specific candidate; the voters would vote for Electors. The Electors would then be assembled in the Electoral College and select the President and the Vice President. This somewhat cumbersome selection process was designed not to enhance a democratic process, but was deliberately designed to prevent the establishment of an egalitarian true democracy. Like the separation of powers in the national government, the electoral design described was intended to avoid the concentration of political power by dividing the public franchise between the people electing directly for only one branch of government and voting indirectly for the Senate and the Executive.

One might wonder why the founding fathers had an aversion toward democracy and why they specifically crafted a document which through republican principles restricted the right of the people from voting directly for all of their public officers. The Federalist Papers are replete with the founders concerns that there should be no concentration of power in any one office or in any one group of ideologues. Such a power concentration they were certain would lead to the tyranny of the majority over the minority or the despotism that would result when political power would be concentrated in an individual officer holder. Thus we have the quote from the great populist Thomas Jefferson: A democracy is nothing more than mob rule, where 51% of the people may take away the rights of the other 49%. He also is quoted as having said: The democracy will cease to exist when you take away from those who are willing to work and give to those who would not.

James Madison put it more cryptically when he observed: Democracy was the right of the people to choose their own tyrant. Alexander Hamilton, in the Federalist Papers stated his opinion more passionately:

We are a Republican Government, (R)eal liberty is never found in despotism or in the extremes of democracy . . . it has been observed that a pure democracy if it were practicable would be the most perfect government. Experience has proved that no position is more false then this. The ancient democracies in which the people themselves deliberated never possessed one good feature of government. Their very character was tyranny; their figure deformity.

In a similar vein John Adams stated: That the desires of the majority of the people are often for injustice and inhumanity against the minority, is demonstrated by every page of the history of the world. So we can see that our original Constitution was very specifically crafted to assure to the people a limited republican government. The limitation intended was assured through the division of power among the branches of government and the limitations and restrictions placed on the people's voting privileges. One of the justifications for the restrictions placed on the popular franchise to be inferred from the above quotes is the belief on the part of our founders that governing a nation should be the province of the well informed members of the populace who have experience in the management of the nation's affairs. The populace at large is burdened with their own self interests and will, if given the popular franchise, vote according to those self interests and will by nature form coalitions motivated by mutual self interest. This of course will lead to the tyranny of the majority that was of great concern to our founders. To put it in another context, the founders believed that an empowered majority would place their own prejudices ahead of the welfare of all.

In practice, the voting privileges of the populace were even further restricted as women and blacks were denied the vote and most states limited the voting populace to white male property owners. There existed some debatable justification in the early days of the Republic for these restrictions. However, these restrictions, more than the limiting provisions of the Constitution would be the source of a growing demand for a more and more democracy and would give vent to the rising resentment toward white male privilege which in turn would fuel the rising tide of progressivism.

Our Constitution is now over two hundred years old. Few present day scholars refer to our form of government as a republic as it was intended to be. On the other hand there is a general acceptance of the assertion that America is a democracy. Such reference is common in text books, the media and indeed in the public discourse. Now this would all be well and good if there had ever been a further constitutional convention called to modify or to drafted the documents that would establish a democracy. Yet, it cannot be argued that our nation has been transformed from a republican government to a democracy and that this transformation was accomplished as was our original founding out of a growing desire for liberty and equality.

The long struggle for that more perfect union one would expect, would be an objective that all could embrace. On the contrary it has created a growing division that is driving a wedge between the two ideological political factions; liberals and conservatives. From a historical perspective, it is clear that the contest has been overbalanced in favor of the liberal-progressives. This overbalancing has created a growing backlash of resentment among conservatives and has fueled in conservatives their demand for a return to our once traditional