The Supreme Court as Accomplice: Judicial Backing for Executive Power

0:00Good afternoon. I've never really had the opportunity to introduce myself, so I was thinking about some nice things I could say about myself and then it dawned on me, rather than saying who I am, for our purposes this afternoon, it might be more beneficial to say what I am. And I am, unabashedly, a anti-Federalist, neo-Confederate. Gee, I didn't expect that type of response. I thought I'd experience a brooding omnipresence fall over the room.

0:48But, let me tell you why that's the case. Many of the problems that we're discussing at this conference would be non-problems had the Confederate principles prevailed from 1789 onward. And my talk this afternoon is going to have a dash here and there of those principles. And for those of you non-believers, don't give me the slavery trump card. I just don't buy it. I am convinced, and I just finished another paper along these lines, that had the Confederacy survived intact, that slavery probably would have been dealt with much more genuinely, certainly much more constitutionally, and the problems that have loaded us down since the Civil War would probably have been resolved in a much more genuine procedural fashion.

1:47My title, the title of my paper, the paper is rather academic and stuffed full of technical terms in Supreme Court cases and such as that. And I'm going to simply shoot from the hip and I'll be scrambling with papers up here, so please bear with me. But the paper's title, the new title of the paper is, Supreme Court as Accomplice, Judicial Backing for a Despotic Presidency. And the subtitle of that subtitle is, You Ain't Seen Nothing Yet, when it comes to despotism. And I focus on the presidency as an institution rather than a particular individual.

2:33The problem is systematic in the national government. had the appropriate constitutional checks been left in place or put in place when the occasion arise, it wouldn't matter who's in the White House. But even if, even if we simply, we happen to have a law-abiding president who believes in the rule of law, I think that will have a very nominal influence on the overall direction of political constitutional Development. And the reason I say that, I got interested in the Civil War constitutional principles in graduate schools, just by coincidence, as a matter of fact, my father's from Connecticut, my mother's from Germany, I really have no ties to the South, and for the most part, intellectual ties. But I just was realizing that there's something's wrong here, that the more I read in the Secondary The literature that the Confederate Constitution was simply a carbon copy of the U.S. Constitution just didn't make sense so I started to investigate this a bit more and it led me to one project into another and a couple of projects ago I was researching the Ninth Amendment and I am absolutely convinced and I wasn't at the time but over the last couple of years that the written constitution at one time was a good idea, it is probably

4:05is a very bad idea. There's no such thing as the rule of law or a constitution in the strict sense of the word. The jurisprudence of the Ninth Amendment has convinced me that it is fraudulent, it is a ruse, that the incrementalism of leading us in a particular direction is irrefutable. And what I've done in this paper that I'm going to talk about briefly this afternoon is I've looked at where our constitutional development has led from the earliest periods up until the Civil War into contemporary jurisprudence and what I'm going to talk about this afternoon is what's ahead, what's in the future and how does that tie into significant constitutional law cases, My conclusions, even though at this point, being a political scientist, I have to say they are strictly speculative, but I am not very optimistic.

5:07The framers of our constitution, none other than Publius himself, certainly no anti-federalist, but he wrote during the constitutional debate that the zeal for the rights of the people and efficiency in government have been the rhetorical materials in successfully overturning The President, as representative of the American people, as opposed to the representative of the collective interest of the state in their corporate character, is a very serious problem in contemporary politics.

5:56The previous speaker, Dr. Holcomb, made reference to the U.S. Senate. Let me digress for a moment that it's the least democratic of institutions. And I was thinking, well gee, you know, I always thought of the Senate as the most democratic of institutions in the sense that it was designed and structured to protect the states and the corporate character. that it was designed to protect the states, the democracy within the states, from an overbearing national government. Of course, that was a miscalculation on the part of the framers, especially in light of the 17th amendment. In a recent Supreme Court case, the Thornton case, where the justices said the U.S. senators do not have a state constituency.

6:43Their constituents are national and indeed international, and that's why the court said you cannot have term limits on U.S. senators, because they represent everyone, and a state such as Arkansas has no right to deny the people of Massachusetts of electing someone from Arkansas essentially. It's sort of a circular argument, but it's in the case. Now originally, under the national system that was established, there were some implicit, unwritten policies that protected the states and their corporate character. One of which was interposition and nullification. We are all familiar with the Kentucky and Virginia resolutions, and also of secession, state secession.

7:33and anyone who thinks that secession is unconstitutional, read the Supreme Court case on that issue, Texas v. White, 1869, and you'll see that it is a very weak argument indeed. But without these options, the President, as representative of the people, has the political, the constitutional capacity and the motives to utilize and indeed maximize the powers of his office to achieve his policy objectives. And I use the word his, the phrase his policy objectives to represent a particular momentum, an inclination towards a particular development in the national growth.

8:22And if you think back about even with President Clinton and his problems today, even the Republicans, they're criticizing Clinton primarily for being ineffective. And I think that speaks volumes. They want somebody who is an effective leader to represent the nation, to move the nation forward. And any short-term gains from an incapacitated presidency, I think, are strictly that short-term. I think the powers that be will get somebody up there who will not have the same problems and will be much more efficient in pushing through a national, indeed an international agenda. But my focus will be on the constitutional capacity.

9:11What is the constitutional capacity of the U.S. presidency? Within this framework, the constitutionally sanctioned presidency has at his disposal a tremendous, tremendous amount of coercive powers. Powers, powers that I consider to be tantamount to despotism. Now the despotism might be soft in one instance, it might be very hard in another, but it's despotism nonetheless, and it's a potentiality that can very easily be activated if the circumstances require it. The transition from states' rights to a unitary nationalism with an actual or potential despot at its head was the most significant development in American history.

10:04The transition from unitary nationalism towards the global hegemony is in progress. So think about what's happened to the states. The states in many instances, and I know this has almost become cliché, are for the most part administrative age extensions of the national government. Now they certainly have constitutional mechanisms in place where they can re-assert their authority, but for cultural and political reasons that isn't done. But I'm convinced that the nation state is going in the same way as the American state, that soon the nation-state will be an extension of some transnational, international governing body.

10:52The importance of relative case law with the confluent themes of human rights and efficiency, uniformity, will be used to substantiate my position. I'm going to take a look very briefly at, I'm not going to bore you with the details of a case in 1816, Martin v. Hunter, to just give you an idea as to what we could have been, as to what we have become. This goes back to 1812, the case actually did, but essentially, just to paraphrase it in very general terms, the facts of the case were that the state of Virginia had a land dispute case that went back to two treaties of the 1780s and 1790s with Great Britain as a result of the Revolutionary War.

11:47Anyway, Martin, who after the land passing on to a couple parties in the interim, Martin sues Hunter. Hunter wins the case at the Virginia Court, and in the highest court that had jurisdiction at the time. Martin, dissatisfied with the high court of Virginia's decision, appeals to the U.S. Supreme Court, and Virginia simply refuses to participate. There is another case similar to this, Cohen versus Virginia, but Martin refuses to participate, or Hunter, Virginia refuses to participate. They ignore the writ of error. They said, we don't care what the Supreme Court says. We have jurisdiction. We tried the case. We are a sovereign nation, a sovereign state within the national orbit. And we're not going to subject ourselves to national judicial supremacy.

12:39Now think of the options of that. Think if, just for a moment, that if each state court, now I know the states have their own problems. I know the states can be tyrannical and everything else. But the Anti-Federalist position is at least the proximity of those leaders are reachable. You can get to them. They can be your neighbors. You know who they are. You know where they live. Try to take that same approach to the members of the U.S. Supreme Court. And most state courts are in some way tied into the democratic process, whether it's a mere retention election or whatever. Virginia Court lifted up to the state court to decide what was and was not in pursuance of the U.S. Constitution. Now the basis of the Supreme Court's argument against Virginia was the possibility of abuse, the possibility of abuse. And writing for the court, Joseph's story, I mean it's a beautiful exposition of nationalism. Everything you think of Lincoln and you could put into the jurisprudence of Joseph's story. But in 1860 he said essentially that the possibility of abuse is not an argument for denying the power to the U.S. Supreme Court. The possibility for abuse is not a reason to deny the power of judicial review over state courts to the U.S. Supreme Court.

14:14What's peculiar about that is three years later in McCulloch v. Maryland, and by the way, Marshall didn't write the opinion to this case because he had an interest in the property, which came out his way, by the way, but in McCulloch v. Maryland, Marshall says the potential for abuse is a reason for denying the taxing power to the state governments. So you have two cases within three years of each other based upon two different judicial axioms. But the cases, the reason why it's so interesting within this context is that it talks about treaties and the importance of treaties and that treaties must be enforced and that states must be in compliance and that states cannot drag their feet and that the power of the national government can be brought, that coercive powers of the national government can be used to bring the states into line with a treaty because of the national interest argument.

15:14Justice Curtis, a few years later, when talking about jurisdiction, he wrote, let it be remembered, this is court jurisdiction, because I think we tend to lose sight of the checks that could have been in place, but because of the Supreme Court interpreting the Constitution in a particular way, when it came to jurisdictional issues, we've lost the very essence of our federal system. Let it be remembered, Justice Curtis wrote, also, for just now we may be in some danger of forgetting it, that questions of jurisdiction were questions of power as between the U.S. and the several states. Questions of power.

15:59Now let me take a quantum leap to 20th century jurisprudence. In a couple of cases, I have In Missouri v. Holland, the opinion was written by Oliver Wendell Holmes, and he took the position that the 10th Amendment, it had to do with migratory birds, and the state of Missouri wanted to have those migratory birds, those Canadian birds accessible to us, accessible to us, accessible to us, accessible to us, accessible to us. Accessible to its hunters during hunter seasons. The Canadians were upset because the birds weren't returning on the migratory flight back to Canada.

16:45So they signed a treaty with Great Britain, which had jurisdiction over Canada at the time. And Missouri said, forget it. We have 10th Amendment powers, and we're using these powers to regulate our hunting policy. There's nothing in the U.S. Constitution that allows the national government to intrude upon the reserve powers of the states. And just, I have a paragraph here, let me just simply state that the, what, I'll read a line of what Marshall, what Oliver Wendell Holmes said to that position. The only question is, the case before us must be considered in light of our whole experience and not merely in that of what was said a hundred years ago.

17:37The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved. A very fluid interpretation of a key constitutional provision. And by the way, that's nothing new. Chief Justice John Marshall says exactly the same thing in Gibbons v. Ogden in 1824, that the commerce powers of the Congress are contingent upon circumstances, and that the necessary and proper clause will expand and contract depending upon the interest and the needs of the country.

18:25But to say that the 10th Amendment doesn't have a reservoir of powers that reserves to the states, that those powers can be decreased depending upon what's in the national interest, is an important point that I want you to keep in mind. The second case I want to take a look at is US v. Curtis Wright, 1936. and its companion case in 1937, U.S. versus Belmont. The 1937 case essentially says that when the president signs an executive agreement with a foreign country, it doesn't need Senate ratification, but it has the same legal status as a treaty that had Senate treaty ratification.

19:10But this is what Justice Sutherland has to say about the powers of the President when it comes to national interest, if I can quickly find it. Justice Sutherland ruled that the investment of the Federal Government with powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers of the external sovereignty passed from the Crown, that is, to King George III, to the government of the United States, and then onto the office of the President of the United States, to the office. So part of our case law specifically states that the President of the United States has the same powers that King George III had as King of England.

20:05Those previous cases say that the president can sign an executive agreement or international agreement that has the same status as a treaty, but doesn't have to go through the problem of Senate ratification. All of those have the power of law within the states and that the states, their reserved rights will contract as the national interests expand. Now, that might seem rather benign, like, so what? Big deal. We still have, as Marshall says, the only limits on congressional commerce powers, there are two of them, and one of them is the constitutional checks, but that's so expansive, there are really none there, and the other is the political process, but when you look at some recent developments, post-war developments since the 1940s, The United States is a party to, it becomes rather ominous, and just to very briefly give you an idea as to what I'm talking about, in 1985, the United States, now we all know about the UN Charter and all the, you know, the Charter doesn't represent nations, it represents the human family, so on and so forth, but in 1985, we agreed to the UN Charter

21:31U.N. General Assembly adopted what is referred to as the basic principles on the independence of the judiciary. And Boutrous Boutrous-Galley, when he was U.N. General Secretary, wrote about this extensively. He said, we have these obstacles in our path in implementing this international human family of rights. And they're primarily political and the nation states are in our way. And he admonishes and he calls upon the judiciary, especially the United States. He points to the United States that it is time that they incorporate these principles that the United States is a party to into case law. And there are two basic agreements. Let me just give you some of the things that, and then I'll very briefly, the basic principles of the Independence of the Judiciary, which is as follows.

22:21Follows, whereas the IEC, the International Covenant of Economic, Social and Civil Rights, and the International Covenant on Civil and Political Rights, and something known as the Optional Protocol, all guarantee the exercise of certain rights. This is part of the agreement. Whereas frequently there still exists a gap between the vision underlying those principles and the actual situation. As the organization and administration of justice in every country should be inspired by those principles, an effort should be undertaken to translate them fully into reality, whereas roles concerning the exercise of judicial office should aim at enabling judges to act in accordance with those principles, whereas judges are charged with the ultimate decision over life, freedom, rights, duties, property, and so on and so forth, and the cause upon On the Judges, the Judges, just as the 14th Amendment incorporated the Bill of Rights and made them applicable to the State, the thinking of the United Nations community is that the Judges need to incorporate these fundamental rights of the human family into American and Western democracies case law.

23:40And as a matter of fact, some really significant developments have happened in international law where you could go to certain international tribunals and adjudicate a case that used to be only nation states could do it, but now individuals can. But here are some of the rights we're talking about. The equal right of men and women to the enjoyment of all economic, social and cultural rights, Article 1, Article 2, the right to work and the right to freely choose or accept the work one does, Article 6, the right to favorable working conditions, fair wages, leisure, paid holidays, Article 7, the right of everyone to form a trade union, the right of trade unions to form national federations, the right of national federations to form international trade union organizations, the right to strike, the right of everyone to social security and social insurance, The right of everyone to an adequate standard of living and the fundamental right to be free from hunger.

24:41The right of everyone to the enjoyment of the highest attainable standard of physical and mental health. And the right of everyone to education. Now when we talk about these rights, at least the United Nations, they're not talking about the rights of Americans, the rights of Georgians, the rights of Texans. They're talking about the rights of human families, or the right of the human family. The nation-states are non-players in the theoretical sense. The shift has gone from the state to the nation to the human family. Whenever you hear the word, the New World Order, think about the human family, because that's how the juridical community looks at it. Now, in closing, because I only have a couple minutes, and I did want to have just a minute or two, And now the Supreme Court itself may be outflanked by international tribunals. In the concurring opinion, Justice John and Sanction the Use of Force Against State Courts That Failed to Comply with Supreme Court Mandates.

26:06The confluence of laws being formulated further and further beyond the influence of popular control, in this case, Washington, D.C., not to mention the obscure corridors of the United Nations and the centralized juridical articulation of what the law is does not bode well for an American jurisprudence supposedly grounded in popular control and the rule of law. Moreover, as American jurisprudence is the mother's milk of legitimizing the ever-expanding presidential power, the American presidency is the praetorian guard of the American empire. In short, it does not bode well for genuine community self-determination, individual freedoms and liberties within the context of the rule of law. As Justice Story tells us, it is the necessity of uniformity that justifies centralization.

26:59Uniformity, for whom and towards what objective? For story, it was the American Empire. For contemporaries, both here and abroad, the legal obligation is towards the human family. That is the global empire. American jurisprudence, which was originally designed to secure our liberties through the rule of law, may now be utilized, may now utilize the rule of law to take away the same. There may soon be no room for community self-determination or individual liberty within the context of the rule of law and the house that Joseph Story, Justice Marshall and other Supreme Court nationalists and internationalists helped to construct. Is it unreasonable to anticipate the American people to soon face the fate of the Confederate South at the hands of the despot Mr. Lincoln?

27:51Compliance or Death. To dismiss, mock, or ignore the question is to answer it. To paraphrase Calhoun, perhaps Americans are too depraved, ignorant, and vicious to appreciate and enjoy true liberty. Thank you.