Familia Americana: Undermining the Rule of Law (A Judiciary under Siege)
Article III of the United States Constitution establishes the federal judiciary as such: “The judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Constitution grants Congress the discretion to decide how to organize the Supreme Court – including the Court’s size – and makes known there can only be one Supreme Court in the land.
The Judiciary Act of 1789 created a Court with six justices and further established the lower federal court system. Since then, the number of justices on the Supreme Court has varied and grew to nine in 1837, ten in 1863, back down to nine in 1866, eight in 1868, and has remained at nine justices since 1869.
Why this fluctuation? One of the greatest flaws of human nature is man’s ever-increasing thirst for power. The Framers of the Constitution recognized this when they declared our independence from the British Crown, founded America as a constitutional Republic, and wrote the Constitution – the supreme law of the land.
By establishing the United States of America as a constitutional Republic, the Framers gifted this nation a model of government that is run for the people and by the people, with checks and balances as safeguards. It will remain a Republic so long as the People are at the helm, remain vigilant of the federal government’s power, control its overreach, and demand the checks and balances be honored and the Constitution followed. The People’s power lies in their 1) electoral capacity (which is why the Electoral College and elections process are under attack), 2) right to petition the legislative and executive branches through their representatives, and 3) challenge to the Court when legislative actions or executive mandates infringe on our freedoms (thus, the Supreme Court is under threat of expansion, impeachment, or outright elimination).
The Framers designed a system of checks and balances in anticipation of the destabilizing effects to the Republic by those seeking power rather than public service. Limits were placed on each branch of government to deter overreach, grant specific constitutional authority, and provide tools to check and balance each other.
It has worked this way so far –
The executive branch (President) can issue a veto of legislation if it considers the congressional act to be unconstitutional or contrary to policy positions.
The legislative branch (Congress) can then override a veto from the executive branch (meant to curb presidential power) with a two-thirds majority.
The judicial branch can (only) issue judicial reviews on the constitutionality of the judicial acts taken by the legislative and executive branches. It can neither author nor ratify laws; it cannot amend the Constitution. It cannot control its size. Furthermore, the branch has no enforcement authority or agent to ensure its rulings are carried out. Therein lies the limited power of the judicial branch of government.
Alexander Hamilton, in Federalist Paper #78, proclaimed the judicial branch to be the weakest of the three branches of government.
Legitimacy: Its power is ultimately dependent on the acquiescence of the other branches to operate within their constitutional confines (thus asserting the Court’s independence). To ensure the legitimacy of the Court, the elected class (both legislative and executive branches) must uphold their oath to treat the laws of the land as supreme, with respect and honor, and enforce them. The judicial branch can protect the Constitution insofar as the executive, legislative, and even state governments uphold its judicial reviews. It reinforces its legitimacy when it carries out these duties impartially.
Vulnerability: It is the only branch of government that does not need to bend to the whims of public opinion or polling, or take action according to the electoral cycle. As such, the judicial review powers granted to the Court remain vulnerable to political influence, coercion, and overreach by co-ordinate branches even with the checks and balances that are in place.
Fact – The Court’s inability to control its size is a weakness that has been exploited by the co-ordinate branches in the past and might be again in the near future. Each time a President and controlling political party have sought to expand the Court, it has been for the purpose of aligning it with the policy preferences of these respective branches. (The ever-growing thirst for power.)
Independence: For these reasons, it is necessary to protect the Court’s independence so the justices can perform their duties faithfully and the Court fulfill its purpose. It is in this spirit that Hamilton presented the need for permanency in office (tenure) for the members of the Supreme Court.
Liberty has nothing to fear if all three branches of government work independently and abide by the Constitution. Liberty has everything to fear if any of the three branches joins another and undermines the one branch whose responsibility it is to interpret and defend the supreme law of the land.
In May 2004, Hugo Chavez’s National Assembly passed a law, by a simple majority (simple democratic model of government), to expand their Supreme Court from twenty to thirty-two members! The law also granted the assembly the power to nullify existing justices’ appointments. Human Rights Watch condemned these actions. Essentially, Chavez’s party was able to purge and pack the courts, allowing him to rewrite the country’s constitution, rename the Republic, nationalize industry, destroy the economy, and starve the Venezuelan people without having broken any constitutional laws or checks from the citizens.
The United States of America remains a beacon of light and an emblem of hope for the people of the world today. In spite of the political and social wickedness we’re seeing across our nation, Americans –We the People – are the last great hope for billions around the world who are suffering under authoritarian and tyrannical rule from their governments and legislatures; and are unable to swing the pendulum in their favor because their model of government prevents the citizenry from being above the master – the state.
Since the onset of the COVID pandemic (PLANdemic, excuse me), governments around the world have further strengthened their accords and ties with global agencies, and have laid the framework for a global world view, a global (or One World) order that, inevitably, will be run by (you guessed it) a global elite class of officials with supreme authority and power.
No other citizenry in the world has the means (an armed populace), authority (constitutional protections and a Republic that honors it), resilience (unwavering people, proven to sacrifice themselves for freedom), and valor (that comes from knowing truth in our Creator and the clarity of what we’re fighting for – liberty, virtue, and a free world), to confront oppression by the state and prevent the misery that ensues.
We the People of the United States of America have a lot to be proud of and a lot of work to do. Our Republic is under constant attack for the purpose of destroying and remaking America in the image of a socialist utopia that does not exist, and ultimately, results in the very same master-slave relationship that socialists claim to solve. The “master” is always the state and the “slaves” are always the citizens.