November 14 , 2005

Following the Harriet Myers debacle, President Bush nominated Samuel Alito of the Third Circuit Court of Appeals to replace Justice Sandra Day O'Connor on the United States Supreme Court. During the press conference announcing his candidacy, Judge Alito stated:

"Every time that I have entered the courtroom during the past 15 years, I have been mindful of the solemn responsibility that goes with service as a federal judge. Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans."

Let's review Alito's first at bat for Team Supreme Court and see how he did.

First pitch, strike one. The Constitution does not vest the federal judiciary with the power to interpret the Constitution. This assertion is the ultimate insult. It infers that the Constitution was written in some biblical code and only federal judges have the intellectual capacity to translate the text and explain it to us mere mortals.

The Constitution is not difficult to understand. It is simply a contract or compact between the several States. The federal government is not a party to that agreement. It is merely an agent, created by the States, via the Constitution, and empowered to represent the collective interests of the States. Judge Alito would have us believe that the agent, who was created by the contract and derives all its power from the contract, was given the power to translate and explain the meaning of the contract to the principals who wrote it. In other words, the agent, who is not a party to the contract, has the power to determine the intent and scope of the powers granted to it by principals via the contract. And to add insult to injury, the agent would have us believe that the principals, whose delegates wrote and adopted the contract, are bound by the decisions of their agent. This would make the agent superior to the principals and turn this aspect of contract law upside down.

It would be absurd to claim that a branch of the federal government was granted the constitutional authority to determine the extent of federal power. If the federal judiciary possessed this power, then the Constitution would cease to exist as a written document because judicial discretion, not the Constitution, would be the measure of federal power.

The underlying reason why the federal judiciary was not granted the authority to interpret the Constitution was stated very succinctly by John Marshall who would later become Chief Justice of the United States Supreme Court: "the judicial power cannot extend to political compacts." Since the Constitution is a political compact between the several States, and the federal government is not a party to that compact, it lacks the constitutional authority to interpret the compact, or decide, in the last resort, the extent of the powers granted to it by the compact. Only the principals, who wrote and adopted the compact, possess that power.

Second pitch, strike two. There is no provision in the Constitution or the Bill of Rights that created any individual or so-called constitutional rights. As stated by Thomas Jefferson in the Declaration of Independence, individual rights originate from a higher source than government or a written constitution.

The preamble to the Bill of Rights states that the Amendments were being proposed to prevent the federal government from "misconstruing or abusing its powers." To accomplish this, "further declaratory and restrictive clauses" were being recommended. The Amendments, when adopted, placed additional restraints on the powers of the federal government. Since the Amendments did not create or grant any individual rights, but placed prohibitions on the powers of the federal government, the rights enumerated in the Bill of Rights cannot be construed as "constitutional rights." Based on the wording of the preamble, the Amendments placed "constitutional prohibitions" on the powers of the federal government to prevent that government from "misconstruing or abusing its powers" concerning the individual rights of the people.

Third pitch, strike three. The federal government was not granted the power to protect the so-called "constitutional rights" of the American people. As stated above, the Bill of Rights did not create any constitutional rights. Therefore, the federal government cannot have the power to protect something that does not exist. This is further supported by the fact that every one of the Amendments constitute a denial of power, not a grant of power.

The Bill of Rights enumerates individual rights that exist independent of the Constitution and denies the federal government the general authority to infringe those rights. The Amendments are simply an extension of the system of limited government established by the Constitution in an enumerated form.

Since the Bill of Rights did not grant any individual rights, but placed additional prohibitions on the powers of the federal government, neither that government, nor its courts, could have been granted the constitutional authority to secure the rights enumerated therein. It would be an absurdity to claim that the federal government had the power to determine the extent of enumerated prohibitions on its power. The sole purpose of the Amendments was to further restrain the powers of government.

Sorry Judge Alito, it's three strikes and you're out. President Bush, next batter please.

Note: the only provision of the Constitution that grants the federal government the power to secure individual rights is the so-called due process clause of the Fourteenth Amendment. This Amendment, which was adopted 77 years after the Bill of Rights, is a qualified grant of power, not a general grant of power.

Robert Greenslade focuses his writing on issues surrounding the federal government and the Constitution. He believes politicians at the federal level, through ignorance or design, are systematically dismantling the Constitution in an effort to expand their power and consolidate control over the American people. He has dedicated himself to resurrecting the true intent of the Constitution in the hope that the information will contribute, in some small way, to restoring the system of limited government established by the Constitution.

If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob

The Federal Government: Its True Nature and Character: Being a Review of Judge Story's Commentaries on the Constitution of the United States.

Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the consitution. Mr Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.

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