"...judicial power is of such a nature, that when we have ascertained and fixed its limits, with all the caution and precision we can, it will yet be formidable, somewhat arbitrary and despotic — that is, after all our cares, we must leave a vast deal to the discretion and interpretation — to the wisdom, integrity, and politics of the judges — These men, such is the state even of the best laws, may do wrong, perhaps, in a thousand cases, sometimes with, and sometimes without design, yet it may be impracticable to convict them of misconduct." (Federalist Farmer, No. 15)

In earlier discourses on this topic, I have attempted to show that while forgotten to a considerably degree by history, the Anti-Federalists have been vindicated, over the ensuing two centuries, in asserting that the product of the 1787 Constitutional Convention would pose innumerable problems for the new American nation. In spite of their eventual defeat in the court of public opinion, they were, on the whole, much more truthful in their analysis of the U.S. Constitution than were those of "victorious" Federalists. The unacknowledged genius of this group of patriots who labored tirelessly and wrote thousands of words filled with dire warnings and predictions of eventual calamity remains a testament - even more today - of their insights and, ultimately, the fecklessness of public opinion.

Time and time again, the Anti-Federalists predicted, rightfully, that two passages, in particular, would bedevil this nation for centuries to come. These two passages are:

Article I, Section 8, paragraph one: "The Congress shall have the power to lay and collect Taxes, Duties, Imposts and excises to pay the debts and provide for the common defense and general welfare of the United States..." , and

Article I, Section 8, paragraph eighteen: [The Congress shall have the power] To make all laws necessary and proper for carrying out into Execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States..." [Emphasis added]

In the fourth part of this series, I endeavored to explain how long a tether these two insidiously ambiguous passages provided the growth of the national government. I further strove to reveal how easily Congress has stretched its parchment shackles since 1787. I scarcely believe that Hamilton, Madison, Jay and the other "High Federalist" defenders of the Constitution would recognize today the beast they released on their Nation and to what limits the restraints they provided have been abused. The "system of checks and balances" and the "separation of powers" so gloriously exalted in civics classes throughout the Nation were, in truth, but castles in the sand, long since washed away by the relentless waves of the rising federal tide.

In continuing the analysis of the Constitution and how it has been completely transformed into a instrument so far from what was intended in those heady days of the late 18^th century, we will take up Article III here. I will attempt to show:

1. That the establishment of a federal judiciary, in general, and the Supreme Court, in particular, created a third branch of the government that singularly evades any precept of democracy. And

2. As a thoroughly uncensored branch, the federal court has been allowed to extend the "letter of the law" and, through pernicious "judicial activism," have actually become the self-appointed interpreters of "the spirit of the law" and, indeed, the Constitution itself. And, finally

3. That the federal court system has, through its faulty charter and wrongheaded inception, transfigured itself into the most powerful branch of the government, surpassing the elected Congress and the Executive.

As to the first point, the mischief begins early; Article III, Sections 1 and 2 state, respectively:

"...The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."

"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;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states; between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects...In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." [Emphasis added]

From Article II, Section 2, we are told that judges of the Supreme Court are to be appointed by the President and approved by the Congress. Thus, they are not subject to the approval of the citizenry. Furthermore, as Article III, Section 1 attests, they are not subject to removal by any other power whatsoever. They serve, absent any method of recall, during "good behavior" which is merely the absence of "impeachment for and conviction of treason, bribery or other high crimes and misdemeanors". (Article II, Section 4)

Thus, the Constitution establishes a branch of authorities who are unelected, serve for life, are not subject to recall or censure for errors in judgement (or anything but the most heinous of behaviors), deliberate in secret and are empowered as the final arbitrators of not simply "the letter of the laws" enacted by Congress but also the penultimate authority on "the spirit" of the laws and the Constitution, itself. In truth and in practice, the Supreme Court can set aside any decision made through "due process" in any court, state or federal, and reverse a lawfully-decided jury verdict based on law or fact. If this is not an aristocracy then, one may reasonably ask: What is?

Some recognized the dangers early in the process of public review of the Constitution in 1787. "The Federalist Farmer" (generally attributed to Richard Henry Lee of Virginia) and "Brutus" (likely of Robert Yates of New York) were particularly attentive to the potent evil that lay in establishing such an unbounded branch of government. The Federalist Farmer #15, from which this examination extracts its introductory quote, contrasts the "court of final appeal" in the new Constitution and in the British judicial system and finds the Constitution lacking. The author makes the point that:

"By the common law, in Great Britain and America, there is no appeal from the verdict of the jury, as to facts, to any judges whatever--the jurisdiction of the jury is complete and final in this; and only errors in laws are carried up to the house of lords...Thus the juries are left masters as to facts. But, by the proposed constitution, directly the opposite principle is established. An appeal will lay in all appellate causes from the verdict of the jury, even as to mere facts, to the judges of the supreme court. Thus, in effect, we establish the civil law in this point; for if the jurisdiction of the jury be not final, as to facts, it is of little or no importance." [Emphasis added]

Brutus’s dissection of Article III of the new Constitution and its implications was more thorough and cogent; he, in fact, spent his eleventh through fifteenth papers addressing this issue. With his writings, he laid bare the veiled hypocrisy of the Federalist Papers (primarily from Alexander Hamilton, numbers 78-83) and decisively proved that the central court system proposed by the Constitution was entirely new in all of history and, as such, was open to the self same usurpation and extension of powers we have seen up through the present time. He summarizes his thoughts in this passage:

"I do not object to the judges holding their commissions during good behavior. I suppose it a proper provision provided they were made properly responsible. But I say, this system has followed the English government in this, while it has departed from almost every other principle of their jurisprudence, under the idea, of rendering the judges independent; which, in the British constitution, means no more than that they hold their places during good behavior, and have fixed salaries, they have made the judges independent, in the fullest sense of the word. There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself." [Emphasis added]

That the Supreme Court of the United States has, in numerous contemporary instances, assumed that they are, indeed, "independent of heaven itself" is indisputable. In the dark days of judicial activism which spanned the years 1953-1969 when the Court was headed by Earl Warren, more mischief was done to erode the Constitution than in any other time (except for the term of the founder of "judicial review," Chief Justice John Marshall). But, lamentably, there remains absolutely no recourse to the Court’s extending its power and influence.

In truth, the Supreme Court has stolen, to a significant degree, the power of the citizenry’s elected Congress. While the Court may not propose nor pass legislation, it does, as a result of judicial activism, dictate and direct what does pass into law. This danger to democracy was described by Brutus in his 12^th essay. He writes:

"It is to be observed, that the supreme court has the power, in the last resort, to determine all questions that may arise in the course of legal discussion, on the meaning and construction of the constitution. This power they will hold ... independent of the legislature. In determining these questions, the court must and will assume certain principles, from which they will reason, in forming their decisions. These principles, whatever they may be, when they become fixed, by a course of decisions, will be adopted by the legislature, and will be the rule by which they will explain their own powers...The legislature, therefore, will not go over the limits by which the courts may adjudge they are confined. And there is little room to doubt but that they will come up to those bounds, as often as occasion and opportunity may offer, and they may judge it proper to do it. For as on the one hand, they will not readily pass laws which they know the courts will not execute, so on the other, we may be sure they will not scruple to pass such as they know they will give effect, as often as they may judge it proper. From these observations it appears, that the judgment of the judicial, on the constitution, will become the rule to guide the legislature in their construction of their powers."

Thus, we might presume that we have reached our 3^rd point; namely, that the federal court system, doing wrong to all that was intended, has become the most powerful branch of the government. With an unelected aristocracy which serves for life, which cannot be dismissed and whose decisions cannot be reversed, the Supreme Court surely surmounts the popularly elected branches of our system of rule. For, to have the power to dismiss and negate any legislation (state or federal) that the Court "feels" to be counter to either the letter or the spirit of the Constitution does, ultimately, dictate what laws will be passed. Congress will not be inclined to pass laws (even laws that the people might, rightfully, demand) if they know they will be struck down by a activist Court. By this negative power, the Court - not the people’s representatives - is at the apex of legislative control. Res ipsa loquitur.

On examining the writings of those who argued against a national government establishment with the concealed mischief that lay in obscure phrases (e.g. "...the general welfare", "...all laws necessary and proper", et cetera), the reader is aware of how precognitive these brilliant men were. Just as the Anti-Federalists knew there was malfeasance in the Constitution for their own time, they saw the future dangers with a clear eye. The warnings to their fellow citizens did not have the desired effect. But, through their neglected words, those living today can surely appreciate their understanding of what a misconceived republic can become when compounded over years.

Indeed, a tiny seedling may grow into a mighty tree. But the seedling of a great republic, however well planted into proper soil, is much deformed when left to errors in judgement, self-interest and vanity of man.