People often ask me whether I am a Democrat or Republican. My answer is as it has been for many years that I am neither because while I tend to be fiscally conservative I am an internationalist. In my view, the sustainability of the Republic has always been dependent upon the ability of both parties to compromise and moderate their stances on issues, especially those issues that politicians view a
s constitutional.
The increasing partisanship that characterized the eight years of the presidency of George Walker Bush and his successor President Barack Hussein Obama troubles me. Partisanship and its attendant factionalism have forced many centrists to retire or resign from their elective offices rather than seek reelection, which in turn resulted in the major parties moving away from the political center and retreating to more conservative or liberal positions. Unchecked partisanship, unwillingness to compromise, and an inability to moderate positions in an effort to find the common good for all its citizens regardless of gender, sex, race, sexual preference and ability on several occasions brought the Republic near the brink of failure. I can name at least six instances, historically, that nearly destroyed the republic:
1. The crisis over the Judiciary Acts of 1801 and 1802 that resulted in the Supreme Court not sitting from January 1802 to February 1803;
2. The attempted Impeachment of Associate Justice Samuel Chase in 1804-1805, and the trial of Aaron Burr in 1805 politically motivated attempts to alter the stance of the Supreme Court by embarrassing them;
3. The economic challenges brought about by the War of 1812 that led the Federalist to call the Hartford Convention of 1814-1815 and ultimately led to the dissolution of the Federalist Party;
4. The period from 1820 to 1877 was marked by a level of partisanship and hatred that reached a crescendo with the Civil War, 150 years later we are still suffering from the wounds which led to and resulted from this war;
5. The attempted impeachment of President Andrew Johnson in 1868 in which Congress attempted to assert primacy over the Executive Branch;
6. The Court Packing plan of 1937 that President Roosevelt and his allies attempted to use as a cudgel to leverage the Supreme Court into reversing its stance on the New Deal.
Our sociopolitical history demonstrates that Ishii Itaro was correct when he asserted, “in diplomacy, as in politics in general, compromise is essential; the interests of the opposition cannot be ignored. Give and take is crucial. One must think in terms of fifty-fifty, not seventy-thirty."
Associate Justice of the Supreme Court of the United States Robert Houghwout Jackson highlighted the centrality of compromise and moderation to the sustainability of the Republic in his work published posthumously in 1955 and reprinted in 1963 entitled The Supreme Court in the American System of Government. In his discussion of President Lincoln’s suspension of the Writ of Habeas Corpus and Chief Justice Taney’s response in Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861), Justice Jackson contended that neither the President, nor the Chief Justice accorded the concerns of the other with the weight they deserved, and in effect unintentionally caused further damage to a nation rent asunder by war.
Had Mr. Lincoln scrupulously observed the Taney policy I do not know whether we
would have had any liberty, and had the Chief Justice adopted Mr. Lincoln's
philosophy as the philosophy of the law, I again do not know whether we would
have had any liberty (Jackson 1955, 76).
The Founders intended the Constitution to be an organic document capable of addressing itself not only to their concerns, but as a document to protect succeeding generations. However, we must remain vigilant and guard against any interpretations that render the text too expansive or too restrictive such that it becomes useless and meaningless. Id: Reiss v. National Quotation Bureau, Inc., 276 F. 717 (S.D.N.Y., 1921)
I fear the extremism of political parties like the Tea Party and the Pirate Party of the United States because they are based on political frenzy and to a lesser extent demagoguery. We as a Republic must remain mindful of Vice President Burr's final words to the Senate.
“This house is a sanctuary; a citadel of law, of order, and of liberty; it is here, here in this exalted refuge, if anywhere,
will be resistance made to the storms of political frenzy and the silent arts of corruption. And if the Constitution be destined ever to perish by the sacrilegious hands of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor.” Aaron Burr's Farewell Address to the Senate March 1805.
My worries stem from the "Contract From America" specifically points one and five. Point one requires that the legislature identify the constitutional basis for each piece of legislation it passes. The provision could be abused to point where Article I sections 8 and 18 become meaningless due to an overly literal interpretation. Furthermore the contract as it reads could be used to interfere with the judiciary's ability to exercise its functions under Article III.
In regards to point five the creation of blue ribbon panel capable of making determinations about the constitutionality of government agencies could potentially encroach and interfere with ability of the judiciary to act in its capacity the arbiter on the constitutionality of government agencies because, the contract as written does not acknowledge the role of the judiciary in such cases. The idea that the legislature may audit agencies to assess their constitutionality is troubling because it is well settled that constitutionality of an agency or department rests with judiciary. See: Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Humphrey's Executor v. United States, 295 U.S. 602 (1935); United States v. Butler, 297 U.S. 1 (1936); Ashwander v. TVA, 297 U.S. 288 (1936); Jones v. SEC, 298 U.S. 1 (1936); NLRB v. Jones & Laughlin Steel Corp. 301 U.S. 1 (1937); NLRB v. Fruehauf Trailer Co. , 301 U.S. 49 (1937); NLRB v. Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1937); Associated Press v. NLRB, 301 U.S. 103 (1937); Washington Coach Co. v. NLRB, 301 U.S. 142 (1937).
Some have asserted that my position is tantamount to substitution in the sense that my opponents argue that I favor rendering Congress subservient to the Federal Judiciary, nothing is more removed from the light of truth. I seek only maintain the constitutionally mandated separation of powers contained within Articles I, II, and III of the Constitution.
It is true the Congress must attempt in good faith and due diligence ensure the constitutionality of legislation, but they sometimes forget as demonstrated by the Court Packing Plan of 1937 and the Ironclad Oath of 1865. Since Marbury and Laird were handed down in 1803 the judiciary on both the state and federal levels have reinforced and reaffirmed the judiciary’s position as the final arbiter of constitutionality when the constitutionality of a law, and by extension its legality is called into question. The judiciary has also consistently maintained that the legislature cannot encroach on its functions by expanding or diminishing them.
As elsewhere throughout the Constitution the section in question lays down principles which control the use of the power, and does not attempt meticulous or detailed directions. Every presumption is to be indulged in favor of faithful compliance by Congress with the mandates of the fundamental law. Courts are reluctant to adjudge any statute in contravention of them. But, under our frame of government, no other place is provided where the citizen may be heard to urge that the law fails to conform to the limits set upon the use of a granted power. When such a contention comes here we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress. How great is the extent of that range, when the subject is the promotion of the general welfare of the United States, we hardly need remark. But, despite the breadth of the legislative discretion, our duty to hear and to render judgment remains. If the statute plainly violates the stated principle of the Constitution we must so declare. United States v. Butler, 297 U.S. 1, 56 S. Ct. 312, 80 L. Ed. 477, 1936 U.S. LEXIS 946, 1936-1 C.B. 421, 4 Ohio Op. 401, 16 A.F.T.R. (P-H) 1289, 36-1 U.S. Tax Cas. (CCH) P9039, 102 A.L.R. 914 (1936)
See: Webster v. Reproductive Health Services, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410, 1989 U.S. LEXIS 3290, 57 U.S.L.W. 5023 (1989) United States v. Butler, 297 U.S. 1, 56 S. Ct. 312, 80 L. Ed. 477, 1936 U.S. LEXIS 946, 1936-1 C.B. 421, 4 Ohio Op. 401, 16 A.F.T.R. (P-H) 1289, 36-1 U.S. Tax Cas. (CCH) P9039, 102 A.L.R. 914 (1936); Evans v. Thompson, 518 F.3d 1, 2008 U.S. App. LEXIS 2816 (1st Cir. Mass. 2008
I contend that these planks of the Tea Party's platform implicitly violate Article III of the Constitution by impinging on the right of the judiciary federal judiciary to adjudicate legal questions related to legislation passed by Congress in the event a controversy arises. These planks in essence would abrogate and vitiate over two centuries of precedent dating back to 1794.
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