Proposed Constitutional Amendment
Thomas Jefferson Amendment
The United States Supreme Court and lesser courts shall be without power to alter, expand or contract the plain meaning of the Constitution by giving the Court’s own “interpretation” to the Constitution. Henceforth the mandatory retirement age for all newly appointed Supreme Court Justices shall be age seventy (70), the same as the mandatory retirement age for all other Federal Court judges.
Note to Reader: Constitutional amendments have the best chance of passage if they are short and sweet. Hence, the Thomas Jefferson Amendment above is only two sentences long.
A great deal of thought, however, has gone into it, including the wisdom of great men of posterity such as Bishop Hoadly in his sermon before the king in 1717, Thomas Jefferson in the early 1800’s, Abraham Lincoln at the time of his first inaugural address and the preeminent legal scholar, the late Professor John W. Brabner-Smith, founder of the International School of Law in Washington, DC, in the present age. There follows a synopsis of the wisdom of these men.
Restoring the Vision of Our Forefathers
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
In 1803, Chief Judge John Marshall of the U.S. Supreme Court contrived for his court the 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 was a high school drop out and never attended college?” (It may be said in Marshall’s favor that he did not quit school because of a poor intellect but because he was needed to help raise his 14 younger brothers and sisters on the family farm.) At the age of 25, he studied law briefly at the College of William & Mary, which in those days did not require a high school or college diploma in order to take a few law courses. He was admitted to the Virginia bar as a lawyer. Pulling himself up by his own bootstraps, he lobbied for and received the powerful position of a Supreme Court appointment. Some would say he embodies the admonition of Alexander Pope: “A little learning is a dangerous thing. Drink deep or taste not the Pyerian spring.”
Following the 1803 Marbury v. Madison decision, which John Marshall authored, 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.”
PRESIDENT JEFFERSON saw where this unconstitutionally usurped power would lead when he stated:
The Constitution . . . is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please. It has long been my opinion, and I have never shrunk from its expression . . . that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; 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.
RESIDENT 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 . . .” Lincoln knew the Constitution, and as a lawyer himself he knew the importance placed by the framers of the Constitution on SELF government; not “COURT government.
The preeminent constitutional law scholar PROFESSOR JOHN W. BRABNER-SMITH (founder of the International School of Law in Washington, 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 SYSTEM OF JUDICIAL INTERPRETATION of the Constitution as the basis for determining our individual rights has, among others, the following fatally flawed characteristics:
- 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 “truths” 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 John W. 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 has, among others, the following characteristics:
- All power not expressly given to governmental representatives, and this includes the judiciary as well as the elected representatives, is retained by the people.
- The “truths” that man is created, that there is a Creator, and that all men are endowed by their Creator with individual inalienable rights are recognized as the foundation of our government and can be taught in the public school as such.
- The existence of a Creator who possesses the power to endow individuals with inalienable rights is acknowledged as a “presupposition” or as “self-evident truth” and not as a religious belief or a religious matter.
- Powers are retained by the people as distinguished from all powers being vested in the government.
- The “rights” vested in the individual cannot be taken away by amendments to the Constitution or by statutes or by the court.
- The government can recognize or establish certain moral principles – recognize that certain actions are “right” and others are “wrong” – without becoming involved, as a nation, with any religion or religious belief.
- The approach of the government will be to determine the proper restriction, limitation or suspension of the exercise of a right rather than approach the questions by an interpretation of some provision in the Constitution to see if such right exits.” . . . Professor John W. Brabner-Smith (founder of the International School of Law in Washington, DC, now the George Mason University Law School)
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.
In plain language at the very beginning of the Constitution, Article I, Section 1, we find these words:
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.
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.” (They, of course, are referring to authority which Thomas Jefferson pointedly stated was never intended for the court. It was nowhere provided for in the Constitution.) The court, in speaking of its own self-assumed authority, not only declares that few other courts in the world have this same authority but that “none have exercised it for as long or with as much influence.” Yes, they are correct. They have exercised quite a bit of “influence” over the lives of preborn children, casting aside God’s commandment, “Thou shalt not kill.” They have ignored the commandment and made it a constitutional right for a woman to break the commandment and kill her own child! They have also exercised a great deal of “influence” over many other things. If Thomas Jefferson were living, he seemingly would declare the court to be our modernday “KING GEORGE III” from whom we need to declare our independence.
It is time to call a halt!
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 requires Supreme Court judges to retire at age 70, the present age of mandatory retirement for all other Federal Court judges. This can only be changed by constitutional amendment because the Constitution provides that they shall serve for life otherwise. Of course, when the Constitution was written people weren’t living the length of years that some judges are living and continuing to serve on the Court today even into their 90’s. It is of note that the mandatory retirement age for all other Federal judges is set by law at age 70. This has proven to be the better part of wisdom, and the Supreme Court should be no exception.
The Constitution provides for amendments thereto as follows:
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 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…
Jefferson was vociferous and adamant in lambasting his distant cousin, John Marshall, for taking it upon himself to seize unconstitutional power for his court!
Lincoln properly and wisely called this a government “of, by and for the people.” Nowhere in his definition of our government is the word “court.” The court needs to be divested of its power and the power needs to be given back to the people. THE POWER OF THE PEOPLE IS IN THE CONSTITUTION — IT’S PLAIN, UNALTERED (BY THE COURT’S “INTERPRETATION”) WORDS! Taking away the court’s power to “interpret” the Constitution leaves the court and WE, THE PEOPLE with the plain, unaltered simple words of the Founder’s Document.
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.
The Thomas Jefferson Amendment (PDF 133KB)