by: Gary Rea (c)copyright 2010 All Rights Reserved


In my article, How the American Republic Died at Philadelphia in 1787 I showed, with quotes from the Federalists and Anti-Federalists, alike, how our original constitution, the Articles of Confederation and Perpetual Union (1781) was illegally scrapped and replaced with a new Constitution (1787), which formed a wholly new government – one which was deliberately designed to grow into the fascistic behemoth we see today. Here, I will go into the various ingenious ways in which the Federalists designed the Constitution to achieve that end, all while making it appear as though our liberties were safeguarded.

First, though, I think it is necessary to point out exactly how and why this subterfuge was illegal, in the first place. The best way of doing so is to simply examine the wording of Article VIII, Section 1 of the Articles of Confederation, which says:

“And the Articles of this Confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every state.”

What this makes abundantly clear is that none of the provisions for legally revising the Articles were followed, in the first place, let alone any provisions for replacement of our founding document with a wholly new government. In fact, the Philadelphia convention of 1787 was convened in violation of Article VIII, Section 1’s requirement that the revision process begin with Congress  – the unicameral Congress created by the Articles. But, to add to that violation, there was also no unanimous consent of the state legislatures, as was also required for revision of the Articles. Thus the Philadelphia Convention of 1787 and all the state ratifying conventions that followed from it, as well as the document and the government created by them (i.e., the Federalists’ Constitution) were completely illegal and should not be considered valid or binding as a result.

Most critics of our government, as it exists today, focus upon the Executive and Legislative branches, as this is where the most activity lies, however, the fact is that the Supreme Court’s role is often overlooked and this could not have been foreseen by the Anti-Federalists of 1787 because the Supreme Court’s powers had not yet been defined and would not be until 1790, with the Judiciary Act.

In fact, it was the Supreme Court – which hadn’t existed at all under the Articles of Confederation – which enabled the beginnings of tyranny and has seen to it that it continues unabated to this day. With its justices appointed by the President and approved by the Senate (but not the House of Representatives) for life terms and the Supreme Court’s sole ability to interpret the very document that created and supposedly binds it, the stage was set for capricious subterfuge.

It was this, as well as other loopholes in the Constitution, that defeated the so-called “checks and balances” the Federalists slickly tauted as the reason for trusting this new government. While it was said that each of the three branches of government would act as checks against each other’s actions, the truth was ignored that all three branches constituted one entity, the federal government, and that these branches were each provided – by the Constitution – with several means of collusion that combine to thwart any perceived checks and balances.

As Kenneth W. Royce says in his book, Hologram of Liberty: The Constitution’s Shocking Alliance with Big Government, “For many years, the Supreme Court went practically unnoticed in its cramped, cold basement room of the Capitol. Unnoticed and uncontrolled. That was the idea.

To quote Archibald Cox, from his book, The Court and the Constitution (1987), p. 45:

“No other country has given its courts such extraordinary power. Not Britain, where an act of Parliament binds the courts. Not India, where there is a written constitution and a Supreme Court but where constitutional rights can be suspended by the government’s declaration of an emergency. Not even West Germany Or Ireland, where the power of judicial review is established but exercised on a narrower scale.

The President is elected. The Congress is elected. State legislators and Governors are elected. Supreme Court justices are not elected; they are appointed for life. So are other federal judges. Yet we give unelected justices and judges a power – called judicial review – under which they may nullify some acts of an elected President and the elected representatives of the people assembled in Congress or the legislatures of the states. In exercising the power of judicial review the Court answers, case by case, the great questions left [purposely] open by the framers concerning both their ingenious plan of government and the guarantees of  individual liberty.”

Back to Royce, who says, “One particularly alarming area of the Constitution had been the ominously incomplete Article III regarding the judiciary. In one brief sentence, Section 1 gave Congress a virtual blank slate to create any system of federal courts they chose.”

Indeed, Article III, Section 1 reads:

“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

This leaves the number of justices unspecified and Congress toyed with this for years, going from six to five to seven to nine to ten to seven again and back to nine justices, for one thing.

In a letter, dated January 17, 1788, Anti-Federalist Melancton Smith expressed his fears about the Supreme Court:

“It appears to me [the judiciary] is so framed as to clinch all the other powers, and to extend them in a silent and imperceptible manner to any thing and everything, while the Court who are vested with these powers are totally independent, uncontrollable and not amenable to any other power in any decisions they may make.” My emphasis.

In other words, even in 1788 (two years before the Supreme Court’s powers were established by Congress), the year after the Constitution was ratified, the Anti-Federalists had realized that there were no checks on the Supreme Court’s powers whatsoever. Once appointed, the justices could, basically, do anything they want to, overriding the decisions made by the President, the Congress, the States and the people. With this power established in their hands, they can make decisions that protect the excesses of not only themselves, but the President and the Congress, as well – and they have often done so.

All of these excessive Supreme Court powers were the creation of the new bi-cameral Congress, in the Judiciary Act of 1789, which shows us the lack of any real checks on the powers of Congress in the early days of the federal government. With the Supreme Court thus set up by Congress, it was – and is – possible to make an end run around any other checks and balances by collusion between the Court and the Congress or the Court and the President.

Furthermore, the Judiciary Act of 1789 wasn’t even legitimate, to begin with. As Royce points out, “…all legislative acts in the eleven months before a functioning Supreme Court were automatically invalid, because there was no judicial body to check Congress until 3 February 1790. This would make the Judiciary Act of 1789, its courts, and all their decisions void.”

In other words, prior to February 3, 1789, when Congress created the Supreme Court and the system of federal courts, there was no Judicial Branch in existence, except as vaguely prescribed by the Constitution, thus an unrestrained Presidency and Congress existed. It was this complete lack of any checks on Congress that enabled it to get away with creating a federal court system, appointed – not elected – for life and with powers that only it could exercise and which could never be overridden, repealed or restrained in any way. Thus, it is not the Presidency or the Congress that is the most fearful and uncontrollable despotic element within the federal government, but the Supreme Court.