POC Separation of Church and State Newsletter #9
Madison said in Fed 48, pg. *204:
“An elective despotism was not the government we fought for; but one … in which the powers of government should be so divided … as that no one could transcend their legal limits without being effectually checked and restrained by the others.”
Hamilton said, in Federalist 78, pg. *313-314:
“[Judges] Least Threat to Constitutional Rights”
“… [T]he judiciary, ... will always be the least dangerous to the political rights of the Constitution because it will have the least capacity to annoy and injure them.
(This is only true if the original model of separation of powers and checks and balances are maintained.)
“The executive (president) not only dispenses honors but holds the community's sword.
“The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated.”
This legislative authority allows Congress to set public policy under the enumerated powers listed in Art. I, Sect., 8; like: implementing a draft, declaring war, borrowing money, establishing rules for emigration, regulating commerce with “… foreign Nations, and among the several States, … etc.”
The president as the Chief Executive has a lot of sway over public policy through his “Bully Pulpit” and potential veto over policy and law, but the president, armed with the sword, is charged with implementing policy, not making it.
Hamilton went on to say, in Federalist 78, pg. *313-314:
“The judiciary may be said to have neither FORCE nor WILL, merely judgment.
“The judiciary, … can take no active resolution whatever.”
Madison warned in Federalist 47, pg. *198-199:
"Were the power of judging joined with the legislative, … the judge, would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor."
Hamilton also said, in Federalist 78, pg. *314:
“Every act of a delegated authority that is contrary to its commission is void.”
When Congress oversteps its authority, or fails in its responsibilities, it is up to the people to correct the error by replacing those responsible.
If the Courts or the President are guilty of exceeding their authority it is up to the Congress to place a check on their unconstitutional activity by a number of options including the following:
- Not funding the issue
- Setting an exception for the courts, and/or ignoring a ruling**
- Closing or reducing the size of a particular district court thereby removing the offending judge or judges**
- Impeachment and removal from office
If we have representatives who fail to exercise their control over usurpation of unconstitutional powers perpetrated by the other two branches of government - powers delegated to Congress - “We the People” should educate them, and if that fails - replace these legislators.
Sadly Congress is allowing the separation of powers, and checks and balances to fade into oblivion, and the judges in some cases are acting, “with all the violence of an oppressor," and are setting public policy.
Examples will follow in the next newsletter along with what the founders had to say about impeachment .
*All quotes from the Federalist Papers are from: The Federalist Papers in Modern Language, Edited by Mary E. Webster, unless otherwise stated.
** See Art. III, Sect. 1 and 2/clause 2, of the US Constitution – see link to right.
Webster's 1828 Dictionary
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