Bills Quills and Stills

 

BILLS, QUILLS and STILLS

 

AN ANNOTATED, ILLUSTRATED, AND ILLUMINATED HISTORY OF THE BILL OF RIGHTS

 

By Robert J. McWhirter 

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Robert J. McWhirter

Robert J. McWhirter is a nationally and internationally known speaker and author on trial advocacy, immigration law, and the history of the bill of rights.

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Despite claims, Cruz doesn’t understand Constitution, role of courts

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“Time to rein in the United States Supreme Court,” pronounces Ted Cruz, junior senator from Texas, self-professed disciple of Originalism and aspiring presidential candidate. Cruz held hearings to stop the high court’s “lawlessness” and “judicial tyranny,” which he titled “With Prejudice: Supreme Court Activism and Possible Solutions.”

This has nothing to do with the court’s conservative rulings on guns, campaign spending and blocking the Environmental Protection Agency. Cruz’s search for “options the American people have to rein in judicial tyranny” responds only to the Obamacare and same-sex marriage decisions: “Much to my great disappointment this past term, the court crossed a line and continued its long descent into lawlessness to a level that I believe demands action.”

 

Time to change the Constitution, opines Cruz, to stop the Supreme Court from “declar[ing] itself as a super legislature.” His suggestions include: judges running for retention every eight years, giving justices term limits, allowing a majority of states to override the Supreme Court and allowing a two-thirds vote of Congress to overturn the Supreme Court.

Yet Cruz incredibly claims to be an Originalist — someone who believes we should read the Constitution as the Framers intended. Although the Framers did not write out the court’s power of judicial review, they provided for the judicial branch, intending it to do just that. Our country began with the Declaration of Independence’s indicting King George III’s attack on judicial independence: “He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.”

The Framers provided for a judicial branch exactly because the Articles of Confederation had none. James Madison, father of the Constitution and Bill Of Rights, recognized the problem of protecting individual rights: “Repeated violations of these parchment barriers have been committed by overbearing majorities in every state.”

Federal courts were the answer, as Madison explained in The Federalist Papers: “[I]ndependent tribunals of justice [who would] consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against any assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.”

Madison’s Federalist Papers co-author, Alexander Hamilton, noted the value of a Supreme Court over the states to provide national unity: “Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government from which nothing but contradiction and confusion can proceed.”

The courts are the best guardians of rights because, he said, the court “has no influence over either the sword or the purse [and is] beyond comparison the weakest of the three departments of power.”

Madison, Hamilton and the rest of the Framers did not work in a vacuum. English common law and constitutional custom gave us a powerful tradition of judicial review. In 1610, Chief Justice Court of Common Pleas Sir Edward Coke in Dr. Bonham’s Case held a court could find the common law trumps Parliament. A generation later, John Lilburne’s Agreement of the People (1647-1649) noted constitutions trump Parliament. A century later, William Blackstone’s “Commentaries” provided natural law trumps Parliament because “no human legislature has power to abridge or destroy . . . [t]hose rights which God and nature has established.”

From this tradition, the Framers created the federal courts with the power of judicial review.

Sure, there were dissenters. John Rutledge of South Carolina argued that federal courts are an “unnecessary encroachment on the jurisdiction [of the states].” Patrick Henry, who opposed the whole Constitution, argued: “I see arising from the extensive jurisdiction of these paramount Courts, the State Courts must soon be annihilated.” Because Rutledge and Henry lost, we today have the U.S. Constitution.

Possibly Cruz will point to President Thomas Jefferson’s reaction to Marbury v. Madison (1803), in which Jefferson’s cousin, Chief Justice John Marshal, established the prevailing concept of judicial review. Jefferson was unhappy because the Federalists stacked the courts with Jefferson opponents. The Constitution, Jefferson grumbled, was now “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

But 10 years before on March 15, 1789, Jefferson wrote to Madison that a bill of rights is good because of “the legal check which it puts into the hands of the judiciary.” Of course, Jefferson at the time was not in power and had not lost before the court.

As any Jefferson historian will attest, the slaveholding declarer that “all men are created equal” could be wildly inconsistent if not hypocritical. First extolling the judiciary as a “legal check” to guarantee rights and later bemoaning the court’s power of judicial review because he didn’t like the ruling is classic Jefferson. In this affinity to Thomas Jefferson, Sen. Ted Cruz appears an originalist after all.

Robert J. McWhirter is a well-regarded criminal defense and constitutional lawyer based in Phoenix. He is the author of “The Criminal Lawyer’s Guide to Immigration Law,” now in its second edition (ABA Press 2006), and the just-released “Bills, Quills and Stills: An Annotated, Illustrated and Illuminated History of the Bill of Rights” (ABA Press 2015).

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