The Kiss of Judice: The Constitution Betrayed–Amendments

Section 29. Judici Officium Suum Excedenti Non Paretur. Constitutional Convention Anyone?


Précis: Judici Officium Suum Excedenti Non Paretur ● The ancient common law rule meaning, “No obedience is to be given a judge exceeding his office or jurisdiction” ● Reminds readers of what the Framers and other notables such as Jefferson, Lincoln, and even various supreme court justices, have said about the non-binding nature of illegitimate power ● Lays the foundation for enlightened survival, focus, mental health, and mental warfare in the Age of Usurpation and in the battle to restore the Constitution—time to hoist the Jolly Roger ● Concludes with suggested curatives such as a second constitutional convention and presents generic constitutional amendments to restore the Constitution ● In most cases, the proposed amendments have the advantage of being cast in the Framers’ own words, making them perhaps a bit more difficult for the federal expansionists to disparage.

America! America!
God mend thine every flaw,
Confirm thy soul in self-control,
Thy liberty in law!


(Katharine Lee Bates.)
O beautiful for spacious skies,
For amber waves of grain,
For purple mountain majesties
Above the fruited plain!
America! America!
God shed his grace on thee
And crown thy good with brotherhood
From sea to shining sea!
O beautiful for pilgrim feet
Whose stern, impassioned stress
A thoroughfare for freedom beat
Across the wilderness!
America! America!
God mend thine every flaw,
Confirm thy soul in self-control,
Thy liberty in law!
O beautiful for heroes proved
In liberating strife.
Who more than self the country loved
And mercy more than life!
America! America!
May God thy gold refine
Till all success be nobleness
And every gain divine!
O beautiful for patriot dream
That sees beyond the years
Thine alabaster cities gleam
Undimmed by human tears!
America! America!
God shed his grace on thee
And crown thy good with brotherhood
From sea to shining sea!

If the federal government had been around when the Creator was putting His hand to this state, Indiana wouldn’t be here. It’d still be waiting for an environmental impact statement.—Ronald Reagan

There are always those who are willing to surrender local self-government and turn over their affairs to some national authority in exchange for a payment of money out of the Federal Treasury. Whenever they find some abuse needs correction in their neighborhood, instead of applying the remedy themselves they seek to have a tribunal sent on from Washington to discharge their duties for them, regardless of the fact that in accepting such supervision they are bartering away their freedom.—Calvin Coolidge.

“[F]ree government is founded in jealousy not in confidence . . . . [I]t is jealousy and not confidence which prescribes limited constitutions, to bind those we are obliged to trust with power . . . our Constitution has accordingly fixed the limits to which, and no further, our confidence may go. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”—Thomas Jefferson[1]

“Adverse possession does not run against the government, still less against the sovereign people; usurpation is not legitimated by inertia.”—Harvard Law Professor Raoul Berger.[2]

“Law . . . [is] all we have standing between us and tyranny of mere will and the cruelty of unbridled, undisciplined feeling.”—Justice Felix Frankfurter.[3]

Constitutional government is dead in the United States. Rigor mortis set in many years ago, soon after the United States Supreme Court blasted away the bedrock of constitutional protection—the principle of a government of limited power, a government which had only that power delegated to it and no more. Far more than the protections of the later-added bill of rights, the original principle of limited government is what really protects individual freedom, for it operates, as Hamilton said, without any help from the bill of rights, to keep an area of private liberty off-limits to the government.[4]

In the 1930s limited government was transformed into its polar opposite—boundless government—when the court granted congress plenary power to tax, spend, and regulate to its heart’s delight. The revamped constitution rests no longer on the granite of limited government power, but on the gossamer threads of political self-restraint, an oxymoron if ever there were one, given the poltroons and gasbags we have over the years sent to Washington.


Today we see the results of the constitutional nullification: a government not only with unbridled power to rob Peter to pay Paul via vast social welfare programs that have no warrant in the Constitution, but one that claims the power to tax and spend on hamster nostrils, hexing studies, and cow flatulence. When the chains of constitution are broken, the politicians run riot. Hexing studies become public health, safety, and welfare measures, as the government lawyer argued in Suzanne Bartley v. United States.

Our government unchained was Prometheus unbound. In 2013, the average taxpayer had to work from January 1 until April 18 just to pay his federal, state, and local taxes; and federal taxes alone were the greatest single expense in the average taxpayer’s budget. By contrast, in 1905 the average taxpayer worked only until January 20, almost three months less than his 2013 counterpart.[5]

Butler and its offspring unleashed a federal taxing, spending, and regulatory spree, the likes of which neither the country nor the world had ever seen before. Almost all of us have paid a dear price for those excesses. Today nearly all families must have two breadwinners to survive the tax bill. The ultimate victims of the federal government’s excesses are the children who have to be shuttled off to day care centers or left unattended at home.

Soon after the judicial checks and balances on federal politicians were capsized came what seemed to be a counter-trend to the judicial passivist face of Butler, a Janus-face, a face of judicial activism that countenanced the death of federalism.

The trend grew into manhood in cases like Miranda, where the court under the guise of interpreting the constitution literally wrote a statute of police procedure; accelerated supersonically in the abominable Roe, which didn’t even pretend to rest on the Constitution; and culminated in Garcia, where the court took the Constitution for its final ride, an Evel Knieval leap into a grand canyon of constitutional void.

The activist trend was inspired by the same mindset of the Butler passivism: love of centralized power; disdain for local government. After Roe, Garcia snuffed what little life was left in state sovereignty and federalism. At the funeral dissenting Justice Rehnquist prayed that the corpse could be exhumed and revived: “I am confident [Federalism will] in time again command the support of a majority of this Court.”[6] But Federalism was buried in a deep grave alongside the grave of its long-ago forgotten constitutional twin, Limited Power (1787-1936).

A few lawyers, like the great Raoul Berger, tried valiantly to resuscitate the Constitution in the late 1970s and 80s, Berger with the electroshock of three brilliant books and numerous law review articles. And with high hopes for a constitutional Renaissance, Reagan and Bush tried to regain control over the Constitution with five appointments to the court, but only two were real Federalists: Scalia and Thomas; the other three turned out to be closet “moderates” or liberals: O’Conner, Kennedy, and Souter. Clinton’s two appointments have, of course, didn’t help. Control of the court and of the Constitution will likely remain in the hands of the anti-Federalists until well into the new century.

At the turn of the century, Justice Rehnquist’s prayers have not only gone unanswered; things are getting worse. It’s not enough for the liberals that Limited Power and Federalism are dead and buried—they need to insure there is never a Resurrection. For the modern anti-Federalists, the graves of Limited Power and Federalism can never be deep enough. The time has come to erase them from memory altogether; and the best way to do that is to torch them in the judicial crematorium fired with the rage of the “Deemocracy.”[7]

Today not only is the idea of constitution a quaint fiction, but a dangerous one for those who still burn votive candles in its memory. For the handful of mourners left in the Federalist Church, receiving judicial due process itself is a spasmodic, whimsical guarantee. The very idea of limited government seems to provoke some modern jurists, probably because Limited Power shakes the judicial article of faith and repose that government can do whatever it pleases in the fields of taxing, spending, and regulation.

We saw the Wisconsin Supreme Court’s judicial temper tantrum in the baseball tax case. The taxpayers’ case was doomed from the beginning, because the justices were cocksure Watts was wrong—so cocksure that they didn’t even give him a chance to put in a case—and so arrogant that they didn’t even bother to write their own opinion explaining why they were so damned cocksure. Thirty years ago litigants like Watts wouldn’t often win; but at least they were usually treated courteously and given reasons why they lost. Today even judicial courtesy and reason are almost as dead as the Constitution. Pomposities like “We deem the claims without merit” or “I am not persuaded” have become the language of due process in the modern Deemocracy.

The cocksure deemots show an arrogance that is at once both humorous and terrifying. “To knock a thing down, especially if it is cocked at an arrogant angle, is a deep delight of the blood”, George Santayana once said. But there are laws against knocking down Wisconsin Supreme Court justices, even those like Chanticleer who itch for the praise of other fools.

The terrifying part is where we are headed. “When today’s constitutional rules are not dependent upon, or derived from, yesterday’s, when they are not to be justified by reason, but merely by fiat or personal prejudice, then the rule of law implicit in ‘due process’ is gone”, said the late Philip Kurland.[8] Today’s judicial fiat and prejudice are the Judas kiss of betrayal of Constitution and oath of office. Thomas More said, “When a man takes an oath . . . he’s holding his own self in his own hands. Like water. And if he opens his fingers then—he needn’t hope to find himself again.”[9] Our judiciary, under solemn oath to uphold the Constitution, grasped for a political straw and let the oath of constitutional allegiance slip away. Things have never been the same. In that weak moment, the holy water of oath, law, and Constitution spilled into the gutters of irresolution and on into the sewers of political avarice.

It’s hard not to notice judicial humbuggery and hypocrisy like that of the Wisconsin Supreme Court. But often the arrogance is more subtle and more terrifying. Jules Gerrard describes this latent hypocrisy:

“Suppose a federal judge in a criminal trial has just overruled the defense attorney’s effort to exclude a critical piece of incriminating evidence. Suppose the attorney . . . exclaims, ‘You G**-damned, mother-*******, fascist son of a bitch, you are railroading my client into jail in violation of his constitutional rights.’ And further suppose that the judge holds the lawyer in contempt . . . for his outburst. What would the U.S. Supreme Court do . . . ?

A number of things are clear on the basis of precedent. First, if the lawyer had addressed the language to a school board at a meeting attended by women and children, the First Amendment would preclude punishing him.[10] Second, if he had embroidered the words on the back of his coat and worn the coat into the courthouse, the First Amendment would preclude punishing him.[11] Third, if he had uttered the words at a student assembly in a college chapel, the First Amendment would preclude punishing him.[12] Fourth, if he had uttered the words to a police officer who was arresting his client, the First Amendment would preclude punishing him.[13] But, fifth, since he addressed his words to a judge in a courtroom, the Supreme Court will sustain his conviction—and it won’t even mention the First Amendment.[14]

Is there any hope left for restoring the rule of law? Not much, it would seem. The Constitution is locked up by the modern liberals. The Constitution itself is perceived as too arcane. Eyes usually glaze over. Those who understand it and are interested are uneasy with the subject. As Edgar Friedenberg said, “The growing American characteristically defends himself against anxiety by learning not to become too involved.”[15] “It is natural to man to indulge in the illusion of hope”, said Patrick Henry. “We are apt to shut our eyes against a painful truth, and listen to the song of that siren, till she transforms us into beasts.”[16] The painful truth is that there doesn’t seem to be much likelihood for a turnaround on the court anytime soon.

Should we spit on our hands, hoist the Jolly Roger, and begin slitting throats, as Mencken suggested? That’s a tempting thought, one that would probably earn the endorsement of Jefferson who said, “The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure.”[17] He also said, “A little rebellion, now and then, is a good thing, and as necessary in the political world, as storms in the physical.”[18]

Lincoln agreed. “If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view, justify revolution.”[19] So would John Locke with one qualification: “So long as due process of law is available to remedy unjust ordinances or illegal acts, the individual is not justified in disobedience, for such action would ‘unhinge and overturn all polities, and, instead of government and order, leave nothing but anarchy and confusion.'”[20] All these men, I have no doubt, would be horrified at the state of economic slavery most of us find ourselves in today. I also have little doubt that each would say that rebellion, if not warfare, was warranted.

I do know that the baseball tax meets Lincoln’s criterion of violating a “clearly written constitutional right”, many of them in fact. I don’t know how widespread denial of due process is, Locke’s criterion, but I do know that it was denied in both the baseball tax case and in Bartley v. Thompson; and I suspect that those cases are common and getting more common all the time. If our “best” and highest courts, like the Wisconsin Supreme Court, are denying due process, the lower courts will soon follow.

But I stop short of advocating upheaval or overthrow or anything of the sort. What I suggest instead is (for lack of a better term) a “constructive engagement” animated by a defiant spirit—an attitude I believe would have salutary effects. There is certainly a basis for a Martin Luther King-like civil disobedience by taxpayers. As Justice Field said, “An unconstitutional Act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”[21] Even the modern supreme court accepts that: “Non-existent power” cannot be “prescripted by an unchallenged exercise.”[22]

The perception and reality that most of what the government does is utterly void could become the “We shall overcome” of a new abolitionist movement—one that seeks the abolition of the economic slavery into which we are all indentured from birth, a servitude in which the master over-collects federal taxes by some 70% of all federal tax revenue collected, some $2.4 trillion in over-collections for the three years 1991-93.[23]

An appropriately defiant spirit would look for ways of irritating the bureaucrats like the sainted Suzanne Bartley did. Don’t threaten; just annoy. Let a thousand similar tax refund claims bloom; go to court; make your case; cite Hamilton, Madison, and Jefferson and watch the Paula Specks of the world come in, squirm, and proclaim that funding hexing studies are proper exercises of federal taxing power. The spectacle itself is worth it; and it keeps the Specks occupied, reducing their opportunities to cause further harm.

An appropriately defiant spirit would also get over the fear of criticizing judges, a fear that paralyzes most lawyers. Justice Felix Frankfurter said:

“Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice, they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”[24]

Most of all a defiant spirit has faith: “Let us have faith that right makes might, and in that faith let us to the end do our duty as we understand it,” Lincoln said.[25] The defiant spirit doesn’t go soft. It is forever comforted with the idea that truth “may be extinguished once, twice, or many times, but in the course of ages there will generally be found persons to rediscover it.”[26]

My faith leads me to offer not just my own rediscovery of the Constitution but its Resurrection through the most direct action available—a second constitutional convention. Article 5 says:

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid . . . when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the congress.”

A constitutional convention is the best way to proceed, because it has the advantage of giving Washington only a relatively minor role in the whole process—calling the convention (which it would be obliged to do) and selecting which way the amendments are to be ratified: by the state legislatures or by conventions within the state. Congress could not participate in the convention, but only set the mode of ratification. To force congress to call a convention, the legislatures of 34 states would have to issue the call; and to ratify, the legislatures or conventions of 38 states would have to approve what the enacting convention approved.

Several years ago, when the matter of a balanced budget amendment was going nowhere in congress, we came very close to a call for a constitutional convention.[27] Everett Dirksen’s attempt in the 1960s to overrule the Reapportionment Cases by a convention call fell only one vote short.[28] A more generalized, generic approach to the problem of judicial tyranny might have a greater chance of reaching the two-thirds threshold than the one-subject approaches that have just missed.

In any case, here are generic amendments which would restore limited government and federalism and rein in the imperial judiciary. Though some of the amendments are my own words, the real beauty and sex appeal of most is that they use the very words of Madison, Hamilton, and John Marshall. Thus like Mrs. Bartley in Suzanne Bartley v. United States, here I am for the most part the Charlie McCarthy of the Founding Fathers.

AMENDMENT 28. The tax power. “[T]he [Art. 1, §8] power of taxation . . . to . . . provide for the common defense and general welfare . . . [does not] amount[ ] to an unlimited commission to exercise every power alleged to be necessary for the common defense or general welfare.” [Madison, № 41.] “[T]he power of congress . . . shall extend to enumerated cases. The [Art. 1, §8] enumeration of particulars . . . excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.” [Hamilton, № 83]

AMENDMENT 29. The commerce power. The term “commerce” in Art. 1, §8, CL. 3 means “trade.” [Madison, № 40; Hamilton, № 11] The purpose of the interstate commerce component of the clause is to promote “[a]n unrestrained intercourse between the states” [Hamilton, № 11] [and] “the relief of the states which import and export through other states from the improper contributions levied upon them by the latter.” [Madison, № 43]

AMENDMENT 30. Due process. In this Constitution, ‘due process of law’ refers only to the process and proceedings of courts . . . [and] never . . . to an act of the legislature.” [Hamilton] Due process means reasonable notice and a reasonable opportunity to be heard in judicial proceedings.[29]

AMENDMENT 31. Federalism. The rights and protections of the first ten amendments “are security against the . . . general government, not against . . . the [state] governments.” [John Marshall, Barron v. Baltimore].[30]

AMENDMENT 32. Fourteenth Amendment. “Liberty” in the due process clause means “freedom from confinement.”[31] The “privileges or immunities” clause shall be construed so as to prevent states from enacting or enforcing legislation or constitutional provisions that discriminate against a state’s own citizens or U.S. citizens in migration. The equal protection clause shall be construed so as to prevent states from discriminating against any person in the administration or enforcement of laws.

AMENDMENT 33. General principle of constitutional interpretation. “The powers delegated by the . . . Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state.” [Madison, № 45]

AMENDMENT 34. First Amendment. “The freedom of speech” in the First Amendment does not include obscenity, pornography, defamation, or criminal misconduct. “An establishment of religion” is the government’s sponsorship or preference for one sect of religion over another.

AMENDMENT 35. Takings. “Public use” in the Fifth Amendment includes only uses of property which are within the scope of the enumerated powers.[32] “Property” includes taxes.

AMENDMENT 36. Equality of constitutional provisions. In every constitutional case, each and every provision of the Constitution and its amendments, shall have equal weight, and no provision shall be preferred over others having a bearing on the subject matter of the case. The judiciary shall give one level of scrutiny to every alleged violation of the Constitution: close scrutiny. There is no presumption of constitutionality or deference to be given any legislation under review. If the government activity at issue appears to fall outside the enumerated powers, there is a presumption of unconstitutionality, and the government must show that the activity is both necessary and proper to effectuate an enumerated power.

AMENDMENT 37. Judicial opinions. Every opinion in every federal case shall answer every claim, defense, or issue raised in the case. Every opinion in every federal constitutional case shall recite the text of the constitutional provisions at issue, and, if the text is vague or ambiguous, recite whatever remarks about meaning were made in the Federalist, and apply those remarks to discern meaning.

AMENDMENT 38. The Weight of the Federalist. In constitutional and other federal cases, where the text may not of itself resolve the question, the judiciary shall give the Federalist the greatest weight of any extra-textual materials, and if the Federalist does not resolve the question, then and only then give weight to other materials, such as prior cases (except those overruled by these amendments).[33]

AMENDMENT 39. Dissolution of the existing federal judiciary. All federal judges, including justices of the United States Supreme Court, are relieved of duty one year following ratification of this amendment, and may never again serve as federal judges. The government shall pay the relieved judges their full salary during their lives.

AMENDMENT 40. Appointment of a new judiciary. The president shall at once begin nominating new federal judges who may not be seated unless they have signed the oath to uphold the constitution of the United States, including these new amendments, which are to be written in bold in the oath. A lower federal judge’s observance of the oath will be secured by the judge’s salary which shall be held in arrears and distributed only once a year upon certification by at least 2/3 of the justices of the supreme court that the judge has observed the oath. A supreme court justice’s salary shall also be withheld in the same manner and released only on certification of a majority of the legislatures of the states. No federal judge will be immune from civil liability for materially breaching his oath of office.


[1] Draft of Kentucky Resolution of 1799, Warnfield, E.D., The Kentucky Resolutions of 1789, 2nd ed., New York, N.Y. (1894), pp. 157-58.

[2] The Fourteenth Amendment and the Bill of Rights, p. 149. “Non-existent power” cannot be “prescripted by an unchallenged exercise.” United States v. Morton Salt Co., 338 U.S. 632 (1950) @

[3] Felix Frankfurter Reminisces, Reynal and Company, New York, N.Y. (1960), p. 189.

[4] Federalist No. 84.


[6] Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) @

[7] Referring to the practice of judges deeming things to be so without the benefit of reasoned application of the law.

[8] Professor of Law, University of Chicago. “The True Wisdom of the Bill of Rights”, The Bill of Rights in the Modern State, p. 9.

[9] Bolt, Robert, A Man for All Seasons.

[10] Rosenfield v. New Jersey, 408 U.S. 901 (1972) ⊗ @

[11] Cohen v. California, 403 U.S. 15 (1971) ⊗ @

[12] Brown v. Oklahoma, 408 U.S. 914 (1972)

[13] Lewis v. City of New Orleans, 415 U.S. 130 (1974) ⊗ @

[14] Mayberry v. Pennsylvania, 400 U.S. 455 (1970) ⊗ @ The Bill of Rights—Original Meaning and Current Understanding, p. 94.

[15] The Vanishing Adolescent (1959).

[16] Speech, Virginia Convention, March 23, 1775.

[17] Letter to Col William S. Smith, Nov. 13, 1787.

[18] Letter to James Madison, January 30, 1787.

[19] “First Inaugural Address,” March 4, 1861.

[20] “Law,” The Great Ideas, A Syntopicon of Great Books of the Western World, Encyclopædia Britannica, Inc., William Benton Publisher, Chicago, Illinois (1982), vol. 2, p. 969.

[21] Norton v. Shelby County, 118 U.S. 425, 442 (1886) .

[22] United States v. Morton Salt Co., 338 U.S. 632 (1950) @ .

[23] 1991-1993 the years for which Suzanne Bartley sought a tax refund.

[24] Bridges v. California, 314 U.S. 252, 289 (1941) ⊗ @ .

[25] Speech, New York City (February 27, 1860).

[26] Mill, John Stuart, On Liberty (1859), Encyclopædia Britannica (Great Books of the Western World), University of Chicago, Chicago, Ill. (1980), Ch. 2.

[27] The Oxford Companion to the Supreme Court of the United States, Hall Kermit, Ed., Oxford University Press, New York, Oxford (1992), p.180.

[28] Id.

[29] Twining v. New Jersey, 211 U.S. 78 (1908) ⊗ @ .

[30] 32 U.S. 243 (1833) @ .

[31] Paraphrasing Blackstone’s definition: “power of locomotion, of changing situation . . . without imprisonment or restraint of the person.”

[32] This amendment is based on the logic of the enumerated powers doctrine: the only valid takings for public uses are for the purposes of exercising enumerated powers.

[33] “The opinion of the Federalist has always been considered as of great authority. It is a completed commentary on our constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank . . . .” John Marshall in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) ⊗ @ .

Published in: on February 5, 2015 at 8:45 am  Leave a Comment  

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