THOMAS JEFFERSON:
HE KNEW WHAT HE WAS TALKING ABOUT!
By: Albert V. Burns
"It has long been my opinion. ..that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body-- for impeachment is scarcely a scarecrow-working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one.
"To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated." Â Â Â Â ---Thomas Jefferson, 1821
It is possible that the cause of this famous statement by Thomas Jefferson was a Supreme Court case, McCullough v. Maryland, which had been decided just two years earlier. In 1816, the Congress began its attack on the financial well-being of this nation when it established the second Bank of the United States. The following year, a branch of that bank was established in Baltimore. In 1818, the state of Maryland saw an opportunity and imposed a tax "on all banks or branches thereof, in the State of Maryland, not chartered by the legislature already." The bank refused to pay the tax and Maryland brought suit against McCullough the cashier of the Baltimore branch. The case went to the Supreme Court and Chief Justice John Marshall began the assault upon the Tenth Amendment of the Constitution. The effect of his words in that case have far outlasted the bank itself.
John Marshall was a member of the Federalist Party which was in favor of a strong national government. In his position as Chief Justice of the Supreme Court he began the process of weakening the chains of the Constitution which Jefferson has said should "bind men down from mischief."
In 1821, only 30 years after the establishment of the Court, Marshall declared: "Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which...excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th Amendment...omits the word "expressly" and declares only that the powers ‘not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people;’"
Note that in Marshall’s eyes, the failure to include the one word, EXPRESSLY, in the wording of the 10th Amendment defeats the whole purpose of the Amendment. Marshall then went on to explain, at length, that he felt the Constitution should NOT be rigidly adhered to since the Founders had, in his view, not enumerated "the means by which the powers it confers may be executed..." He had a great deal more to say in the process of damaging the concept of limited government. The revealing thing is that his attack was not central to the case.
Just five years later in the case of Gibbons v. Ogden, Marshall leveled another attack on the Tenth Amendment and the concept of limited government: "This instrument [the Constitution] contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, congress is authorized ‘to make all laws which shall be necessary and proper’ for the purpose. But this limitation on the MEANS to be used, is not extended to the POWERS which are conferred....We do not, therefore, think ourselves justified in adopting it." (Emphasis added)
With this statement, Marshall casually disposed of the spirit in which the Constitution was established and ordained by the Founders. The Founders, themselves, just a few decades previously, in the Federalist Papers, had made clear that their Constitution WAS to be construed strictly as it was written. What Marshall was saying was that Congress could do anything it wanted but was limited in the way it did things.
In Federalist Number 41, Madison explicitly pointed out that:
"It has been urged and echoed, that the power ‘to lay and collect taxes, duties, imposts, and excises to pay the debts, and to provide for the common defence and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defence and general welfare...
"But what color can the objection have, when a specification for the objects alluded to by these general terms immediately follows, and is not separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share of the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars."
That should clearly show that the expansion of federal powers begun by Marshall and continued ever since by others is clearly NOT in accord with the Constitution. By 1944, we had been led so far away from the constraints of the Constitution that Attorney General Walter Biddle expressed the official opinion of the Roosevelt administration that: "The government of the United States can do anything NOT SPECIFICALLY PROHIBITED BY THE CONSTITUTION!
This, of course, is a total reversal of the intent of the Tenth Amendment, but even back then, few Americans raised any objection whatsoever. Since the Constitution does not specifically prohibit it, the government may spy on its own people, may build a "shadow government" unknown to the general populace, may use trumped up, unsubstantiated charges to imprison citizens and hold them incommunicado without benefit of counsel, etc. What have we come to?
In Senate Document No. 92-82, The Constitution Of The United States: Analysis and Interpretation, published in 1973, pg. 1268, the statement is made: "Today it is apparent that the Tenth Amendment does not shield the States nor their political subdivisions from the impact of the authority affirmatively granted to the Federal Government." (See Maryland v. Wirtz, 392 U.S. 183 (1968). The Supreme Court had effectively nullified the Tenth Amendment.
While the Fourteenth Amendment was DECLARED to have been ratified on July 9, 1868, it never was actually LEGALLY ratified according to the terms of the Constitution. (See my article "The Infamous 14th Amendment" in the Burns Archive at www.EtherZone.com.) However, legally ratified or not, Supreme Courts have been using the Fourteenth Amendment to transfer more and more power away from the states and the people to the Federal Government, even "reading between the lines" of the 14th Amendment to find new governmental powers not previously existing.
Last, but by no means least, Supreme Courts have been attacking the Constitution by ignoring the actual words of Article 6, Paragraph 2 of the Constitution and interpreting those words in a manner contrary to the original intent of the Founders. As previously pointed out, in 1920, the Supreme Court held that a treaty could modify the Constitution, in that case, another attack on the Tenth Amendment. In 1942, the Supreme Court held that an Executive Agreement between the President, or his representative, could supercede the Constitution. (See my articles relative to the Bricker Amendment and "Treaties vs. The Constitution" in the Burns archive at www.EtherZone.com.)
This Supreme Court doctrine that treaties and/or Executive Agreements can supercede the Constitution, if allowed to stand, mean the demise of the freedom and rights guaranteed to us by the Founding Fathers via the Constitution. They did their utmost to give us the best government man had ever known but, being honorable men themselves, they could not have foreseen the venal politicians and actual traitors in the U.S. government of later days.
However, having thus indicted the members of Supreme Courts over the years, it must be recognized that those Justices could not have succeeded in their various attacks on the Constitution without the tacit consent and/or approval of the members of Congress. Those members have always had the power to curb the actions of the Supreme Court. (See Article 3, Section 2, Paragraph 2 where it states: "...the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, WITH SUCH EXCEPTIONS, AND UNDER SUCH REGULATIONS AS THE CONGRESS SHALL MAKE." (Emphasis added.) (See my article on this subject in the aforementioned archive.)
Now, we have indicted both the members of Supreme Courts over the years and the members of Congress over the years, but in the final analysis we must admit that the fault must lie with the American people. We have failed to study and understand the Constitution ourselves. We have failed to guarantee that knowledge of the history, meaning and importance of the Constitution be taught to our children. It is easy to point fingers at the government school system, but we, as citizens and parents, provide the buildings, the salaries of the teachers, and most importantly, the students. We should have been more watchful. Had we known the information ourselves, we could have taught it to our children in our homes. The vast majority of us did nothing!
The only thing which can save our nation and our freedom is to, somehow, get enough people away from being mesmerized by the boob tube and aware of the impending juggernaut of world government which is barreling down the road toawrd us.
The Supreme Courts and Congresses opened the doors to an imminent disaster. If a tragedy is to be avoided, it will HAVE to be stopped by the American people. There is no other power on earth which could possibly do the job!
NOTE: We do NOT need a new Constitution or any other form of government! We simply MUST insist that those we give government power to by electing them to office (at any level) live up to the oath of office each of them takes to support and defend the Constitution. If we see that any given official is violating that oath, he or she MUST be removed from office by voting them out, or in egregious cases, through a process of recall. I guarantee you that once three or four Congressmen are recalled by their constituents there will be a remarkable renaissance of interest, among the rest of the Congress critters, in voting in accordance with the dictates of the Constitution!
"Published originally at EtherZone.com : republication allowed with this notice and hyperlink intact."
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