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Wednesday, July 06, 2005

The Return of the American Republic - Sort Of

With the upcoming nomination to replace Supreme Court Justice Sandra Day O’Connor, we are witnessing a return to one of the founding principles originally envisioned for American government. Notice that this is just a return to the principles – the founders of the country would no longer recognize the government.

The Original Plan

As many people know, the Constitution was not originally set up as a democracy. Rather, it was established as a republic. What’s the difference? The people in a democracy vote directly on every major issue while those in a republic elect representatives who then exercise power in their name. In the beginning, the United States used some elements of democratic rule but left the primary exercise of power in the hands of representatives.

The original plan specified one member of the House of Representatives for every thirty thousand people. If we had stuck to that, we would have a House of Representatives with roughly ten thousand members.

Likewise, in the original plan, senators were not elected directly by the people. Rather, the people elected their own state legislatures. The state legislature, in turn, chose the senators who would represent the whole state in the Senate. While this indirect method of appointing senators was thrown out in 1913, it is still used to determine the president of the United States. Many voters are under the illusion that they vote directly for a presidential candidate, but it is not so. They actually vote for an elector, a member of the Electoral College. The college of electors chooses the president.

In the same way, the federal judiciary is a creation of the Congress and is therefore filled by indirect election. We don’t vote for judges directly, instead, we choose people who in turn fill the judicial positions, much as used to be the case with senators. The difference, of course, is that senators serve for a period of six years, presidents for four, judges for life.

Today's Plan

Originally, we had three branches of government: executive, legislative and judicial, with the last being intentionally made the weakest. Today, we have one branch of government, the judicial, with three auxiliary branches: the executive, the legislative, and the corporative.

The executive and legislative branches bow to the authority of the judicial branch. They do not exercise authority on their own, except as the judicial branch gives them leave. Since the federal judiciary is a creation of the legislative branch, we now have a Frankenstein government, a government in which the creator has lost control of his creation.

Since the judiciary is the only real source of power in America, the indirect election of judges through a republican system should be a source of comfort to all concerned. True, the term is for life, not four or six years, the government is by nine people, not thousands, and there remains not even a semblance of the idea that the judges represent the interests of any of the electorate but the forms are observed. We have maintained the idea of the republic – sort of.

But it can’t last. The judiciary is slowly giving away its own power to its own creation, the last branch of government, the corporation. The irony is delicious.

The New Plan

The modern corporation was created by the judiciary in its 1886 decision Santa Clara County v. the Southern Pacific Railroad. By making corporations full legal persons, “the government of the people, by the people and for the people” took on a whole new twist.

Corporations are elected to power directly by the people through a fiscal vote, in which the corporations are given money in exchange for entertainment and creature comforts. In return, the corporation dictates preferences through its advertising branch, the media. The preferences it permits us to hold are not limited to the purchase of goods and services, rather, they create and embody an entire world-view.

Like the modern federal government, the point of the corporation is to separate money from the consumer as efficiently as possible. Teenagers and children, having little wisdom or foresight, are the most easily separated from their money. Thus, it is in the interest of both the government (i.e., the judiciary) and the corporation to maintain a juvenile culture. But this creates a fatal weakness in the judiciary that is being exploited.

If any American can grow up to be President, and a corporation is a full person, then the corporation can grow up to be President. As full persons, corporations have the right to rule. By granting corporations the right of eminent domain formerly retained solely by the legislature, the judiciary is completing the work it began in 1886. It is recognizing the right of persons to enjoy a share of power. It doesn't recognize that it no longer controls the situation.

The growth of a bureaucratic culture allowed the legislature to be emasculated by the judiciary. The growth of an entertainment culture will allow the judiciary to be emasculated by the corporation. Just as the judiciary began as the weakest branch of government but has become the strongest, so corporations are actually being transformed into the government right before our eyes.

Corporations will attain this power because we the people will vote them into power. The courts, having been duly appointed by the legislators, will in turn appoint to the corporations the power to govern us, the power to take everything we own, just so long as they keep us comfortable and entertained.


c matt said...

Since the federal judiciary is a creation of the legislative branch

True for the inferior courts, but not the Supreme(ly inferior) Court, which gets its hellish existence straight from the bowels of the Constitution.

But as we know, all man-made things, including the Constitution of the USA, must come to an end.

Steve Kellmeyer said...

True, the Supreme Court is created by the Constitution, but nothing else is. And the concept of judicial review is nowhere found in the Constitution - it is not an enumerated power, it is a usurped power.

jonvon said...

Judicial review is found in the Federalist papers. That should be good enough for most people.

Steve Kellmeyer said...

As Madison wrote in Federalist 47, "The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and where hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

So, while the idea of judicial review may appear in the Federalist papers, those same papers make clear why the idea is not enumerated in the Constitution - taken to the degree that we have, it amounts to judicial tyranny.

Steve Kellmeyer said...

Oh, take a look at for more information on this and a much better analysis.

c matt said...

Speaking of Keyes, what a nominee he would make for the SCOTUS.