We Must Prepare to Assume Once Again the Full Responsibilities of Self-Government
Some snapshots from the early American republic:
Monday, July 29, 1793. A jury acquitted Gideon Henfield of charges that he violated the law of nations by serving aboard a French privateer. (For full accounts of Henfield’s case, see Stewart Jay, Most Humble Servants: The Advisory Role of Early Judges 127-28, 138-42 (1997); William R. Casto, The Supreme Court in the Early Republic 130-36 (1995); Stephen B.Presser, The Original Misunderstanding 68-76 (1991)). The facts of Henfield’s case were uncontested, and his defense turned on a point of law. Henfield argued that it was unconstitutional to prosecute him because his actions were not proscribed by any existing statute or law of the United States. The court—consisting of Supreme Court Justices James Wilson and James Iredell and District Court Judge Richard Peters—instructed jurors that Henfield’s defense was legally frivolous. It was the “joint and unanimous opinion of the court,” Wilson told them, that Henfield’s acts might be culpable as common law offenses against the United States. (Petit Jury Charge, in United States v. Henfield, 11 F. Cas. 1099, 1119-20 (C.C.D. Pa. 1793)(No. 6360)). The jury disagreed, and its verdict triggered celebrations throughout the nation. John Marshall reports that Henfield’s acquittal was greeted with “extravagant marks of joy and exultation” by a public that doubted the administration’s position. (2 John Marshall, The Life of Washington 273-74 (1807)). Bonfires were lit and feasts held in cities and towns from Maine to Georgia. In Charleston, South Carolina, a “number of respectable citizens” followed an evening of “great hilarity and harmony” by toasting “[t]he patriotic jury of Philadelphia who acquitted Gideon Henfield, and supported the rights of man. (Three cheers.)” (Republican Society of South Carolina, Toasts Drunk on a French Victory, Aug. 29, 1793, quoted in The Democratic-Republican Societies, 1790-1800: A Documentary Sourcebook of Constitutions, Declarations, Addresses, Resolutions, and Toasts 380 (Philip S. Foner ed. 1976). The National Gazette praised Henfield’s jury for upholding the Constitution against a court and an administration whose views had been corrupted by “motives of policy”:
When the seven bishops (good and celebrated men) were tried for petitioning James the Second, a similar difference of opinion arose between the bench and the jury, the people then as the people now exulted in the verdict of acquittal; and our posterity will, probably, venerate this as we venerate that jury, for adding to the security of the rights and liberties of mankind. (National Gazette, August 3, 1793, quoted in Richard Buel, Jr., Securing the Revolution: Ideology in American Politics, 1789-1815, at 25 (1972)).
The above paragraphs are from Larry D. Kramer “The People Themselves Popular Constitutionalism and Judicial Review” (Oxford, 2004), pp. 3-4.
The Equal Rights Party asks: Why are we allowing non-elected monarchies make decisions on our behalf without accountability or responsibility? Where was the spirit of Henfield in the recent Kelo decision where the Supreme Court allowed a city government take the homes of poor people for "public use" against their wishes. How can you call "public use" the allowing of a private developer to take over the property of others for his own enrichment at the expense of the people who were not powerful enough to stop him and his political yes-persons who live in his pocket?
I SAY: NEVER AGAIN!
Gonzalo
As Kramer states:
To control the Supreme Court, we must first law claim to the Constitution ourselves. This means publicly repudiating Justices who say that they, not we, possess ultimate authority to say what the Constitution means. It means publicly reprimanding politicians who insist that "as Americans" we should submissively yield to whatever the Supreme Court decides.
In reclaiming the Constitution, we reclaim the Constitution's legacy as, in Franklin D. Roosevelt words, "a layman's instrument of government" and not "a lawyer's contract." (Franklin D. Roosevelt, Address on Constitution Day, Washington, D.C., Sept. 17, 1937, in 6 The Public Papers and Addresses of Franklin D. Roosevelt 359, 362-63 (Samuel I. Rosenman, ed., 1941)). Above all, it means insisting that the Supreme Court is our servant and not our master: a servant whose seriousness and knowledge deserves much deference, but who is ultimately supposed to yeild to our judgments about what the Constitution means and not the reverse. The Supreme Court is not the highest authority in the land on constitutional law. We are.
Kramer, pp. 247-48.
Monday, July 29, 1793. A jury acquitted Gideon Henfield of charges that he violated the law of nations by serving aboard a French privateer. (For full accounts of Henfield’s case, see Stewart Jay, Most Humble Servants: The Advisory Role of Early Judges 127-28, 138-42 (1997); William R. Casto, The Supreme Court in the Early Republic 130-36 (1995); Stephen B.Presser, The Original Misunderstanding 68-76 (1991)). The facts of Henfield’s case were uncontested, and his defense turned on a point of law. Henfield argued that it was unconstitutional to prosecute him because his actions were not proscribed by any existing statute or law of the United States. The court—consisting of Supreme Court Justices James Wilson and James Iredell and District Court Judge Richard Peters—instructed jurors that Henfield’s defense was legally frivolous. It was the “joint and unanimous opinion of the court,” Wilson told them, that Henfield’s acts might be culpable as common law offenses against the United States. (Petit Jury Charge, in United States v. Henfield, 11 F. Cas. 1099, 1119-20 (C.C.D. Pa. 1793)(No. 6360)). The jury disagreed, and its verdict triggered celebrations throughout the nation. John Marshall reports that Henfield’s acquittal was greeted with “extravagant marks of joy and exultation” by a public that doubted the administration’s position. (2 John Marshall, The Life of Washington 273-74 (1807)). Bonfires were lit and feasts held in cities and towns from Maine to Georgia. In Charleston, South Carolina, a “number of respectable citizens” followed an evening of “great hilarity and harmony” by toasting “[t]he patriotic jury of Philadelphia who acquitted Gideon Henfield, and supported the rights of man. (Three cheers.)” (Republican Society of South Carolina, Toasts Drunk on a French Victory, Aug. 29, 1793, quoted in The Democratic-Republican Societies, 1790-1800: A Documentary Sourcebook of Constitutions, Declarations, Addresses, Resolutions, and Toasts 380 (Philip S. Foner ed. 1976). The National Gazette praised Henfield’s jury for upholding the Constitution against a court and an administration whose views had been corrupted by “motives of policy”:
When the seven bishops (good and celebrated men) were tried for petitioning James the Second, a similar difference of opinion arose between the bench and the jury, the people then as the people now exulted in the verdict of acquittal; and our posterity will, probably, venerate this as we venerate that jury, for adding to the security of the rights and liberties of mankind. (National Gazette, August 3, 1793, quoted in Richard Buel, Jr., Securing the Revolution: Ideology in American Politics, 1789-1815, at 25 (1972)).
The above paragraphs are from Larry D. Kramer “The People Themselves Popular Constitutionalism and Judicial Review” (Oxford, 2004), pp. 3-4.
The Equal Rights Party asks: Why are we allowing non-elected monarchies make decisions on our behalf without accountability or responsibility? Where was the spirit of Henfield in the recent Kelo decision where the Supreme Court allowed a city government take the homes of poor people for "public use" against their wishes. How can you call "public use" the allowing of a private developer to take over the property of others for his own enrichment at the expense of the people who were not powerful enough to stop him and his political yes-persons who live in his pocket?
I SAY: NEVER AGAIN!
Gonzalo
As Kramer states:
To control the Supreme Court, we must first law claim to the Constitution ourselves. This means publicly repudiating Justices who say that they, not we, possess ultimate authority to say what the Constitution means. It means publicly reprimanding politicians who insist that "as Americans" we should submissively yield to whatever the Supreme Court decides.
In reclaiming the Constitution, we reclaim the Constitution's legacy as, in Franklin D. Roosevelt words, "a layman's instrument of government" and not "a lawyer's contract." (Franklin D. Roosevelt, Address on Constitution Day, Washington, D.C., Sept. 17, 1937, in 6 The Public Papers and Addresses of Franklin D. Roosevelt 359, 362-63 (Samuel I. Rosenman, ed., 1941)). Above all, it means insisting that the Supreme Court is our servant and not our master: a servant whose seriousness and knowledge deserves much deference, but who is ultimately supposed to yeild to our judgments about what the Constitution means and not the reverse. The Supreme Court is not the highest authority in the land on constitutional law. We are.
Kramer, pp. 247-48.
posted by Gonzalo I. Vergara | 9:05 PM
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