Thomas Jefferson Amendment

When the United States Supreme Court and lesser courts are called upon to decide a constitutional question, the United States Constitution shall be the only constitution governing and concerning these United States and the words therein shall be given their plain meaning as defined in the dictionary in general accepted use contemporaneous with the passage of the Constitution or amendments thereto. The United States Supreme Court and lesser courts shall be without power to alter, expand or contract the plain meaning of the Constitution as originally worded by giving the court’s own interpretation to the Constitution.

The legislatures of the respective States of the Union shall be free to revive and again enforce such laws and regulations as they may choose heretofore found to be “unconstitutional” by the United States Supreme Court and lesser courts applying their own “interpretation” of the Constitution.

Will Rogers said it in 1933: “We are always saying, Let the law take its course.” But what we mean is “Let the law take our course.” A many a truth is said in jest. Will Rogers touched upon the truth then and the truth 75 years later in 2008 as we have witnessed the Supreme Court direct the law of the nation on a course they have desired. Will Rogers was only joking, but it is no joke when the Supreme Court continues to “interpret” the Constitution to suit itself.

President Bush has said that the Supreme Court needs to stop legislating. In making this statement, he is reaffirming Article I, Section 1 of the United States Constitution which grants Congress the exclusive sole power to LEGISLATE:

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.”

Article I, Section 1, United States Constitution

THIS AMENDMENT IS OFFERED TO STOP "JUDICIAL LEGISLATION."

In 1803, this one sole judge, then Chief Judge of the U.S. Supreme Court, John Marshall, ignoring the wisdom of James Madison, "Father of the Constitution" contrived for he and his court a power to “interpret” the Constitution in the case of Marbury v. Madison. Some may ask, “How did John Marshall have a right to do this, if what he did was nowhere provided for in the Constitution?” Others ask, “How did he get to be a judge in the first place if he never even finished high school or attended college, although he had taken a couple of courses at William & Mary and was allowed to practice law in Virginia before being appointed to the Supreme Court?”

Following the 1803 Marbury v. Madison, decision THOMAS JEFFERSON, then President of the United States, stated:

“It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions. It is one which would place us under the despotism of an OLIGARCHY.” -Thomas Jefferson

Jefferson was well read and was echoing the admonition of Bishop Hoadly:

“Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver to all intents and purposes, and not the person who first spoke or wrote them.” -Bishop Hoadly’s sermon preached before the king, March 31, 1717

President Jefferson saw where this unconstitutionally usurped power would lead when he stated:

President Abraham Lincoln added his wisdom at the time of his first inaugural address:

"If the policy of the government upon vital questions is to be irrevocably fixed by decisions of the supreme court . . . the PEOPLE will have ceased to be their own rulers . . ." -Abraham Lincoln

Lincoln knew the Constitution and, as a lawyer himself, he knew that the importance placed by the framers of the Constitution on SELF GOVERNMENT and not "court government" was affirmed by the fact that this was clearly set out in plain language at the very beginning of the Constitution, Article I, Section 1!

The preeminent constitutional law scholar Professor John W. Brabner-Smith (founder of the International School of Law inWashington, DC, now the George Mason University Law School) summed up the differences between the court’s own system of judicial interpretation versus the original system put in place by the framers of the Constitution as follows:

The debate among the Justices as to the approach to be used in interpreting the Constitution will continue – leaving our nation with the uncertainty, conflicting opinions and decisions based upon the personal values of the individual judges. Since there is no provision for the recognition of any “truth” or of any “principle” there can be no recognition of such a thing as “inalienable rights” in individuals. Since there are no “truth” or “principles” to be recognized then there is no basis for classifying anything as “right” or “wrong” – everything becomes relative. If by the term “ethics” we mean the establishment of a principle that is permanent then this system will not permit the establishment of an “ethic” but everything will fall under the general category of “situational ethics” where there is no right and no wrong but everything depends upon the facts of the situation. This system will ultimately lead to tyranny of one form or the other, that is, the tyranny of “majority rule” or the tyranny of certain person or persons – the ultimate elimination of individual rights. . . . -Professor JohnW. Brabner-Smith

Professor Brabner-Smith then contrasted the court’s own system above with that intended by our forefathers as follows:

The System Envisioned by our Forefathers did not Contemplate Judicial Legislation, nor did our forefathers contemplate that the judiciary would one day begin to look to foreign constitutions as governing authority for these United States. The Supreme Court and lesser courts are not intended to be legislative bodies. This proposed constitutional amendment embodies the wisdom of Thomas Jefferson and would divest the judiciary of "interpretative power" over the Constitution, ending its ill-gained power to LEGISLATE, thereby restoring the vision and original intent of our forefathers.

The first paragraph stops the court’s emerging practice of looking to foreign constitutions for precedent and governing authority for these United States. The latter part of the first paragraph divests the court of "interpretive" power used to mold and shape the Constitution to the court’s own wishes. The second paragraph makes the first paragraph retroactive.

The "red states" would be free to reactivate "pre-1973" laws protecting the inalienable rights of preborn children for example. Seemingly, even the "blue states" would want to reactivate their traditional laws of eminent domain that prevent private property from being taken and given to a big corporation that can pay more taxes. It all goes back to trusting the wisdom and will of the PEOPLE and not the court.

The Constitution provides for amendments thereto as follows:

Article V
United States Constitution

“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourth’s of the several States, or by the Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by Congress . . .”

The Supreme Court’s own web page states in pertinent part:

“Few other courts in the world have the same authority of constitutional INTERPRETATION and none have exercised it for as long or with as much influence.”

Jefferson objected strenuously to his distant cousin Judge John Marshall seizing this authority for the court.

Will Rogers also said in 1933:

“The short memories of American voters is what keeps our politicians in office.”

Judges are able to do things impossible to forget since they are appointed (not elected) and serve for life! We cannot vote Supreme Court judges out of office, but the beloved American cowboyWill Rogers would tell us we can "rope them in and corral them" with a constitutional amendment, placing them back within what was meant to be and what after the passage of the amendment would surely be a "constitutional fence."

-Respectfully submitted for the esteemed consideration of my countrymen.
R. Martin Palmer, Jr. Attorney at Law
Admitted to practice before the
U.S. Supreme Court since 1977.

SOME REFLECTIONS ON MARBURY AND JUDICIAL REVIEW IN A DEMOCRATIC SOCIETY

M. R. COHEN – THE FAITH OF A LIBERAL
1946 Henry Holt & Company
this chapter originally published in 1938

Possibly the clearest instance of the logical and historical absurdity of a decision declaring an act of Congress unconstitutional was the case of Marbury v. Madison, which lawyers have, for over a century, worshipped with blind piety. The section of the Judicature Act of 1789 which Marshall declared unconstitutional had been drawn up by Ellsworth, his predecessor as Chief Justice, and by others who a short time before had been the very members of the constitutional convention that had drafted its judicial provisions. It was signed by George Washington who had presided over the deliberations of that Convention. Fourteen years later, John Marshall by implication accused his predecessor on the bench, the members of Congress such as James Madison, the Father of the Constitution, and President Washington, of either not understanding the Constitution (which some of them had drawn up), or else willfully disregarding it. It should certainly require a god deal of evidence to prove such a contention. If, however, we examine the exact wording of the Constitution, we find that Marshall’s contention is based upon an interpretation which is logically quite unnecessary, and which follows only if we allow him to interpolate a word which the Constitution does not contain. Marshall argues that when the Constitution (in Art. III, Sec. 2) says that the Supreme Court shall have appellate jurisdiction, this means that it shall have appellate jurisdiction only, and hence that Congress cannot add original jurisdiction in certain mandamus proceedings. His assumption that this is the only possible interpretation is demonstrably false. The granting of the appellate power by the Constitution certainly can mean that Congress may not take it away. It does not necessarily exclude the possibility of an addition. Indeed, as Professor [Ernst] Freund has shown, the principle of Marbury v. Madison has been disregarded by the Supreme Court itself in the cognate case of foreign consuls in which the grant of original jurisdiction to the court did not prevent it from accepting also appellate jurisdiction. To a secular historian, it is obvious that John Marshall was motivated by the fear of impeachment if he granted the mandamus or dared to declare the Republican Judiciary Repeal Act of 1802 unconstitutional. Having thus refused to aid his fellow Federalists ousted from offices created for them by a “lame duck” congress, he resorted to a line of sophistical dicta to get even with his political enemy, as indeed he did also in the Aaron Burr case. In his letter to his colleague Chase, Marshall offered to abandon judicial supremacy in the interpretation of the Constitution in return for security against impeachment. Yet these obvious facts are ignored and Marshall has become a supposed model of rigorously logical thought to what is regarded as a learned profession. * * *

A few careless dicta repeated by Hobart and Holt cannot establish a rule of law. There is certainly not a single authenticated case of an English judge declaring an act of Parliament as void as contrary to Magna Charta or to any natural right; nor for that matter is there, so far as I know, any authenticated case of any colonial judge doing this to an act of a colonial legislature.

The Power of Judicial Review

Did the people who adopted the federal constitution definitely intend that the courts should have the power to void as unconstitutional not only acts of state legislatures but also acts of Congress approved by the President? The arguments for the affirmative are (1) that it is expressly granted in the Constitution and (2) that it was generally understood that the courts exercise that power.

(1) The first argument seems to me altogether devoid of any merit. The Constitution does say that the laws and treaties of the United States, as the supreme law of the land, shall be so recognized in the state courts. It does not say that when judges give a different interpretation of the Constitution from that which the Congress and the Executive maintain, the latter are bound to yield to the former. John Marshall’s argument from the fact that the judges take an oath to enforce the Constitution can readily be turned against him. For the members of Congress and the President also take an oath and they do not, when they swear to obey the Constitution, add any provision limiting it to the way interpreted by the courts. Oaths are presumably instituted to bind the conscience of the individual who swears not to bind him to the dictates of somebody else’s conscience. Of course, there would be no government if three independent organs each followed a different interpretation of the supreme law of the land. But that is a consequence of the absurd theory of a complete separation of powers. The custom – and that is all that it can be properly called – according to which Congress and the President tacitly agree to abide by the interpretation of the Court, is a practical accommodation or adjustment conditioned by historic circumstances and not at all a necessary consequence of the wording of the Constitution.

The basic assumption underlying Marshall’s and the usual argument on this point is that the interpretation of law is exclusively a judicial function and therefore the final decision belongs to the Court. But this is entirely baseless. Congress in legislating and the President in executing a law must interpret the relevant provisions of the Constitution; and in the Oregon Telephone case ¹ the Supreme Court has admitted that the interpretation of at least one provision of the United States Constitution, namely the meaning “republican form of government,” must be left to Congress and the Executive, even though every part of the Constitution is the law of the land. Nor can there by any historical support found for the view that at the end of the Eighteenth Century it was anywhere a generally recognized doctrine that the interpretation of laws was exclusively a judicial function. Blackstone, who was regarded as an unquestionable legal authority when our Constitution was framed, not only explicitly recognized the right of Parliament to interpret the laws, but clearly indicated its supremacy. There is undoubtedly an ancient and widespread view that Parliament could not legislate against natural or moral law and the colonists based their Declaration of Independence on it. But nowhere, except in the United States after John Marshall, was the doctrine established that judges were the only safe guardians of natural or moral law, and even with us the term “natural rights” was abandoned, and the same result obtained by stretching such terms as “due process”, “property”, “liberty”, and the implied limitations on “free” government.

(2) I do not wish to deny that there were some people who previous to the adoption of the Constitution did suppose that the courts would have the power to declare acts of Congress unconstitutional. The later papers of the Federalist say so explicitly. But history shows that this was by no means generally understood or taken for granted, and the extent of this power was certainly not indicated with any clarity. Madison and even Marshall made contradictory statements on this point. * * *

It might be well to suggest that in 1789 the courts were not considered generally as important as they are today. This is seen in the action of John Jay in resigning as Chief Justice. The question whether the courts could declare laws of Congress unconstitutional seemed then as remote and academic as does to the ordinary citizen today the question as to whether the courts can declare a treaty of the United States unconstitutional. Doubtless most lawyers, moved by the force of analogy, will answer this is the affirmative. But we do not see organizations formed to protect our liberties and our lives by strengthening the prestige of the courts against the treaty-making powers of the President and the Senate.

It is hardly necessary to answer Marshall’s argument that the judicial veto is an inevitable consequence of our Constitution being a written one. There are plenty of written constitutions where this power does not exist. (It did not exist in the French Constitution written before Marshal made this contention.) Nor is it necessary to consider in detail the argument that this power is necessary for a federal system. The Swiss constitution is a perfect example of a federal system without the judiciary having such power. The late Justice Holmes said, “I do not think the United States would come to an end if we lost our power to declare an of Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states.”

I see no force in this argument. It assumes that the issues on which the courts declare state acts unconstitutional are purely legal and can therefore be settled only by a court of law. That this is actually not the case is most convincingly indicated by the comment of Justice Holmes himself: “As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights [constitutional rights of the states] if they happen to strike a majority of this court as for any reason undesirable.”² Actually, our courts have, by their decisions, largely destroyed the virtue of a federal system, namely, the power of the states to experiment in the field of social legislation. * * *

I do not wish to discuss here the advantage of controlling the will of a democratic majority by the judgment of a few elderly gentlemen who are removed from popular clamor. But it is curious to note that it is those Americans who are at heart distrustful of democracy who speak of the courts as standing between us and dictatorship and yet their arguments are precisely those which the adherents of Hitler and Mussolini use against the frailty of democratically representative or elective government.* * If * * * there are any principles of political science which enlightened experience makes clear, they are (1) that the worst form of government is that which separates power from responsibility and (2) that the weakest government is that which has relatively little access to the sources of information. And does not the fiction that the courts only follow the words of the Constitution in fact relieve them of the responsibility for the fatal results of their decisions? And is it not also true that this fiction that the courts decide only questions of law prevent us from organizing the courts so that they could have the opportunity of making adequate investigation into the actual facts on which they have to pass? Do we want our judges to be not only irresponsible to any earthly power but also independent of adequate knowledge of the social consequences of their decisions?

¹ Pacific States Tel. & Telegraph Co. v. Oregon, 223 U.S. 118,56 L.Ed. 377, 32 S.Ct. 224 (1912).

² Holmes, J., dissenting in Baldwin v. Missouri, 281 U.S. 586, 74 L.Ed. 1056, 50 S. Ct. 436 (1930).