A Supreme mistake by Glenn Schuckers

The impression that the Founding Fathers created a perfect Constitution and that, as it was written, it was a document created by “demi-gods” has almost always been my opinion as well. The Constitution has been in effect since 1789 and with the Amendments that have been added has produced the most perfect model of government the world has ever seen.


Until I read some history of the Constitution and the men who wrote it, I had no idea of the conflicts that were involved. As I read more I learned that from the beginning there were two factions with  very different ideas about American democracy. Some of them, like Jefferson and Madison, favored as much power for the people as possible. Even though they were part of the upper class of the time coming from land owning, slave holding essentially the rich class, they believed that all people (freemen only) were capable of running the government and directing the affairs of state, without the control of anything like a king or monarchy.  

Jefferson, in particular, favored an agrarian society ruled by men who farmed the land and could run the government as they  ran their farms without much direction or control from a centralized government. It is from that outlook that we get the phrase “That government is best that governs less.”

The other side, favored by men like Alexander Hamilton and John Adams, had a distrust for putting too much power in the hands of the people. It was recorded during discussions of how to deal with what Washington called the “Chief Magistrate” that Hamilton favored calling that person by the term “Your Excellency,” and making it an office that would be elected for life never having to be elected after once gaining the office. Both Adams and Hamilton saw a form of the British monarchy as a nearly perfect government. It became something of a regional issue with delegates from the South favoring the more democratic approach while those from the North and Northeast favoring the British form.

In the end, delegates from the South prevailed along with the help of Benjamin Franklin who was neither a Northerner nor a Southerner, but an ardent foe of people like the Penns whose power came from being part of an established family.

As we all have heard the Constitution was a series of compromises with one house of Congress  (the House of Representatives) more “democratic” in that its members served for only two years before standing for reelection and apportioned based on population. The other house (the Senate), being less “representative” with two senators from each state regardless of the numbers of people represented. That compromise satisfied both factions to the extent that they could vote for it even if they had reservations. 

The other compromise gave us Article II which established the executive branch of government. It starts off by saying, “The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected.” That omitted the name “Your Excellency” and set the name of “president” for the head of the executive branch. It has been modified a few times since the original definition, with the number of terms being limited to two and the addition of an amendment as to how the office can be handled when the holder cannot discharge the duties.  Nonetheless the basic duties and restrictions have served the country well since the Constitution was first ratified. 

That brings us to Article III and the judicial branch of government.  Not having been present during the discussions, I do have a feeling that by the time the delegates got to Article III they were tired of designing a government  and making compromises. So when it came to writing that Article they just said, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,” (sic).

That was a mistake. 

Note a couple of things. First it was a “supreme” court and not the “Supreme”  court. It also went on to state that the judicial power would be in that one court “and in such inferior Courts as the Congress may from time to time ordain.” In other words Congress was given the power to establish other courts and in so doing to establish the rules for those courts. Second, and more important, by combining both the supreme court and inferior courts, the rules for both could be established by Congress. 

We are at a time when I think that Congress needs to establish some rules for this “supreme” Court. It was established at a time when everyone assumed that no judge would allow his or her honor to be compromised by money. That assumption has worked most of the time since 1789. The judges, so far as we have been able to learn, held to the oath they took and were never compromised by outside influences.

Not so today. 

The Supreme Court has become yet another partisan arm of government. I am not completely sure about this, but my feeling is that it all started when the Senate refused to confirm or even interview a nominee of then president Obama, saying it should come from the next president. That made it a political appointment, plain and simple, as evidenced by the same Senate confirming other nominees at a time when their nomination was closer to an election than the one made by Obama. 

The difference is that the Court was set in a direction made, not  by judicial  acumen or experience, but rather by a political agenda. In short, one president was able to “pack” the court with judges who agreed with his political agenda. (That in spite of a promise made (and broken) acknowledged by one senator who said she had been lied to by the nominee.)

That leaves us with a situation we now have, which is not a good place at all, with 75% of the people having little or no faith in the Court. Two justices have now admitted to accepting money that they did not report as required by law and saying in effect, “What are you going to do about it?” They know full well that if they were to resign now the political direction of the court would be changed and they do not want that to happen. So we are met with a situation most Americans do not like or agree with, but apparently can do nothing about, and that is a bad place in which a democracy can continue.

Since neither judge has given any indication that he puts his country above his personal lust for power, and given that the current makeup of Congress cannot do what the people want done, we have one choice.

We must change the political balance of power and give the president the power to “unpack” the current Court by nominating three new justices which would restore a balance and make the court a place where cases would be decided on their merits and the law and not on a political agenda. That requires Congressional action and Congressional action will only come if the people exert the power of the ballot.