The Politically Incorrect Guide to the Constitution

[Roadrunner]

The Politically Incorrect Guide to the Constitution by Kevin R.C. Gutzman is a book everyone should have in his or her home library as a reference and resource. Simply written, this book goes into detail about the why and how of the Founding Fathers‘ work and contains copies of the Articles of Confederation, the Declaration of Independence, and the Constitution.

Some of the information contained in this book will surprise you as the subverting of the Constitution began soon after John Marshall became the first Chief Justice of the Supreme Court. The Supreme Court subverted the work of the Founding Fathers by making into law (without even the necessity of going through the amendment process!) policies that were discussed and rejected at the Constitutional Convention. Today the law of our land is not the Constitution, but case law as defined by five Supreme Court justices.

After reading this book, there was a question in my mind as to whether Supreme Court justices should have lifetime appointments. Perhaps after the first four to six years, their continuation on the court should be approved by vote of the people. Currently there is no obstruction to their “legislative” powers. If they knew that people had the power to kick them off the bench, perhaps they would give more thought as to how they “intrepret” the Constitution.

[Kathianne]

The Politically Incorrect Guide to the Constitution by Kevin R.C. Gutzman is a book everyone should have in his or her home library as a reference and resource. Simply written, this book goes into detail about the why and how of the Founding Fathers‘ work and contains copies of the Articles of Confederation, the Declaration of Independence, and the Constitution.

Some of the information contained in this book will surprise you as the subverting of the Constitution began soon after John Marshall became the first Chief Justice of the Supreme Court. The Supreme Court subverted the work of the Founding Fathers by making into law (without even the necessity of going through the amendment process!) policies that were discussed and rejected at the Constitutional Convention. Today the law of our land is not the Constitution, but case law as defined by five Supreme Court justices.

After reading this book, there was a question in my mind as to whether Supreme Court justices should have lifetime appointments. Perhaps after the first four to six years, their continuation on the court should be approved by vote of the people. Currently there is no obstruction to their “legislative” powers. If they knew that people had the power to kick them off the bench, perhaps they would give more thought as to how they “intrepret” the Constitution.

I've not read the book, but will say the power of Judicial Review had the groundwork laid in Federalist 78 by Hamilton, not surprisingly. It was a power that was a legacy of the both colonial justice system and the English legal system.

Others, notably Jefferson disagreed, however as so often once the Constitution was actually put into effect, Hamilton's view prevailed.

I'm not saying it was right, but the precedent was established early and with deliberation. The 14th amendment strengthened it no doubt.

[Roadrunner]

Yes, although Hamilton's ideas were discussed and rejected at the Constitutional Convention, he got everything he wanted by way of Supreme Court "interpretations".

In no way did the Founding Fathers ever intend that the Supreme Court would have the power that it wields today. The Founding Fathers would be flabbergasted at the turn events have taken in the government they worked so hard to establish.

Thanks for sharing your thoughts on the topic.

[Kathianne]

Yes, although Hamilton's ideas were discussed and rejected at the Constitutional Convention, he got everything he wanted by way of Supreme Court "interpretations".

In no way did the Founding Fathers ever intend that the Supreme Court would have the power that it wields today. The Founding Fathers would be flabbergasted at the turn events have taken in the government they worked so hard to establish.

Thanks for sharing your thoughts on the topic.
Actually moreso through arguments of Federalists and being Secretary of Treasury-with Washington's approval. You are not discounting Washington, are you?

Some of the Founders certainly disagreed with Hamilton, though none of either side were able to persuade the public as he, Jay, and Madison. Hamilton disagreed with nearly all at one time or another and also agreed with most at one time or another.

Jefferson certainly disagreed with Hamilton, until discussing what would become DC. He was certainly against a strong executive, until it was time for the Louisiana Purchase.

Our Founders were nearly all pragmatists. Where we certainly agree is that I believe they all would have been appalled at what a nanny state this has become. I know they'd be deeply troubled by the electorate's ignorance of history and of non-participation in the system they gave up so much for.

[KartRacerBoy]

Interesting thread even if it's an old one. I've not read the Federalist papers nor the cited book, but I don't understand a system of separation of powers where one branch doesn't have the final say on what is Constitutional. The alternative is that each branch determines what is constitutional. If the different branches disagree, what then? Just a bare knuckle political fight? To me, the Constitution has ultimate protections that even politics can't subvert. Leaving constitutional interpretation to such obvious political bodies like the exec or Congress would do just that.

Marbury vs Madison lead to the power to interpret the Constitution being in SCOTUS. While the Supreme Court isn't perfect (I think it's very partisan right now), it's better than that power being left in the Executive or Congress, each much more subject to political whims.

[fj1200]

... but I don't understand a system of separation of powers where one branch doesn't have the final say on what is Constitutional.

But what is the check on the Supreme Court?

[KartRacerBoy]

But what is the check on the Supreme Court?

Death (of course life appointments usually meant 10 yrs of service when COTUS came into being. See how the Founding Fathers weren't always so brilliant?). Now of course SCt justices can live 30+ yrs after appointment. I'd approve of a constitutional amendment to limit terms to a period of yrs, perhaps 20, but they ex-justices must then NOT be allowed to practice law. Retirement only with a healthy pension. Otherwise, too much influence and potential conflicts in the modern legal world.

The other controlling factor is of course politics. The govt of Georgia completely ignored a SCt ruling upholding a treaty with the American Indians in the 1800s that ruled the Indians had the right to land in GA. Instead, the govt of GA drove the Indians out. I think (although I'm not sure), that lead to the Trail of Tears. The SCt cannot get so far ahead of American society that their rulings will be ignored. That's why Brown v Bd of Ed worked. Ten years earlier, desegregation and the demise of "separate but equal" would've led to a new civil war, but American society was generally willing to go along, despite resistance. Similarly today, the SCt can't get too far ahead of society on gay rights. If they do, their rulings will equally be ignored (as in the Indian case). That only hurts their power. What institution doesn't seek to retain power?