CHAPTER VII. THE PEOPLE’S RIGHT OF APPEAL

In their opposition to the establishment of “Christianity, general Christianity,” in Virginia, and to the making of that a “Christian State,” James Madison and the good people of Virginia declared that “one of the noblest characteristics of the [then] late Revolution” was in the fact that “the freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled itself in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle.” They also said that they themselves “revered this lesson too much soon to forget it.” The American people ought yet to revere this lesson too much ever to forget it.ROP 140.1

In the matter of a national religion, a religious despotism, by means of this “Christian nation” decision, it is too late to avoid the consequences by denying the principle; because the principle is already established. The people were given no opportunity to deny the principle. It was sprung upon them without their knowledge, and in spite of the constitutional barriers which they had set up in, as they supposed, eternal denial of the principle. For this reason it is too late to escape the consequences by denying the principle; but it is not too late to escape the consequences by reversing the decision.ROP 140.2

It is not too late for this if only the people will think enough upon the question to see that all the consequences are in the principle; and that these consequences will certainly follow if the principle is left undisputed, if the decision is left standing as the meaning of the Constitution. It is not too late, if only the people will see this, and awake to the reality of the issue, and reverse the decision; and with one voice repudiate it, even in the words in which United States Senator William Pitt Fessenden denounced the famous Dred Scott decision, as “utterly at variance with all truth, utterly destitute of all legal logic, founded on error, and unsupported by anything resembling argument.” ^{20Blaine’s “Twenty Years of Congress,” Vol. I, p. 133.}ROP 140.3

For “the people of these United States are the rightful masters of both congresses and courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.”-Abraham Lincoln. ^{21Speech “To the Kentuckians,” Cincinnati, Ohio, September, 1869. “Political Speeches and Debates,” p. 507. I give these double references so that anyone who has any copy of Lincoln’s speeches may readily find the passage. The copy that I use is the one advertised at the end of this book.}ROP 141.1

The right of the people of the United States to appeal from any decision of the Supreme Court of the United States, upon any constitutional question, upon any question involving the meaning or the interpretation of the Constitution, is an inalienable right.ROP 141.2

This proposition will probably be disputed by many judges, by many lawyers, and certainly by almost all the archbishops, bishops, preachers, and priests throughout the land; while the great majority of the people will doubtless be surprised at it, and wonder whether it is true. Yet it is not only the veritable truth, but it is the very life principle of a free government-which is only saying that it is the life principle of the government of the United States as a free government.ROP 141.3

The inalienable right of the people to appeal from, to sit in judgment upon, and to correct, any action of the President or the Congress of the United States, is recognized and acted upon by the people. But the right of the people to do likewise respecting the decisions of the Supreme Court touching constitutional questions, has been largely forgotten. And there is a vast combination in the United States scheming against the liberties of the people, whose members sincerely desire that this right shall be forgotten by the people in its exercise and in its existence. For this reason, if for no other, the knowledge of this right of the people needs to be revived as fully as possible.ROP 141.4

The government of the United States, and, therefore, the Supreme Court as a coordinate branch of the government, is not self-existent; it was created. It did not spontaneously spring into existence of itself full formed; in all its parts it was made, as certainly as any other piece of machinery was ever made. It was created by the people of the United States; and, like any other creature, it is the subject not the master of its creator. “We, the people of the United States,” made the government of the United States, and in that made the Supreme Court of the United States as a coordinate branch thereof; and “we, the people of the United States,” therefore by this very fact are “the rightful masters,” and not the servants of this thing which they have made; and as such the people have the inalienable right to sit in final judgment upon any act of the government of the United States.ROP 142.1

“We, the people of the United States, in order to form a more perfect union,” in order to form that which is the government of the United States, ordained and established “this Constitution.” This Constitution is the charter of the nation’s existence. This Constitution is the sole depository of all the authority of the government of the United States in all three of the coordinate branches thereof. This Constitution, therefore, is the sole depository of all the authority of the Supreme Court, and of all the authority that that court can ever rightly exercise. To this Constitution that court owes its existence, and all the accompaniments of that existence. And as “we the people,” established and ordained this Constitution which gives to the court its very existence and all the authority that it ever can rightly have, it follows that “we, the people,” have ever the inalienable right of final judgment and correction of any and every decision of that court touching any question as to the meaning of the Constitution which “we, the people,” have ordained and established.ROP 142.2

The authority of the Supreme Court is delegated and not absolute. Decisions of the Supreme Court, therefore, are not final in all things, because the people have not delegated all their rights. In the Constitution the people have declared and established that-ROP 143.1

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” ^{22Ninth amendment.}ROP 143.2

Again: The Supreme Court, being but a creature of the Constitution, must be subject to the Constitution. Having been created by the people, through the Constitution, it is bound by the limitations prescribed by the people in the Constitution. In the Constitution the people have declared that-ROP 143.3

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” ^{23Tenth amendment.}ROP 143.4

As the people made the Constitution with the delegation only of certain rights to be exercised by the government, it follows conclusively that the people are the supreme authority in the United States, and the source of final appeal in all questions of their reserved rights. And “prudent jealousy” in the guardianship of these rights against encroachment on the part of the government or any of the branches thereof is the first duty of the people of the United States; and religious right is the chief of all these reserved rights no less than the chief of all natural rights. “I insist that is there is anything which it is the duty of the whole people to never intrust to any hands but their own, that thing is the preservation and perpetuity of their own liberties and institutions.”-Abraham Lincoln. ^{24Speech on The Missouri Compromise, Peoria, Ill., October 16, 1854. “Political Speeches and Debates,” p. 24.}ROP 143.5

This is sufficient as to the principle in the abstract, as the principle inheres in the very nature of a limited constitution. Yet, as with many persons the statement of a principle, however clear, is insufficient without proof from authorities, we shall now cite the very best authorities as to the correctness of the principle.ROP 144.1

First, we have the authority of one of the makers of the Constitution:-ROP 144.2

“It must be granted that a bad administration may take place. What is then to be done?-The answer is instantly found: Let the Fasces be lowered before-the supreme sovereignty of the people. It is their duty to watch, and their right to take care, that the Constitution be preserved, or, in the Roman phrase on perilous occasions-to provide that the republic receive no damage.”ROP 144.3

“When one part [of government], without being sufficiently checked by the rest, abuses its power to the manifest danger of public happiness; or when the several parts abuse their respective powers so as to involve the commonwealth in the like peril; the people must restore things to that order from which their functionaries have departed. If the people suffer this living principle of watchfulness and control to be extinguished among them, they will assuredly, not long afterwards, experience that of their ‘temple’ there shall not be left one stone upon another, that shall not be thrown down.’”-John Dickinson, pamphlet on The Federal Constitution, 1788. ^{25“Federalist and Other Constitutional Papers,” p. 796.}ROP 144.4

Secondly, we have the authority of Thomas Jefferson. In 1820 a gentleman by the name of Jarvis sent to Jefferson a book that he had written, entitled “The Republican.” In his acknowledgment of the present, Jefferson called the author’s attention to “a very dangerous doctrine” that seemed to be inculcated in the book. His words upon the point, and it is the very point which is here under consideration, are as follows:-ROP 144.5

“You seem, in pages 84 and 148, to consider the judges as the ultimate arbiters of all constitutional questions,-a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is, ‘Boni judicis est ampliare jurisdictionem;’ and their power is the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party, its members would become despots.” ^{26“Jefferson’s Correspondence,” Vol. VII, p. 177. Quoted also by Abraham Lincoln in his speech at Springfield, Ill., July 17, 1858, “Political Speeches and Debates,” p. 43.}ROP 145.1

Thirdly, we have the authority of Abraham Lincoln. With direct reference to this point he paraphrased the above statement from Jefferson as follows:-ROP 145.2

“Jefferson said that ‘judges are as honest as other men, and not more so.’ And he said, substantially, that ‘whenever a free people should give up in absolute submission to any department of government, retaining for themselves no appeal from it, their liberties were gone.’” ^{27Debate with Douglas, Galesburg, Ill., October 7, 1858, “Political Speeches and Debates,” p. 362.}ROP 145.3

Again: In his first inaugural address, March 4, 1861, Lincoln stated the case, as follows:-ROP 145.4

“I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case upon the parties to a suit, as to the object of that suit, while they are also entitled to a very high respect and consideration in all parallel cases by all other departments of the government; and while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.ROP 145.5

“At the same time the candid citizen must confess that, if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court the instant they are made, as in ordinary litigation between parties in personal action, the people will have ceased to be their own rulers-having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is this view any assault upon the court or the judges.”-Id., pp. 535, 536.ROP 146.1

Fourthly; we have the authority of George Bancroft, the historian of the Constitution. Mr. Bancroft wrote the standard and authoritative history of the United States up to the time of the making of the Constitution, and then wrote the “History of the Formation of the Constitution” itself. And in this latter history, in discussing “The Federal Judiciary,” he makes the following statement concerning the Supreme Court, which is also only an extension of the principles laid down by Alexander Hamilton in his discussion of the Judiciary in the Federalist, No. LXXVIII.ROP 146.2

“The Supreme Court was to be the ‘bulwark of a limited constitution against legislative encroachments.’ [“Federalist,” LXXVIII.] A bench of a few, selected with care by the President and Senate of the nation, seemed a safer tribunal than a multitudinous assembly elected for a short period under the sway of passing currents of thought, or the intrepid fixedness of an uncompromising party. There always remains danger of erroneous judgments, arising from mistakes, imperfect investigation, the bias of previous connections, the seductions of ambition, or the instigations of surrounding opinions; and a court from which there is no appeal is apt to forget circumspection in its sense of security.ROP 146.3

“The passage of a judge from the bar to the bench does not necessarily divest him of prejudices, nor chill his relations to the particular political party to which he may owe his advancement, nor blot out of his memory the great interests which he may have professionally piloted through doubtful straits, nor quiet the ambition which he is not required to renounce, even though his appointment is for life, nor cure predilections which sometimes have their seat in his inmost nature.ROP 146.4

“But the Constitution retains the means of protecting itself against the errors of partial or interested judgments. In the first place, the force of a judicial opinion of the Supreme Court, in so far as it is irreversible, reaches only the particular case in dispute; and to this society submits, in order to escape from anarchy in the daily routine of business.ROP 147.1

“To the decision on an underlying question of constitutional law no such finality attaches. To endure, it must be right. If it is right, it will approve itself to the universal sense of the impartial. A judge who can justly lay claim to integrity will never lay claim to infallibility, but with indefatigable research will add, retract, and correct, whenever more mature consideration shows the need of it. The court is itself inferior and subordinate to the Constitution; it has only a delegated authority, and every opinion contrary to the tenor of its commission is void, except as settling the case on trial.ROP 147.2

“The prior act of a superior must be preferred to the subsequent act of au inferior; otherwise it might transform the limited into an unlimited constitution. When laws clash, the latest law is rightly held to express the corrected will of the Legislature; but the Constitution is the fundamental code, the law of laws; and where there is a conflict between the Constitution and a decision of the court, the original permanent act of the superior outweighs the later act of the inferior, and retains its own supreme energy unaltered and unalterable except in the manner prescribed by the Constitution itself.ROP 147.3

“To say that a court, having once discovered an error, should yet cling to it because it has once been delivered as its opinion, is to invest caprice with inviolability and make a wrong judgment of a servant outweigh the Constitution to which he has sworn obedience. An act of the Legislature at variance with the Constitution is pronounced void; an opinion of the Supreme Court at variance with the Constitution is equally so.” ^{28Bryce, Vol. II, pp. 201-203.}ROP 147.4

This passage is worthy of more extended notice.ROP 147.5

(a) “The Supreme Court was to be the bulwark against legislative encroachments” upon the rights of the people. This was the purpose of the founders of that tribunal. But did the people erect no bulwark against judicial encroachments? Or did they suppose that supreme judges were so decidedly infallible that there was no possibility of their encroaching even unconsciously? Did they think it impossible for that Court to make a mistake?-Nothing of the kind. They knew that even supreme judges, being only men, are just like other men, having the same weaknesses and the same liability to mistakes as other men, and therefore being as liable as legislators to mistake the meaning of the Constitution and to encroach upon the rights of the people. And knowing that “a court from which there is no appeal is apt to forget circumspection in its sense of security,” and is thereby only the more apt to make mistakes and encroachments-knowing this, the people, while setting the Supreme Court as the bulwark against legislative encroachments, retained to themselves the right of final appeal, judgment, and decision upon the decisions of the court touching all questions of the Constitution.ROP 147.6

(b) “Where there is a conflict between the Constitution and a decision of the court,” etc. But if every decision of the Supreme Court is final in all respects; and if said decisions are to be accepted as final as to the meaning of the Constitution; then it would be impossible that there ever could be any such thing as a conflict between the Constitution and a decision of the court.ROP 148.1

Yet, as it is expressly declared in the Constitution that the people have reserved certain rights and powers exclusively to themselves, and so have forbidden the Supreme Court any jurisdiction in these, it is clearly possible for a conflict to be made between the Constitution and a decision of the court. And where there is a conflict there must of necessity be some authority to decide. And as the people made both the Constitution and the court; and as the people stand outside of and above both the Constitution and the court; it is perfectly plain that in all cases of conflict between the Constitution and the Supreme Court, the right of final judgment and decision lies with the people as an inalienable right.ROP 148.2

(c) The court “has only a delegated authority, and every opinion contrary to the tenor of its commission is void.” But if every decision of the court is to be accepted as final in all respects, how would it be possible for any opinion ever to be void? And even though it were possible, how could the fact of its being void ever be discovered? It is true that the court has only a delegated authority, and that every opinion contrary to the tenor of its commission, that is, every opinion contrary to the tenor of the Constitution, is void. And it is equally true that it lies with the people, who delegated this authority, to discover and to disregard and set aside as void every such opinion. And this prerogative lies with the people as their inalienable right.ROP 149.1

(d) “An act of the Legislature at variance with the Constitution is pronounced void. An opinion of the Supreme Court at variance with the Constitution is equally so.” An act of the Legislature at variance with the Constitution is pronounced void by the Supreme Court. But when an opinion of the Supreme Court is at variance with the Constitution, whose prerogative is it to pronounce this void and to treat it so?-Clearly this is the prerogative and right of the people.ROP 149.2

It is here said, and repeated, that every such opinion of the court “is void” This is true; and if such decisions were completely ignored by everybody, and so left meaningless and void as they are, they could never do any harm. But it is hardly possible that there could ever be a decision in which nobody would have sufficient personal interest to seek to make it of force as far as possible; and every decision, void or otherwise, always stands as a matter of record to be taken up by interested parties and used as a precedent upon which to carry any principle involved, to its fullest extent in real factitive law. For this reason it is incumbent upon the people to see that every such decision is so positively pronounced void, and regarded so by themselves-the supreme and ultimate authority-that it shall not be cited even as a precedent.ROP 149.3

For that such is the authority and the inalienable right of the people is certainly made clear both by the principle and by the authorities cited in this chapter.ROP 150.1

There is another excellent statement of this principle, which, though not bearing exactly the force of national authority, is well worthy to be set down here. It is in every respect true, and shows how this subject presents itself to a disinterested mind. Here it is:-ROP 150.2

“How and by whom, in case of dispute, is the validity or invalidity of a statute to be determined?-Such determination is to be effected by setting the statute side by side with the Constitution, and considering whether there is a discrepancy between them. Is the purpose of the statute one of the purposes mentioned or implied in the Constitution? Does it in pursuing that purpose contain anything which violates any clause of the Constitution? Sometimes this is a simple question which an intelligent layman may answer; more frequently it is a difficult one, which needs not only the subtlety of a trained lawyer, but a knowledge of former cases which have thrown light on the same or a similar point. In any event it is an important question, whose solution ought to proceed from a weighty authority. It is a question of interpretation, that is, of determining the true meaning both of the superior law [the Constitution] and of the inferior law [the statute], so as to discover whether they are inconsistent. Now the interpretation of laws belongs to courts of justice.”ROP 150.3

“How is the interpreting authority restrained? If the American Constitution is capable of being so developed by this expansive interpretation, what security do its written terms offer to the people and to the States? ... There stands above and behind the Legislature, the executive, and the judiciary, another power, that of public opinion. The President, Congress, and the courts are all, the two former directly, the latter practically, amenable to the people.... If the people approve the way in which these authorities are interpreting and using the Constitution, they go on; if the people disapprove, they pause or at least slacken their pace.... The people have, of course, much less exact notions of the Constitution than the legal profession or the courts. But ... they are sufficiently attached to its general doctrines, they sufficiently prize the protection it affords them against their own impulses, to censure any interpretation which palpably departs from the old lines.”-Bryce, American Commonwealth, chapter 23, par. 13, 14; chapter 13, par. 20, 22.ROP 150.4

Certainly the Supreme Court, in the “Christian nation” decision, has palpably enough departed from the old lines for its interpretation to deserve this censure of the people. The question now is, Are the people indeed sufficiently attached to this great leading doctrine of the Constitution to censure this interpretation that subverts that doctrine? This decision on that point is void. Will the people declare and treat it so?ROP 151.1