In the Founder’s Corner
Scott N. Bradley
Part Four of a Seven Part Series
The first three parts of this seven part series touched upon the fact that the Founding Fathers of this nation recognized that our rights come from God, that it is the purpose of government to preserve those rights, that the founders considered the United States Constitution to be a written, binding contract so sacred that all who hold office are required to take an oath to uphold, and that the scope of the national government was limited to the specific powers enumerated in the United States Constitution, and no more.
The fifth broad-brush point is that the Founding Fathers were careful to create Checks and Balances between all the different departments of the national government—Powers are distributed, powers are broken up; and in some instances shared. But in no instance does the Constitution allow encroachment between the departments of the national government which would allow power to grow into tyranny.
James Madison suggested the means to prevent this universal tendency to seek to concentrate power, saying:
“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” (Federalist No. 51)
So, the intention of the Founding Fathers was to put checks in place whereby the departments would block attempts by other departments to overstep their bounds.
And although many assume that they understand the checks and balances concept, most do not clearly understand how broad and powerful these checks and balances are. The power even exists to rein in the rogue federal court system which currently violates the scope of power granted to them.
Article III of the Constitution defines the scope and power of the United States Supreme Court, noting specific cases in which the Court has “original jurisdiction.” Within the scope specifically defined within the Constitution, the Supreme Court can not be denied authority to act. However, the authors of the United States Constitution placed “checks and balances” within the Constitution on the Court. Certainly Article III, Section 2 Clause 2 of the United States Constitution defines a “check and balance” which was created to prevent the court system from usurping power. It states specifically:
“In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Regardless of opinions to the contrary, the United States Constitution actually states: “...with such Exceptions, and under such Regulations as the Congress shall make.” We often speak of the “checks and balances” that were so wisely written into the document to prevent power from being consolidated into tyranny, but almost no one recognizes this “check” which may be exercised to balance against a usurping court.
And, of course, the Constitution delegates to the Congress authority over the existence of all federal courts inferior to the Supreme Court (see Article I Section 8 clause 9 and Article III Section 1). While Article III Section 2 of the United States Constitution delegates specific authority for Supreme Court involvement in certain specified instances, it seems certain that in cases not specifically enumerated within the Constitution that the United States Congress has the authority to rein in the rogue court system which currently exists by simple majority vote in both the House and Senate. By exercising this rarely-used authority, the United States Congress could remove specific cases from the purview of the federal court system if the federal court system began to usurp authority in those cases.