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Responsibility #16
(written prior to July 1992)
To the People of the United States of America:
Publius (Alexander Hamilton) in Federalist No.78, sought to justify the provisions of the Constitution concerning the federal courts. "The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government." "And [lifetime tenure] is the best expedient which can be devised in any government to secure a STEADY, UPRIGHT, and IMPARTIAL administration of the laws."
" .... in a government in which [the different departments of power] are separated from each other, the judiciary, from the nature of its functions, will always be the LEAST DANGEROUS to the political rights of the Constitution; because it will be least in a capacity to annoy them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the DUTIES and RIGHTS of every citizen are to be REGULATED. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the STRENGTH or of the WEALTH of the society; and can take no ACTIVE RESOLUTION whatever. It may truly be said to have neither FORCE NOR WILL, but merely JUDGMENT; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."
"[This simple view of the matter] proves that though individual oppression may now and then proceed from the courts of justice, the GENERAL LIBERTY of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that 'there is no liberty, if the power of judging be not separated from the legislative and executive powers.'"
In its Dred Scott decision in 1857 and, more particularly in its activism in the twentieth century, the Supreme Court has caused the Judiciary to become the MOST DANGEROUS branch of the federal government. It has overstepped its roles and ventured into the legislative and executive arenas. Instead of keeping their sentinels alert and protecting their turfs, the Congress and the Presidency have neglected their checks and balances responsibilities, in order to maintain the solidity of the political coalitions, which were deemed to be required to gain or to keep in power the Democratic or Republican party (or the liberal or conservative persuasions thereof).
In contrast to the expectations of Publius, lifetime tenure of judges has not secured "steady, upright, and impartial administration of the laws." The Supreme Court has prescribed the rules for and the existence of certain rights, when that role should have been reserved for the Congress, and the States, acting for the people.
But neither the Congress (rightfully) nor the Judiciary (wrongfully) set forth the duties (responsibilities) associated with, or prescribed the rules for the regulation of, these new found rights.
Although it has avoided its responsibility, to judge the sword (war powers) controversy between the Congress and the Presidency (involving possibly hundreds of thousands of lives), the Supreme Court bears the responsibility for having released the knife to put to death millions of developing human beings. In its impatience with the States, it has irresponsibly and illicitly commanded power of the (States') purses.
Directives of the federal courts have affected the strength and the wealth of society. The general liberty of the people has not only been endangered, but direly compromised, by the cumulative effects of oppressive results of Supreme Court findings.
In forthcoming essays, we will examine problems and propose corrective actions in the following subjects, which sorely affect the wholeness of the fabric of our nation. Many of these problems are a result of, or have been exacerbated by, Supreme Court decisions.
Abortion
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Freedoms
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Principles
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Euthanasia
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Speech
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Taxes
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Suicide
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Press
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Appropriations
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War Deaths
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Entertainment
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Religion
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Property
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Bus. Direction
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Shareholders
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Health Care
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Regulation
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Employees
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Deregulation
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Lenders
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Health Hazards
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Oversight
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Tobacco
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Education
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Drugs
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Responsibilities
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Discipline
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Alcohol
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Loans
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Guns
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School Busing
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Cars
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Employee Benefits
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Gangs
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States
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Crime
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We the People
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Family
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Copulative Act
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Immorality
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Supreme Court
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Divorce
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Privacies
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Ultimate Arbiter
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Children Vote
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Veto Over
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Litigation
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No. of Justices
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Fed. Obligations
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Expanded Roles
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Banks, S&Ls
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National Debt
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Correct Mistakes
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Pension Plans
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Deficit
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Social Security
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Unity
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Gov. Spon. Ent.
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Poverty
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Interest Rates
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Wealth
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As we look at our nation's problems, it would appear that our Congress, our Presidents, and our Judiciary frequently (if not constantly) forget why WE THE PEOPLE did ordain and establish our Constitution. Lest we forget it is: (1) to build and maintain great unity among our citizens; (2) to "establish justice"; (3) to "insure domestic tranquility"; (4) to "provide for the common [domestic as well as foreign] defence"; (5) to "promote the GENERAL welfare"; and (6) to "secure the blessings of liberty [not only] to ourselves [but also] to our posterity". When our elected and appointed officials (or We the People in our selfish pursuits) interpret, expand, or administer our Constitution and its amendments in such ways as to inhibit or preclude those ends expressed in the preamble, then we are in error.
We can minimize or avoid such errors in the future, by adopting the measures proposed in previous Responsibility papers, and in those yet to come. As for our last bastion of justice, we must do everything that can be done to depoliticalize the federal courts. Some writers take the position that the Supreme Court is a political institution that cannot be made void of politics. Indeed to paraphrase an old cliche: You can take a man out of politics, but you can't (totally) take politics out of the man.
So "O'er the ramparts" We the People must watch to keep our flag flying by seeing that the checks and balances are respected. The States (in the name of the people) can bear a hand (perhaps the heaviest hand) in seeing that this is done. More on this later.
In the meantime we must begin to right previous wrongs caused by this political malady. It should be a major, if not the major, consideration in the pressures that We the People bring to bear on the new 1993 President and Congress.
Publius IV
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