The experience of humanity, as well as the history of civil administration, demonstrates that checks on government, unless reinforced with appropriate and independent power, prove to be nothing more than symbolic, and are, in practice, inoperative.  All too often in our own nation's history, the Constitution has only appeared to be a restraint on the central government, when in fact, it has been none at all.  On this, I would say, constitutions are not so necessary to regulate the administration of good leaders, as to restrain that of the bad ones.

A constitution is the fundamental law of the nation, and must be regarded by the judges as such.  In the previous two numbers of these papers, I have embarked on an examination of the many problems associated with the judicial branch of the United States, as well as the improper organization of the central government that, in fact, promotes such problems.  From this analysis, it is easy to see that it requires an exceptional amount of fortitude in the judges to exercise their sole duty as ardent defenders of the Constitution; and to avoid expanding federal power through what is now commonly referred to as legislating from the bench.  More often than what should be acceptable to any free society, the judges in the employ of the central government, have worked to extend their own jurisdiction; finding endlessly more issues within the purview of federal law.

Alexander Hamilton was one of those people who immediately gave great effort towards expanding the central government's power beyond the narrow limits specified in the text of the Constitution.  Yet, even Hamilton himself would surely be shocked at how far the federal judiciary has taken such loose construction in our time; for example, the use of the interstate commerce clause to vitiate the original structure of the Constitution.

The absolute right of resisting such oppressive measures is inherent in all people, and a constitutional barrier should be formed so that the People themselves, or their genuine representatives, may stop oppressive actions early, before they become fixed as a part of civil society.  In practice, though, this right has proven to be nothing more than theory in regards to judicial tyranny.  Judges have been rendered totally independent both of the legislature and the People; and, in considering the Supreme Court, no errors they may have committed can be corrected by any power above them, if any such power actually exists.

The questions which naturally arise from this study are thus; should the judges not be under some level practicable control; should they be authorized to only judge according to the letter of the Constitution; or should they continue to have the power to decipher and construe its meaning based on their own understanding?  Just and proper answers to these questions, I intend to provide, and, if necessary, will revisit in future papers.

In Article 3, Section 2 of the Constitution, it is stated, "the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority."  The cases arising under the Constitution must be different from those arising under the laws, or else the two clauses in this section mean exactly the same thing.  The cases arising under the Constitution, therefore, must include anything that may bring into question its meaning, and would require an explanation of the nature and extent of the powers of the departments and related offices under it.

Thus, this clause gives the judicial branch it two primary powers:  First, they are authorized to resolve all questions that may arise upon the meaning of the Constitution in law.  According to this manner of interpretation, the courts are supposed to explain the meaning of the Constitution so as to ensure that it is consistent with the common and generally accepted definition of the words in which it is expressed; and to consider their customary and popular use, rather than their grammatical correctness.  When words are arguable, they are to be explained by context.  Second, the judicial branch not only has the power to decide questions upon, and explain the meaning of, the Constitution in law, but also in equity.

To put it simply, this article, therefore, entrusts the judicial branch with the power to decide all issues that may emanate from any case on the construction of the Constitution, both in law and in equity.  From this, they are empowered to explain the Constitution according to the reasoning behind it, without being confined to the words or letter as written.

This great and dangerous power is that which has enabled the judicial branch to alter the foundations of freedom in the United States.  In their decisions, they have not confined themselves to any fixed or established rules, but rather, they have determined, according to their own opinion, the reason and meaning of the Constitution.  The opinions of the Supreme Court have had the force of law; because there is no practical and effective power provided for in the Constitution, which can correct their errors, or control their decisions.

It is essential to our liberty that the central government, and each of its branches, must be controlled by the Constitution; and not the Constitution by them.  Therefore, according to all standing maxims of freedom, they have no more right to change the meaning of it through their own personal opinions, than they have to take the power to declare war from the Congress, and give it to some other person or group.

Our nation's citizens are entitled to an honest and faithful government; to a government of laws and not a government of people.  I hope to see this ideal embraced and secured; and corrupt, arrogant, and despotic people contained.  If the Constitution continues to be read as vague, then we will forever be destined to depend entirely upon the discipline, wisdom, and justice of those people who administer the duties of government; or on what is more unreliable; the potential for us to wrest power from those who abuse power, and place it in the hands of those who will use it well.

"Miserable is the lot of that people whose every concern depends on the will and pleasure of their rulers."

I will continue our examination of the government of the United States with my next paper, on January 12, 2006.


In the spirit of liberty and prosperity,


Franklin