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THE TEMPLE OF KARNAK

How Rogue Judges Have Been

 Strangling Your Democracy

by

D. J. Connolly

Plum Creek Book Works

North Olmsted, Ohio

January, 2000

THE TEMPLE OF KARNAK

How Rogue Judges Have Been Strangling Your Democracy

by D. J. Connolly

Copyright © D. J. Connolly, 2000.

              All rights Reserved. Except for brief quotations from the written text, no part of this book may be reproduced or transmitted in any form or by any means, without written permission from the author.

Published by:

Plum Creek Book Works

North Olmsted, Ohio 44070

e-mail: pcbworks@worldnet.att.net

Internet: http://home.att.net/~pcbworks/TTOK1999A.html

ISBN NUMBER: 0-9673798-0-6

LIBRARY OF CONGRESS CATALOG CARD

  NUMBER: 99-95684

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              The temple at Karnak was the largest house of worship in ancient Egypt. It was built about 3500 years ago to honor a local prince. Back in the late 1930's, the U. S. Government built a new home for the Supreme Court. It was imposing and ornate. One justice is said to have observed, on viewing it, that they would all look like “nine black beetles in the Temple of Karnak.” So far, I’ve been unable to learn which justice was the source.

              The cover art is based on a side view of the main entrance to that building. The background was removed, using photo-editing software, and replaced by a full moon, a shark-filled-moat, and statues of kangaroos.

              The author is a reformed bureaucrat living in Northern Ohio.

ACKNOWLEDGMENTS

              The author is grateful to the following people who read various drafts of the manuscript and offered helpful comments:

Patricia Anderson

Art Anzic

Cyrus Boudreau

William H. Brown

Lenny Cavallaro

 Catherine Connolly

Mike Connolly

Hank Costello

Mark G. Higgins

The Reverend Philip Lesko

Lee Wilkins

George A. Wise

TABLE OF CONTENTS

BOOK I: OUR EVOLVING CONSTITUTION

INTRODUCTION                                                                                       9

CHAPTER 1: THE REIGN OF TERROR                                                15

CHAPTER 2: COMMON LAW MISCHIEF                                          21

CHAPTER 3: THE ULTIMATE APHRODISIAC                                 25

CHAPTER 4: ONE-AND-ONE-HALF CENTS PER ACRE                  31

CHAPTER 5: A SCAM IS BORN                                                           39

CHAPTER 6: THE MOTHER OF ALL LOOPHOLES                          43

CHAPTER 7: OFF TO SEE THE WIZARD                                           49

CHAPTER 8: VIKING JURISPRUDENCE                                             55

CHAPTER 9. JOHN MARSHALL’S PROMISE                                   63

BOOK II: ACLUISM FOREVER

CHAPTER 10: RIGHT CRIME, WRONG CRIMINAL                          71

CHAPTER 11: A NEW MISSION IN LIFE                                             77

CHAPTER 12: SPIRITUAL AND MORAL GUIDANCE                      83

CHAPTER 13. HAVE YOU NOTICED THE NEW ERA?                     89

CHAPTER 14: THE GRAND INQUISITOR                                            93

BOOK III: EQUAL CHILD ABUSE

CHAPTER 15: VIKING JURISPRUDENCE, PART 2                              97

CHAPTER 16: THE HOSTAGE THEORY                                              101

CHAPTER 17: FORTY-SIX FELONS ON THE PAYROLL                   105

CHAPTER 18: THREE-BILLION DOLLAR TAJ MAHALS                109

CHAPTER 19: IT’S ALL YOUR FAULT                                                113

CHAPTER 20: THOROUGH AND INEFFICIENT                                 119

BOOK IV: CRUEL AND UNUSUAL CRIME RATES

CHAPTER 21: VIKING JURISPRUDENCE, PART 3                             125

CHAPTER 22: THE ROOT CAUSES OF CRIME:

                              ACTIVIST JUDGES                                                     129

CHAPTER 23: CRUEL AND UNUSUAL PRISONS                              137

BOOK V: LIFE AND DEATH IN THE

PRINCIPALITY OF JUDGES

CHAPTER 24: CRUEL, BUT NOT UNUSUAL,

                              JUDICIAL BUNGLING                                                143

CHAPTER 25: PENUMBRAS AND EMANATIONS                           149

CHAPTER 26: A HIDDEN PAYOFF                                                       155

CHAPTER 27: THE INTEGRITY OF THE COURT                                159

BOOK VI: DEMOCRACY ON LIFE SUPPORT

CHAPTER 28: POLITICALLY CORRECT WAYS

                             TO BRIBE JUDGES                                                       165

CHAPTER 29: THE NEW FEDERALISTS                                              169

CHAPTER 30 LET’S NOT CALL IT USURPATION                             173

CHAPTER 31: ASYLUM ON THE POTOMAC                                     177

CHAPTER 32: DESIRABLE POLICY RESULTS                                     179

CHAPTER 33: AND ALL SHALL BE USURPED                                   185

NOTES AND CITATIONS                                                                         191

APPENDIX: THE U. S. CONSTITUTION                                                219

BIBLIOGRAPHY                                                                                          239

INDEX                                                                                                           247

BOOK I

OUR EVOLVING CONSTITUTION

INTRODUCTION

        Imagine that you live in Plum Creek, a fictitious, medium size town somewhere in the United States. It has two high schools, East High and West High. The rivalry between the two schools’ football teams has been a major feature of local culture for decades. Last year, a youngster living next door to your home was playing on the West High team. He invited you to attend the season finale, the game against East High. It began with the usual rules. However, East High couldn’t seem to move the ball. It had big, strong players but they were slow, and they had no passing game.

        The referees reacted by announcing some rule changes. From now on, a team only needed thirty-nine and one half inches for a first down. And it had five attempts rather than four, but only if it didn’t try a pass play. Any forward pass would end a series of downs.

        People sitting near you in the stands were quite upset about the changes. They were aware that two of the three referees were uncles, and the third a next door neighbor, of East High players. A committee elected by all the coaches in your part of the state had hired the referees. But they had long term contracts. Any attempt to get rid of a biased referee was almost hopeless.

        The committee had also written a rule book, and all the coaches had then voted to adopt it. It stated that no rule could be changed without the written approval of three-fourths of the coaches. The book also said, "A first down requires an advance of ten yards or more in no more than four plays." It didn’t say anything about special limits on pass plays.

        When irate fans complained, the referees brushed them off. "You don’t understand the rule book,” they said, “it’s a living document which evolves to meet the needs of changing times. Only we can perceive its deeper, subtle meaning.”

        You have just read a rough description of U. S. Supreme Court jurisprudence.

THE EVOLVING CONSTITUTION SCAM

        Just as we trust football referees to make honest calls, we trust Supreme Court justices to interpret the Constitution. The Constitution didn’t assign them that power. They just claimed it, and we accepted the claim.

        However, they routinely find novel and disturbing material in it that was never put there by people we elected. So tens of millions of Americans no longer trust them. You might be surprised to learn that many legal experts,

and even judges, admit that the loss of trust is well deserved. They admit that Supreme Court rulings are often based on partisan bias. They admit that most of what the Supreme Court now claims to find in the Constitution was really made up by the justices themselves.

        Most legal experts aren’t distressed by this, they’re pleased. They think that “We the People” is not competent to elect folks who will enact wise laws. The folks we elect can take care of minor day to day government functions, but only courts can be trusted to design the policies that shape the future of our society.

        That’s the view long held by many American elites. But they know they need a different story line for the general public. So they tell us that we have a “living” Constitution which “evolves.” It evolves under the wise and loving guidance of judges to meet the needs of changing times. Amending it when needed, using the method our founders set forth in Article V, would be much too unwieldy. It would also lead to unwise changes driven by the passions of fickle and intemperate majorities.

        That, in a nutshell, is the evolving Constitution scam. The word “scam” fits because the metaphor of evolution involves deception. The processes by which courts “evolve” our Constitution are not at all like the natural processes described by the theory of evolution.

        Now we’re not going to discuss the philosophical basis of the theory of evolution. And we’re not going to get into whether or not it’s proven science. For purposes of this discussion, let’s just agree that it’s been around a long time, and that most Americans accept its basic elements. That makes it a politically astute model for one to use, if one is trying to justify stealth rule by courts. The metaphor of “evolution” makes the process seem natural and unplanned.

STARE DECISIS

        One can’t understand how the scam works without first understanding “stare decisis,” a concept we inherited from English common law. According to Black’s Law Dictionary, stare decisis is a Latin term. It means “to abide by, or adhere to, decided cases.” Most of the time judges follow, or at least pretend to follow, earlier precedents in their decisions. They do that for the same reason umpires stick to bad calls. Defending judicial power is their highest priority.

        In sports, a bad call usually ruins only one play. The rule of stare decisis, however, writes every bad call into the rule book. It demands that existing rules be replaced by others which legitimize the bad call. That has some profound consequences which I’ll describe a few paragraphs below.

THE THEORY OF EVOLUTION

        According to the theory of evolution, living species slowly disappear and are replaced by others. Dramatic changes can occur over very long times. For example, some life scientists believe that modern birds evolved from dinosaurs.¹

        The theory depends on two key ideas, “random mutations” and “natural selection.” Natural selection is just another way of saying “the survival of the fittest.” Mutations are genetic accidents. The theory of evolution holds that the mutants occur randomly, that is purely by chance.

        In nature, most mutants are defective in some important way. So they and their progeny, if any, don’t survive very long. However, according to the theory, a mutant sometimes comes along that the genetic accident has rendered more fit to survive than its normal brothers and sisters. It survives and passes on its genes to its offspring. So they also are more fit to survive than their competitors. After many generations, they’re the only members of their species still around. Nature has selected, for long term survival, those most fit.²

        There are two big differences between the theory of evolution, as it originated in the life sciences, and the story line that’s used to justify the “evolving Constitution.” First, the mutations fathered by judges are not random. A special interest group conspires to amend our Constitution without obtaining the consent of the people. The group’s lawyers take their scheme to our judicial branch of government. In many cases it gets all the way to the U. S. Supreme Court.

        For various reasons, a majority of the nine people on the Court like the scheme. Corrupted by their partisan biases, they hand down a decision that defies the plain meaning of the Constitutional passages they invoke to support it. That sums up the first difference. Five or more justices give birth to a mutant that is not “random.” It issues forth from a conspiracy.

        The second difference has to do with the selection process. Stare decisis does not select, for survival, only those few mutants that are most fit. It selects them all. Perfectly good parts of our living Constitution get replaced by strange beings that, in many cases, are much less fit. Our Constitution “evolves” in bizarre directions. It’s as if all the songbirds became extinct and were replaced by herds of dinosaurs.

EIGHT THEMES OF THE TEMPLE OF KARNAK

        Let me remind you of some obvious political realities. In exercising their power to appoint judges, presidents have usually picked candidates mainly for their partisan bias and party connections. Therefore, in the competition for

        This fact, together with the freedom from external control enjoyed by judges on our higher courts, has led to a judiciary which becomes more corrupt and despotic with each passing decade. Its corruption has now reached crisis proportions. That crisis, and the “train of abuses and usurpations” which led to it, are the subjects of The Temple of Karnak.³

        The book has eight main themes which are briefly summarized below.

■       Article I of the federal Constitution says that only Congress has “legislative power,” the power to pass laws. Article III says that the role of judges is limited to deciding “cases” and “controversies.” It says nothing about allowing judges to make new laws. Article V specifies the only legal process by which our Constitution can be amended. In spite of these mandates, judges make most of the really important new laws. And, ignoring Article V, they amend the Constitution several times each year.

■       It’s been half-a-century since our Supreme Court made a credible pretense of construing the Constitution in accordance with the intent of its framers. That gives rise to a dismaying problem. “We the People” have no say respecting the contents of our Constitution. And those who wrote it had no say in the matter either. Only judges have a say.

■       Over the course of our history, judicial usurpation of lawmaking power has led to a mind-boggling list of national catastrophes. Part of the list appears on the back cover of this book.

■       The practice of following precedents has led to the “evolution” of a quarter-of-a-million-page counterfeit Constitution which judges follow rather than the real one.

■       Our judicial branch of government has stolen a role similar to that of ancient kings and princes. Rogue judges gained despotic power by using methods found in Machiavelli’s The Prince, the same handbook which guided Hitler, Mussolini, and Stalin.

■       In flagrant violation of the First Amendment, federal courts have established a preferred national religion, and restrict our free exercise of our own religions.

■       A gross excess of judicial power has spawned a large and perverse judicial usurpation industry which promotes, protects, and feeds upon it.

■       If our democracy isn’t dead already, it’s on life support. Outlaw judges have corrupted other government institutions by stealing many of their most important functions. That, in turn, is a major cause of voter apathy.

        Most lawyers and intellectuals will tell you the above statements are nonsense. The laws and the Constitution, which judges are required to follow,

        A minority of legal scholars do not agree with that position. They complain, in books, articles, and court opinions, about how corrupt our legal processes have become.⁴ They say judges should honor their oath to uphold the Constitution. Otherwise, stealth rule by courts will destroy our democracy.

        Legal scholars have argued both sides of this debate for many years. Those who object to stealth rule by courts almost always lose. The judges vote in favor of stealth rule and they have all the clout. Nobody is in a position to keep them honest.

        Most Americans never have a chance to take part in the debates. The debaters use obscure legal jargon. And their statements do not receive balanced treatment in the mainstream media. This book will translate the jargon into plain English. And it will present the side of the debate one hardly ever hears. You have a right to know what’s being done to you.

CHAPTER 1

THE REIGN OF TERROR

        About four thousand years ago, the Babylonian King, Hammurabi, gave the world its first written code of laws. A copy was found in Iraq in 1901. It contained twenty-eight paragraphs engraved on an eight-foot high block of stone. One can still view it in the Louvre in Paris.¹

        We were taught in school that Hammurabi's code was one of the most important social advances in all of history. It was important because written laws help keep the judges honest. They make it harder to hide corrupt and biased rulings. We were also taught that America is blessed with a written Constitution which the people can amend, as needed, acting through those we elect to represent us. And we learned that federal judges are appointed to apply the Constitution and the laws to specific cases. Most Americans, most of the time, trust them to impartially fulfill that responsibility.

        A likeness of Hammurabi appears on a wall inside the U. S. Supreme Court building. Supreme Court justices claim him as their forefather. They proudly cite our written Constitution as the basis of their authority. They claim to be its faithful servants and they have all taken oaths to uphold it. However, they violate their oaths with impunity. They’ve been doing it for more than 200 years.

        In 1791, the people added a Bill of Rights to their brand-new Constitution in order to keep the federal government honest. It was big and far away. Having just got rid of a tyrannical English government, they feared the new federal government’s potential to breed domestic tyrants. The ink was hardly dry on the Bill of Rights when federal judges acted to defy it.

        The First Amendment said, "Congress shall make no law . . . abridging the freedom of speech, or of the press." During the 1790's, leaders of the Federalist party, which was then in control, were losing the public's trust. The people were shifting their loyalty to Thomas Jefferson's Republican Party.²

        The Federalists decided to silence their critics. They harassed the Republicans by charging them with libel and slander under English common law. Federalist judges ran trials so plainly unjust they were comical. The juries were packed with Federalists, which the judges subjected to angry speeches intended to inflame anti-Republican passions.

        They refused to admit evidence which showed that the claimed libel was true. They also refused to allow defense counsel to point out that the First Amendment protected the criticism in question. A historian, named Bowers, has described the conduct of federal judges, during the 1790's, as a "reign of terror."³

        The people reacted to the reign of terror with dismay and anger. The Federalists saw their public relations getting even worse. So, in 1798, their majority in Congress passed the infamous Sedition Act. It provided the cover of statute law for federal judges to continue persecuting their opponents. The Sedition Act outlawed written or spoken criticism of government officials. It equated such speech or writings with treason. It was exactly the sort of law that the First Amendment was intended to forbid.

        Federal judges then continued their reign of terror under the Sedition Act. They refused to allow defense lawyers to argue that it violated the First Amendment. They continued to pack juries and subject their members to angry speeches. In some cases they even defied the Sedition Act and used the English common law instead. It permitted harsher penalties and allowed them to operate free of annoying rules.³

        The most visible offender was a character named Samuel Chase. He subjected juries to more colorful tirades than did any other judge. I’ll say a lot more about Chase in Chapter 4.³

        The Federalists had passed the Sedition Act partly because they thought trying folks for sedition under English common law was the big problem. They thought an American statute would be more palatable. It didn’t really help. The actions of Federalist judges continued to appall the people. Short of another revolution, however, no way could be found to get rid of them. So the people did the next best thing. In the election in 1800, they got rid of President John Adams and many Federalists in Congress.

        Federalist judges were still in office, but they felt exposed. Their recent victims now controlled Congress and the Presidency. So they assumed a lower profile for a while. The Sedition Act expired and the reign of terror ended. That doesn’t mean our judicial branch of government reformed. It still defies the Bill of Rights today.

GOD SAVE THE KING

        In ancient England, judges stood in place of the king. So contempt for the judge was contempt for the king. English judges had the power to make one pay dearly for “contempt of court.” American judges wanted that power too, so they so they just assumed it.

        Contempt of court is the only crime in America that can get you jailed without a jury trial. If you commit murder, rape, kidnaping, or treason, you have a right to a jury trial. However, if he charges you with contempt of court, a judge can throw you in jail with no trial at all. And he might keep you there for months or perhaps even years.

        Our Constitution doesn’t mention contempt of court. It’s a medieval

        Article III, Section 2 says in part, "The trial of all Crimes, except in cases of Impeachment; shall be by Jury.” The Sixth Amendment says in part "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." The founders also intended the words "due process," in the Fifth and Fourteenth Amendments, to include trial by jury. Rogue judges decided to ignore all that. This practice is justified under ancient English law, they said. Therefore, it’s OK.

        In early 1996 a Chicago judge threatened to jail a 15-year-old girl and her 12-year-old brother for refusing to visit their father. Actually their "crime" was failing to obey the judge. The news article did not mention a jury trial.⁴ Maybe the kids should visit their father. Who knows? Maybe the court should have a way to put pressure on them. However, our judges should obey the Constitution. If it is unworkable, we can amend it. All they have to do is convince us that amending it would improve things.

        Contempt-of-court stories are varied and endless. Between 1984 and 1999 seventeen newspaper reporters were jailed, without jury trials, for refusing to disclose their sources.⁵ A judge in Florida jailed a lady because she ran sobbing from his courtroom.⁶

        In the late 1990's, a federal judge sentenced a woman, named Susan McDougal, to serve eighteen months in jail for contempt of court. She had refused to testify in certain grand jury proceedings. After the eighteen months were up, they decided to have a jury trial. The trial, in which Susan was charged with essentially the same offence, ended in a hung jury.⁷

        In 1988, a federal judge ordered the city council of Yonkers, New York to pass an ordinance approving some public housing that the people didn’t want in their town. When the ordinance came up for a vote, a majority of the council members voted no. The judge then issued a court order setting forth the following bizarre penalties for continued non-compliance.⁸

■       The city would pay a fine that began at $100 the first day and doubled every day thereafter. By the end of a month, the cumulative fine would be about $26 billion. I didn’t compute the total the fine would reach after two months. However, I can assure you it exceeds the national debt, the gross national product, and the cost of World War II combined.

■       The uncooperative council members would face fines of only $500 per day. But they’d go to jail if they didn’t vote right within ten days.

        The federal judge made no mention of a jury trial. However, he claimed

        An appeals court upheld the order but capped the fine on the city at a maximum of $1 million per day after the fifteenth day. The court wasn’t concerned about the Eighth Amendment or the “republican form of government” guarantee. It said that $26 billion might violate a judicial “abuse-of-discretion” standard.⁸

        There’s a subtle message here. Judges don’t need to worry about the Constitution. That’s a problem for other folks. Judges only need to worry about their self-imposed “standards.”

THE BOGUS CONSTITUTION

        Maybe the above described news accounts left out some important facts. Maybe the City of Yonkers was clinging to unjust policies. Maybe some of the people cited for contempt deserved to go to jail. Maybe they had committed real crimes. That, however, is beside the point. Disobeying the law is what makes a crime. The Constitution is the supreme law of the land. It requires judges, like the rest of us, to obey it, but they often refuse. A crime is a crime.

        Of course, one won’t find many lawyers who admit that the above described judicial actions are crimes. Jury trials take too long, they’ll say. If judges didn't have the tools they needed to keep things moving, courts would never get anything done. Amending the Constitution to fix the problem would be unwieldy. Besides the people might come up with an unwise fix. It’s better to arrange for a Supreme Court precedent.

        Please pardon a short digression while I explain Supreme Court precedents. By the middle of 1992 the Supreme Court's published opinions filled 504 volumes. The last one had 994 pages. Most of the earlier volumes were probably shorter because printing and bookbinding techniques had improved over time. Let’s assume the average volume was only about half as long as the last one.⁹ All 504 volumes, then, would contain about a quarter of a million pages (504 x 500 = 252,000).

        The rules of medieval English law entitle the judges to treat Supreme Court opinions, which claim to interpret the Constitution, as if they also were part of the Constitution. The real Constitution gets lost among some quarter-of-a-million pages of judicial delusion. Do you begin to see why the judges are so fond of ancient English law?

        Now I’ll get back to contempt of court precedents. The Supreme Court has given us several. In one case, in the mid 1960's, the Governor and Lieuten-

        After a while, the appeal got to the Supreme Court. It ruled that they had no right to a trial by jury. A minority wrote that "this was heresy and treason both to law and justice." However, the majority voted the other way and the precedent was set.

        In 1958, three justices had dissented in a similar case. The majority upheld a three-year sentence by a district judge for "criminal contempt." Writing for the dissenters, Hugo Black called this practice "akin to a despotic power." The majority saw it differently. They voted that the authors of the Constitution meant to trust judges with despotic power.¹⁰

        In the first case described above, the defendants were state officials enforcing racial segregation. In the other case they were communists. Maybe the Supreme Court only meant to allow judges to violate the Constitution to punish bad guys!

        Hah! In the mid 1960's, in Birmingham Alabama, a group of civil rights marchers defied a court order to stay off the streets on Easter Sunday. So the judge ordered them jailed. The court order barring the march clearly violated the First Amendment. So the judge who issued it had ruled contrary to the Constitution. Well, you say. The marchers should have just appealed.

        That wouldn’t have worked for them. Had they waited for an appeal to run its course, they would have been lucky to march by Halloween. They didn’t think that would have served to get the message out nearly as well as Easter Sunday. So they marched anyway. Why not? It was their constitutional right.

        The marchers’ lawyer appealed the jail sentence to federal court. In due course their appeal reached the Supreme Court. All nine justices agreed that the court order forbidding the march was unconstitutional. However, a majority also ruled that the contempt order was valid. The Supreme Court wanted to make the point perfectly clear. Judges are above the law. Judges are above the Constitution.¹⁰

ABOVE THE LAW AND THE CONSTITUTION

        In 1959, the U. S. Supreme Court heard an appeal of a murder conviction. A fellow named Vincent Spano had confessed to the police without a lawyer present.¹¹ The Supreme Court ruled that, due to his lack of legal counsel, he had been “compelled” to confess. And it ordered that Spano be freed. In the majority opinion, Chief Justice Earl Warren wrote, "the police must obey the law while enforcing the law."

        That quote suggests an obvious question. How about the judges? Do

        The Warren Court ruled that the law did not include judges even though it said "every person." The Court said that the English common law gave judges immunity for any offense which involved their official acts "even when a judge is accused of acting maliciously and corruptly." It explained that Congress couldn’t possibly be unwise enough to give up such a worthwhile "common law" principle.¹²

        So we have the Supreme Court's answer. Medieval English law created an ever lasting shield for ‘malicious and corrupt’ American judges.

CHAPTER 2

COMMON LAW MISCHIEF

        You probably know that much of the law used in American courtrooms came from English common law. One often wonders, however, why ancient law from a country run by kings should play such a big role in a modern democracy. This chapter will shed some light on that question.¹

        About 900 years ago, in medieval England, most courts were local. They tended to be bizarre and unpredictable, basing their decisions on combat or some other barbaric test. People with money or clout, who didn’t like that approach, got in the habit of appealing to the King whenever they had legal problems. That offered a more predictable and more final resolution of one’s dispute. The King had absolute power. If a law to fit your case didn’t exist, he could just make one up. And once he ruled, there was usually no appeal.

        The system had a down side. Kings were spending too much of their time hearing cases. Yet demand for the service still far exceeded the supply. In the twelfth century, an English king named Henry II decided to make some changes. He decided to appoint judges to hear cases in his name all over the country. Henry wrote down a few laws but, for the most part, he gave the judges a fairly free hand. He told them to avoid stirring up problems and to protect the king's interests.

        In effect, Henry II’s decision replaced local courts with an expanded version of the Royal Court. Now all of England had only one law, a "common" law. It did not always dispense justice, but at least you might be able to predict what it would dispense.

        Now don’t start thinking of Henry II as a twelfth century George Washington. He was the early king who had Archbishop Thomas a’ Becket murdered in his own cathedral.² You can bet the early common law judges didn’t want Henry sending somebody around to murder them too. So they paid attention to "precedent." They watched what happened when another judge handed down a decision. If the King did not complain, they all took note. In similar cases they prudently followed the earlier judge's lead. As a result, one could often predict the outcome of a case by studying the precedents.

        Sometimes there was no precedent. However, a common law judge couldn’t refuse to decide a case because it wasn’t covered by the law. He needed to guess how the King, who was the law, would handle it. English common law judges had, in effect, legislative powers. If no law covered a case, they could just make one up. Whatever the judge decided would be a precedent in future cases.

        In later years, the nobles placed limits on the power of kings. English

        The potential of English common law to nourish judicial mischief grew as it became more complex and diverse. It did not meet the needs of a modern democratic society. So England reformed it during the nineteenth century. Today English common law has a lot more influence in America than in England.³

        English colonists in America, prior to the Revolution, were naturally subject to English law. But then the American Revolution freed them from English authority. That's what they had a revolution to accomplish. So America was then free of the English laws. Doesn’t that make sense?

        American judges never saw it that way. They kept using medieval English laws anyway. English common law was judge-made law. While we were under English control, the King, or later Parliament, supervised them. So judges never had the last word.

        After the revolution, however, no effective agent of judicial accountability emerged to replace Parliament. Our new Constitution didn’t contain adequate measures to control renegade judges. Our founders had assumed that the judiciary would obey the law. That turned out to be a big mistake.⁴

        The judges saw an opportunity to exercise unchecked and unaccountable power. They could tell the people they were interpreting the Constitution, but operate from English common law, that is judge-made-law, instead. That's exactly what they’ve been doing for 200 years.

        You can read a more erudite account of common law mischief in the essay by Scalia.⁵

DOUBLE JEOPARDY IS USUALLY UNCONSTITUTIONAL

        Maybe you find it difficult to believe that federal judges place judge-made law above the Constitution. Let’s review some fairly recent court rulings concerning “double jeopardy.” See if you can explain those rulings any other way.

        In 1996, in Northeast Ohio, a U. S. District Court ordered the release of a man who had admitted raping a 3-year-old girl. A trial of the accused child rapist had begun, but quickly ended in a mistrial. In his opening speech, the defense lawyer had violated court rules. He had made a statement that the trial judge had previously ruled might bias the jury. So it was not allowed. When he made it anyway the judge declared a mistrial and ordered that they start over

        The defense lawyer then went to federal court. He claimed that starting over with a new jury subjected his client to "double jeopardy." The federal judge agreed and ordered the release of the defendant.⁶

        The double jeopardy language in the Fifth Amendment reads as follows: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The Amendment does not mention any exceptions nor does any other part of the Constitution. However, it's quite a stretch to claim that the alleged child rapist had been put in jeopardy even once. He certainly did not have a trial. Five percent of a trial is more like it. Neither side presented evidence or called witnesses. The jury gave no verdict. The judge did not pronounce a sentence. And the mistrial ruling resulted from a violation of court rules by the defendant's own lawyer.

        I guess we can’t really blame the federal district judge. A year or so later a federal appeals court blessed his ruling. So it must have been faithful to some absurd rule that higher ranking judges had adopted. However, that rule was not really based on the Fifth Amendment. The authors of the Fifth Amendment would have been astounded at this distortion.

        The extreme solicitude for double jeopardy shown in this case would suggest that our federal judiciary considers the rule absolute and inviolable. No exceptions, right?

        Well . . . maybe.

        In 1991, a witness videotaped two Los Angeles cops, Stacy Koon and Laurence Powell, beating Rodney King, a black suspect. The two cops said that King resisted their efforts to arrest him. TV news programs showed hand-picked segments of the tape. The parts they showed placed Koon and Powell in a very bad light. So the local DA accused them of a crime and they had a jury trial in 1992.

        The trial was held in a suburb and the jury was all white. Evidently Koon and Powell had an alert defense lawyer with good connections. The jury saw the entire tape, not only the parts shown on TV. The whole tape supported the charge that the cops used excessive force. But it also supported the defense claim that King was actively resisting arrest. Mr. King had a very long and colorful criminal record. Hours after the beating he still had a blood alcohol level well over the legal limit.

        The jurors knew that the city was a dangerous place for cops. Los Angeles County, at the time, had about four murders per day. It also had over 100,000 gang members. It was known that they deliberately targeted cops. Taking all this into account, the jury found Koon and Powell not guilty.⁷

        Sure the verdict was unjust. However, there’s nothing unusual about that. Judges, with or without the help of juries, turn loose much more dangerous guilty parties every day of the week. And Los Angeles still had the option of

        Politics, however, called for some special treatment. Mr. King’s supporters held the mother of all riots. They killed fifty-four people and injured about 2400. They looted and wrecked hundreds of businesses, setting over 500 fires and doing about one billion dollars worth of damage. The National Guard and U. S. Army had to help restore order.⁸

        Liberal politicians and journalists demanded action to appease the street mob. The judges looked around in their bag of tricks and found some stretch in the Constitution. They held a second trial, this time in federal court. No effort was spared to make sure that this trial would have a different outcome. They picked a jury from among the neighbors of the rioters. Nobody mentioned double jeopardy. Government lawyers, no doubt, found Supreme Court precedents to justify the second trial.

        The second criminal trial of Koon and Powell “for the same offence” had a different outcome. The jury said “guilty” and the judge imposed a long sentence.

        For several years afterwards, Rodney King kept popping up in the news. He sued the city of Los Angeles in a civil case and received a settlement of $3.8 million. Rodney used part of the money to become a recording executive. He started a rap music label named Straight Al-Ta-Pazz. Its first release was to be titled “Do It How You Wanna.”⁹

CHAPTER 3

THE ULTIMATE APHRODISIAC

        Back in 1989, the Supreme Court declared that the Constitution bars any law against burning the American flag.¹ The Court said that flag burning was “expressive conduct” protected by the First and Fourteenth Amendments. You can give that ruling a sanity check by reading both Amendments in the Appendix. You won’t find anything about flag burning in either one. You won’t find anything about expressive conduct either. Of course the judges in 1989 were well aware of that.

        Therefore, they must have found some other reliable evidence that elected representatives of the people, back when the two Amendments were added to the Constitution, intended them as a license for future judges to use to protect flag burning. If you believe that I’ve got a bridge to sell you.

        The people who adopted the First Amendment had survived the Revolutionary War. Patriotic fever was running high. They would have made quick work of anyone who publicly burned the flag their brothers had just died to protect. They also had a high degree of mistrust for federal judges. They showed that when they passed the Eleventh Amendment in 1795. That subject is discussed in the next chapter.

        The Fourteenth Amendment was adopted right after the Civil War. Let’s not forget how the Civil War began? As you’ll learn in Chapter 5, a corrupt Supreme Court ruling helped set the stage. Then confederate forces fired on the American flag at Fort Sumpter. If any congressman announced he was voting to amend the Constitution so that judges might some day protect flag burning, Americans at that time would have made quick work of him too.

        According to The American Legion, five Supreme Court rulings prior to 1989 upheld the people’s right to protect the flag from public gestures of disrespect. For more than 100 years, the federal government, and as many as forty-nine states, had laws to do just that. Polls in the 1990's indicated that 80 percent of the American people wanted to retain those laws.² Nevertheless, federal judges suddenly discovered protection for flag burning in the Bill of Rights in 1989. Can you imagine a more blatant fraud than that?

        For several years, conservatives in Congress pushed a proposed constitutional amendment to nullify the 1989 ruling. Liberals in the media ridiculed them for wasting time on it. At this writing, the amendment has not been adopted. It failed in the Senate in 1995. Most U. S. Senators dislike the idea of taking action to counter stealth rule by judges.

        All of this has the makings of a comic opera. Our Constitution says that amendments to it must originate in Congress or in a constitutional convention.

        I’m well aware that many thoughtful people are among the 20 percent who think the Constitution ought to protect expressive conduct as long as it’s not violent or damaging to the rights of others. Many thoughtful people also applaud other examples of judges placing enlightened amendments in the Constitution. They’re all in for a nasty disappointment. Sooner or later judges will amend the Constitution in ways they detest. Our Supreme Court acts as a royal council rather than an impartial court of law. A royal council will change course whenever it thinks best.

THE PRINCE

        Let’s explore how and why the Court became a royal council. In the last chapter, we were reminded that English common law judges represented the King. After the Revolution, America decided not to have any royalty. Judges, however, figured out how they could assume the role of royalty for themselves. If they continued to operate from the English common law, and placed it above the Constitution, they could exercise essentially unlimited power.

        Of course American judges, even those on the Supreme Court, don’t exactly think of themselves as kings. Who ever heard of a country with nine kings? Supreme Court insiders think of the justices, not as kings, but as princes and princesses. You can confirm that by checking the book, Closed Chambers, by Edward Lazarus. Lazarus was a Supreme Court clerk in 1988 and 1989. So he knows how Court insiders think. Lazarus described the Justices as “seven princes and two princesses sharing a single castle.”³ In a country with no king, princes and princesses have a lot of power.

        For those in a position to steal that kind of power, the temptation is hard to resist. Henry Kissinger once said that power was the “ultimate aphrodisiac.”⁴ For federal judges, especially those on the Supreme Court, awesome power is within reach. To grasp it requires that one lie to others and, perhaps, to oneself. However, the risk is small.

        For nearly five centuries, those who lusted for power have studied a famous book entitled The Prince. Niccolo Machiavelli, an Italian bureaucrat, wrote it around the time of Shakespeare. Critics have called it "a blueprint for dictators.” In The Prince, Machiavelli did not concern himself with right and wrong. His only concern was power. As a result, his book came to be viewed as evil. Experts who have studied the history of Machiavelli’s book claim that a common name for the devil, "Old Nick," was derived from the author’s first

        They also claim that the world’s most evil dictators studied The Prince. The Fascist leader, Mussolini, wrote a doctor's thesis on it. Hitler kept a copy by his bedside. Lenin and Stalin studied it as well.⁵

        Those who lust for power study The Prince. That has long been a constant of the history of politics. For two centuries, American judges have schemed to grasp ever increasing power. So they have certainly studied it too. Judicial actions consistently show mastery of its lessons. That idea is a theme of this book.

THE FIRST GREAT PRINCE OF USURPATION

        Between 1790, when the Supreme Court opened for business, and 1801, it had two Chief Justices. That does not include one who served briefly under an interim appointment. It also does not include one who took the job briefly but then withdrew. In the first few years a Supreme Court seat was an unattractive job. The justices had to spend about half the year on the road. Six of them covered the whole country, traveling on circuit duties.

        In addition, the work wasn't the least bit uplifting. The real action was in Congress or in the President’s cabinet. Those jobs allowed one to do exciting things. One could help launch a new nation. As a judge you spent your entire work life dealing with people at their worst. You had the onerous duty of deciding "cases" and "controversies." That's what it said in the Constitution.

Consequently, men with better options did not want to serve on the Court.

Beginning in 1801, a Federalist named John Marshall changed all that.

        During our nation’s first decade, members of the Federalist party dominated the federal government. They had played a leading role at its birth. They had good ideas and good political skills. So Federalists supplied our first two Presidents and had early majorities in Congress. George Washington, our first President, was a nominal Federalist. His style, however, was really that of a centrist. He had good men from both parties in his cabinet.

        The next President was John Adams, a true Federalist. Adams didn't do nearly as well as Washington. It turned out that the Federalists also had some bad ideas. Historians describe their ideal as rule by "the wise, the rich, and the good."⁶ They liked the idea of government by kings. They just didn't like English King George III. However, they were quite fond of eighteenth century English political ideas.

        The best-known Federalist thinker was Alexander Hamilton. They say that Hamilton, at the 1787 Constitutional Convention, proposed that we have a king at the head of our new government. His proposal didn’t get anywhere.⁷

        After Washington left office and Adams took over the Federalists soon got

        Before leaving, in early 1801, the Federalists took their revenge on the people. They appointed John Marshall as Chief Justice of the Supreme Court. They also packed the lower courts, hoping that their judges, under Marshall’s clever leadership, could save them from too much democracy. A statement by Hamilton captures their opinion of democracy. In a debate with Jefferson, he said the “people” were “nothing but a great beast."⁸

        Marshall turned out to be a very good choice for the job. He was bold, patient, and cunning. He was committed to a mission. His mission was to secure rule by the "wise, the rich, and the good." The best way to do that was to take power from the people and put it in the hands of judges. Judges could listen to the wise, the rich, and the good. They were in office for life. So they could ignore the views of the "great beast." Marshall would establish "judicial supremacy." All the tools that he needed could be found in The Prince.

        In Marshall’s time, The Prince had been available in English for at least a century.⁹ Most educated people were aware of it. Those who cared about power had read, or maybe even studied, it. Marshall’s whole career was a case study in the techniques it taught. The Prince taught that one should take a long-range view. Old Nick also taught that a prince should not bother about honesty. You had to be a good con artist to succeed in power politics. Conning people was easy if one lacked respect for truth.

        In one area, John Marshall found Machiavelli’s advice a little bit ambiguous. The Prince taught that every tyrant should try to avoid angering either the people or the nobility. You had to do what you had to do, but getting the people mad at you was always dangerous. There were a lot more common people out there than there were members of any other group. However, most of the time you could fool them. They weren’t very well educated. They were unorganized, and they were too busy working to pay much attention to what you were doing.

        The nobles, on the other hand, paid close attention. And they had demands they expected you to meet. They would plot to destroy you if you didn’t play ball.

        Old Nick admitted that the people were more deserving of the government’s loyalty than were the “great ones” whose designs were “fixed on commanding and oppressing altogether.” The people hoped only to avoid being oppressed or, as Machiavelli put it, “only to defend and secure themselves.” However, none of that mattered. The point of being a prince was to gain and hold power.¹⁰

        Of course the America of Marshall’s time did not have nobility of exactly the same type as did medieval Italy. However, a careful observer could see that it had a close parallel. Marshall was a careful observer. In every era, members of an elite minority make careers “commanding and oppressing” the majority. They arrange to live very well by controlling access to government decision-making processes. In Marshall’s time, “the nobility” was mainly wealthy Federalists and lawyers.

        Marshall knew that he had to ally himself with this group’s designs to command and oppress the majority. That served his personal biases; he was a member of that “nobility” himself. He had contempt for the people and was confident he could fool them as often as necessary. A lesson from the history of English common law helped inform this decision.

        Do you remember the Robin Hood stories? They had two main villains; the Sheriff of Nottingham and King John. John was the little brother of beloved King Richard the Lion Hearted. Richard spent most of his adult life fighting in the Crusades, so John got to act in his place and eventually became king himself.

        King John ruled England centuries before Old Nick published The Prince, and he never figured out all its lessons for himself. So he angered both the nobility and the people at the same time. Robin Hood’s gang, according to the stories, caused John a lot of trouble, but the stories were only folk tales. There’s no real evidence that the people had any success in curbing John’s tyranny.

        The nobility was another matter. In 1215 AD, a group representing most of the English barons made John an offer he couldn’t refuse. He could avoid a civil war he was sure to lose by signing the Magna Carta, or “Great Charter,” a contract which greatly restricted his power. John accepted the offer at a place called Runnymede. The Magna Carta placed limits on the powers of English kings forever after.¹¹

         This historical episode offered a clear lesson to John Marshall. Most of the time it’s more dangerous for a tyrant to anger the nobility than the people.

Marshall practiced all these lessons from English history and The Prince. His judgements served the agenda of an elite minority. He practiced trickery and deceit. And he followed a long range plan patiently creating “judicial supremacy.”¹² He was so good at this game that he merits the title of The First Great Prince of Usurpation.

        Let me describe, for example, his rationale for “judicial review” of laws passed by Congress or the states. First he pointed out that, in America, all power flows from the people. The people had expressed their will in the Constitution. It was the supreme law of the land. It created a judicial branch whose functions included picking which laws applied to each case.

        Some cases raised issues the judges had to resolve by consulting the

        So far it sounds pretty good, doesn't it? However, Marshall's ideas continued more or less along the following lines. The judges already have all the guidance they’ll ever need from “We the People.” Now that they’ve spoken, they should just shut up and sit down. They can elect folks to take care of minor day-to-day chores, but the judges will do all the heavy lifting.

        The judges will consult the “nobility.” They will consult the select few who are "wise," "rich," and "good." They will then make all the long-range decisions. They will find something in the Constitution to justify whatever they decide. We may not be able to understand what they claim to find there. Never mind. We should just trust them. They are members of a learned priesthood. And they would never lie.

CHAPTER 4

ONE AND ONE-HALF CENTS PER ACRE

        In 1994, the people of California voted to pass Proposition 187, an amendment to their state constitution. The amendment would have ended the education of illegal aliens in California public schools, thus saving the state $2 billion per year. Sneaking into the country was a crime. California voters thought they could lower the crime rate if they removed a $2 billion incentive.

        Citing a Supreme Court precedent, a federal judge struck down the Amendment. In 1982, in Plyler v. Doe, the Burger Court had ordered the State of Texas to provide free public schooling to the children of illegal aliens.¹

        Now the Proposition 187 ruling addressed a complex issue. Many thoughtful Americans strongly favored it. They said that having young illegal aliens in school was much better public policy than having them run the streets. However, in California at least, a majority did not agree. In any case the debate should be resolved in a way that does not violate the Constitution. Its Eleventh Amendment would seem to forbid federal judges from hearing this kind of case.

        Perhaps you never heard of the Eleventh Amendment. The federal courts have been defying it for about 200 years. So it’s rarely an issue in modern cases.² The Eleventh Amendment says, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

        That’s rather flowery language, but it’s meaning is fairly clear. It says that federal judges are not allowed to decide any case in which a foreigner sues an American state. They also may not decide any case in which an American state is sued by a resident of a different state. It’s still in the Constitution. Check it out.

        If you say that it’s an unwise amendment, and ought to be repealed, you’ll get no argument from me. We had to repeal an unwise amendment before and we could do it again. You may recall the Eighteenth Amendment by which “We the People” wrote prohibition into the Constitution. It was ratified in 1919 and took effect in 1920. We soon discovered that it was a big mistake. So, thirteen years later, it was repealed by the Twenty First Amendment.

        Our judicial branch of government never allowed us to discover that the Eleventh Amendment was a big mistake. The judges just refused to obey it. They’ve been defying the Eleventh Amendment since soon after it was passed.

        You can find many recent examples. Back around 1970, a Dutch citizen wanted to practice law in the State of Connecticut. The state had a rule  
 
 
 

        The Eleventh Amendment has a rather interesting history. John Marshall, the First Great Prince of Usurpation, played a big role in the story. Marshall wasn’t a judge in the 1790's. So he didn’t take part in the reign of terror. He hit his stride a few years later by nullifying the Eleventh Amendment.

        The story begins in 1792 when the Supreme Court ordered the state of Georgia to pay a large sum of money to two citizens of South Carolina acting as executors for a resident of Great Britain. “We the People” thought the ruling went beyond the constitutional power of judges and resolved not to let the usurpation go unanswered. The people had worked hard for their money. They wanted their local tax dollars to be used for things they understood. And they didn't trust federal judges anywhere near their public treasuries. So they adopted the Eleventh Amendment to fix the problem.⁴

        The record shows that a broad consensus supported adding the Eleventh Amendment to the Constitution. And the people intended it to mean exactly what it said. The Senate considered the proposed Amendment in 1794. Its members quickly disposed of a motion to slightly limit its scope and then voted 23-2 to adopt it as written.

        A couple months later the House of Representatives debated the proposed amendment. A motion was made to tone it down a bit. The members rejected that motion by a vote of 77-8. They then voted 81-9 to adopt the Amendment as written. Thirteen out of fifteen states ratified it by 1795.⁵

        The people had wasted their time. The judges refused to obey it. The Marshall Court sat from 1801 until 1835. It heard many important cases in which a state raised the Eleventh Amendment as a defense. Every time the judges offered a nonsense excuse. Then they went ahead and heard the case anyway. The Taney Court, which sat from 1837 until 1864, followed Marshall's lead. It heard five cases in which a state cited the Eleventh Amendment as a defense. All five times the Taney Court made up a ridiculous excuse and ruled that the Amendment didn't apply.⁶

        Throughout our history federal judges have used a variety of excuses in refusing to obey the Eleventh Amendment. The excuses were mainly one of the following four types.

  ■      The Supreme Court ruled that one could get around the Eleventh Amendment by appealing, to federal court, an adverse decision in state court. It claimed that kind of case wasn’t “commenced or prosecuted” against the state.

  ■      The Supreme Court also ruled that you could sue, in federal court, an  
 
 
 

  ■      Another common dodge was the consent-to-be-sued fraud. It says that a state can waive the protection of the Amendment. Then the judges went on to talk about "implied waivers." A state could waive its rights without even knowing about it. It gets even better. All the states supposedly gave an implied waiver against Eleventh Amendment protection when they joined the Union. Even the fifteen states that joined before the Amendment was adopted gave an implied waiver.

  ■      The judges also created another giant loophole in the Eleventh Amendment. They claimed it did not cover political subdivisions of states. Anyone could sue cities and counties in federal court to his heart's content.⁷

          In 1810, the Marshall Court earned the grand prize for the most comical scheme to get around the Eleventh Amendment. That year the Court decided Fletcher v. Peck. The case concerned a famous swindle, the Yazoo Land Fraud.⁸

        Historians view Fletcher v. Peck as one of the most important cases of all time. But that has nothing to do with the Eleventh Amendment. The case created major precedents concerning the power of federal judges. Most historians fail to mention that the Supreme Court defied the Constitution to create those precedents. They also don’t tell us that the Court acted as a knowing accessory to a swindle.

        The story began about the same time the people adopted the Eleventh Amendment. In 1795, the Georgia Legislature sold thirty-five million acres of state-owned land to four New England companies. Thirty-five million acres is a lot of land. In this case it was most of the present states of Alabama and Mississippi. The sale price was about 1 1/2 cents per acre. The people of Georgia soon learned that the land companies had secured this great deal by bribing all the legislators except one. In an election later that year, they threw the scoundrels out.

        The new Legislature quickly acted to cancel the fraudulent sale. However, the four land companies also acted quickly to fence their stolen property. They sold most of the land to speculators who resold parts of it to yet a third layer of speculators. Most of those in the game knew they were handling hot goods, so they had to keep it moving.

        Before long, a large crowd of hustlers had money in the deal. They all pretended surprise when Georgia passed a law declaring their titles invalid.  
 
 
 

        The hustlers then did what swindlers still do in such cases. They hired some well-connected lawyers and lobbyists. The lobbyists worked Congress and the lawyers schemed to find a way around the Eleventh Amendment. They needed to find a way to get federal judges into the game.

        Years went by. The lobbyists made a bit of progress, but there are limits. Congressmen must run for reelection. Passing a law to safeguard the ill-gotten gains of swindlers and crooks is always risky.

        The lawyers finally thought up a promising ploy. A New England resident named John Peck had fenced part of the original booty. He had given a piece of the action to Robert Fletcher. The scheme was simple. Fletcher sued Peck in federal court, demanding his money back. Peck claimed that Fletcher didn't have a case because his title was good. He claimed that the Georgia law canceling the sale was "unconstitutional." It violated the "contracts" clause.

        Both Fletcher and Peck claimed that they were as pure as the newly driven snow. They had been totally ignorant of the fraudulent nature of the original deal. It was obvious to all that the suit was a setup to position federal judges to get around the Eleventh Amendment and rule on Georgia's cancellation of the crooked deal.

        The case got to the Supreme Court in 1809. The lawyers on both sides were well connected with the judges who would hear the case. Two well-known lawyers named Robert Harper and Joseph Story represented Peck. Story got himself appointed to the Supreme Court a year or two later. Harper and Story also had money in the deal.⁸

        A famous hotshot named Luther Martin represented Fletcher. Martin was an old crony of the justices and was generally thought to be the most clever lawyer of his time. The scheme required Martin's client to lose in court so they could all make money. Martin played his role well. Historians suggest that he came to court drunk to throw the case.⁸

        The Supreme Court played along with the scheme. It ignored the Eleventh Amendment, pretending that Georgia was not a party to the case. It then ruled that Georgia had to honor the fraudulent titles. If you own property in Mississippi or Alabama, you might be an unknowing accessory to bribery and fraud.

A WISE PRINCE DOES NOT KEEP FAITH

        The Fletcher v. Peck case showed most of Marshall's biases. He favored a strong central government, with no real power left to the states. He had contempt for elected legislators. They responded to the passions of the ignorant masses. He thought that unelected judges alone could govern wisely. Like  
 
 
 

        The case also showed his agenda. It was to write his biases into the Constitution through judicial rulings. He pursued that agenda by following the advice of Machiavelli. He was devious and tricky. He was patient. He followed a long-range plan, picking cases that would create precedents distorting the law in small steps. The Marshall Court moved legal custom slowly, but relentlessly, toward his goals.

        Marshall avoided big leaps that would create a powerful majority against him. He knew that Supreme Court power grabs, if chosen wisely, need never be met by united opposition. Usually the victim was a state. The states could rarely form a united front on any issue.

        His Court’s rulings usually advanced the agenda of some powerful faction. In this he also followed advice in The Prince. That faction, when combined with those afraid to shake the boat, would protect the judges. Most folks tolerate corruption when it leads to an outcome they desire.⁹

        We can't leave the First Great Prince of Usurpation without mentioning Marbury v. Madison, his most famous case. More than any other decision, it gave rise to his heroic status in legal folklore. It also showed his devious talents at their best.

        Marshall had come to the Court from a job as Secretary of State in the Adams Administration. Before leaving office, in 1801, the lame duck Adams team did all it could to pack the courts with Federalists. Marshall, as Secretary of State, signed some appointments, but neglected to deliver them. The documents were still laying around when James Madison, the new Secretary of State, came to work. He stuck them in a drawer and forgot them. Why should he help his political enemies?

        Marshall had promised one of the jobs to a fellow named Marbury. Marbury was counting on it. So he sued in Marshall’s Court to get it. The Court didn't respond until 1803. Marshall needed time to think up a clever way to handle the case. If he had ordered Madison to give Marbury the job, the Jefferson Administration would have refused. Judicial power would suffer a damaging blow. Congress was also getting ready to impeach some Federalist judges and Marshall didn’t want to add fuel to the fire.¹⁰ On the other hand, if Marshall had ruled against Marbury that would have strengthened the Republicans’ position vis a’ vis the Federalist judges.

        Historians consider his ruling a stroke of genius. Marshall said that he couldn't take the case. He said that Section 13 of the Judiciary Act of 1789 (the law Marbury had used to lodge his suit) was unconstitutional because it added to the Supreme Court’s original jurisdiction as specified in the Constitution. He wrote a long, erudite opinion that focused on the sacred duty of judges to overrule laws that they thought in conflict with the Constitution. He also included a gratuitous slap, which he admitted had no legal effect, at the  
 
 
 

        Marshall had put a very important stake in the ground. He had claimed that judges had the power to overrule acts of Congress. Judges, then and later, treated Marbury v. Madison as a precedent. Marshall’s claim had no basis in the Constitution. Even English common law did not support it. In fact William Blackstone, the universally accepted authority on English common law, had warned that allowing judges to overrule legislators would be “subversive of all government.¹¹

        However, nobody bothered to challenge Marshall’s claim at the time it was made. Since the Court had declined to back Marbury, the Republicans saw the judges backing off from a fight. That gesture may have saved Marshall and some of the others from impeachment. It may have changed some votes in the Senate.¹⁰

        At the time, Republicans in Congress were working on a plan to impeach some judges. They wanted to punish them for their "reign of terror" a few years earlier. They warmed up with a lower-ranking judge named John Pickering whom they had picked because he was an easy target. He was believed, apparently with good cause, to be crazy and a drunkard. Pickering was impeached and convicted without a hitch.¹²

        Next they went after Samuel Chase, a Supreme Court justice. You may recall his exploits from Chapter 1. Chase was the loudest and most intemperate judge who had persecuted Republicans with the Sedition Act. Historians believe that Marshall and a few other Supreme Court justices were also on the impeachment list.

        The House voted to impeach Chase in 1804. It then appointed a committee to press the case against him in the Senate which had a large Republican majority. Nevertheless, in early 1805, the Senate failed to convict Chase. A conviction required the votes of two-thirds of the Senators. The votes weren't there.¹³

        According to various historians, the House managers of the trial in the Senate bungled the case. Also, many Senate Republicans were leery of striking a blow against the independence of judges. They worried about the long term effects. That is how historians explain it today and they applaud the wisdom of the outcome. Thomas Jefferson never got over the failure of the Chase impeachment attempt. His letters for many years after ridiculed the impeachment weapon as, "only a scarecrow."¹³

        In any case, the crisis passed. Marshall served as Chief Justice for thirty-four years. During that time the Supreme Court wrote most of his biases into the Constitution. To be more precise, it wrote his biases into a counterfeit constitution. Judges can’t write anything in the real Constitution.

        John Marshall died on the job in 1835. During his funeral ceremonies, legend has it, the Liberty Bell was rung in his honor. It suffered a giant crack  
 
 
 

CHAPTER 5

A SCAM IS BORN

        Every few seconds someone gets a phone call from a place the cops call a “boiler room.” There’s no boiler there, just desks and telephones. Several con men are using the telephones to call up folks looking for victims. When they find one, they try to sell him a thousand shares of phony stock or five acres in the middle of a swamp. The con men need to make a lot of calls because they usually have a very low hit rate. Most of their targets refuse to be victimized.

        However, there’s another confidence racket that’s much more sophisticated than the average boiler room p