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Posts Tagged ‘legislative’

The United States Supreme Court.

On the January 11, 2012 episode of Radio Liberty with Dr. Stan Monteith, Pastor David Whitney of The Institute on the Constitution made a claim implying that common law doesn’t exist in the United States (starting at 22:35):

The Congress is the only body that is given the power to make law. Not the judiciary, not the executive — none of them can make law. Only Congress can make law. Anything attempted by those other two branches is not law, it’s a violation of the Constitution.

While I agree that only Congress can legislate through statutes, there is the distinction between statutory law and common law. I know that Pastor Whitney regards natural law as the highest form of law, and that anything contrary to natural law is null and void. However, there is the separate issue of whether common law, which may or may not protect natural rights, exists in the United States, and has constitutional force.

Merriam-Webster’s Online Dictionary states that common law is:

[T]he body of law developed in England primarily from judicial decisions based on custom and precedent, unwritten in statute or code, and constituting the basis of the English legal system and of the system in all of the United States except Louisiana.

Alexander Hamilton wrote in Federalist Paper 81:

The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, others in the course of the CIVIL LAW.

Here we have a recognition of common law applying to the United States, from the most prolific writer of The Federalist Papers.

The Seventh Amendment to the Constitution, ratified in 1791, states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Here we have evidence from the Constitution itself that common law applies in the United States.

Therefore, I have shown that common law does exist in the United States,  in terms of the intent of the Founding Fathers, and is operable according to the Constitution.

Wherever there is no Congressional statute or code stating how something should be handled, decisions by judges constitute a separate body of law in the United States.

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The United States Capitol

The most powerful branch of government

It’s no wonder the U.S. government isn’t functioning the way its founders intended it to, when the White House falsely claims it’s co-equal with the other two branches of government:

To ensure that no person or group would amass too much power, the founders established a government in which the powers to create, implement, and adjudicate laws were separated. Each branch of government is balanced by powers in the other two coequal branches

The three branches of the United States government (legislative, executive, judicial) are not co-equal, and that is because the more numerous and greater powers were delegated to the legislative branch of government, which are vested in Congress.

Among Congress’ sole powers, found in Article I of the Constitution, which show its primacy over the other two branches, are to:

  • Impeach and remove from office, every officer of the judicial branch and executive branch, including the President, for high crimes and misdemeanors.
  • Raise revenue and pay for all expenditures of government from the Treasury (known as “the power of the purse.”)
  • Declare war, and provide for the calling forth of the militia into the service of the United States, at which point the President then becomes its Commander-In-Chief.
  • Override the veto of the President with a two-thirds majority of both Houses.
  • Confirm all executive and judicial officers of the United States, by and with the advice and consent of the Senate.
  • Ratify all treaties with the advice and consent of a two-thirds majority of Senators.
  • Create all inferior courts to the Supreme Court, including abolishing them entirely.
  • Pass legislation with the stipulation that the Supreme Court can’t review it, so long as it doesn’t have original jurisdiction.
  • Choose the President and Vice-President in exceptional circumstances.
  • Propose amendments to the Constitution with a two-thirds majority of both Houses, without the consent of the President or the courts.

Above all three branches of government are the people — the source of the powers granted to the three branches of government by the Constitution.

The legislative branch is supposed to be closest to the people, and that is why it was made the most powerful branch of government, and to the extent the American people recognize that, and insist it be returned to its proper place, the sooner America will be poised to return to its founding principles that made it a shining beacon for the rest of the world.

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Constitutional Convention, 1787

The Preamble to the United States Constitution states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Note the use of “Constitution for the United States of America” and not “Constitution of the United States.

From the Fourteenth Amendment’s mention of “Constitution of the United States,” it is argued that the original intent of the Founding Fathers was subverted in referring to a Constitution of the United States as a single entity, as opposed to a Constitution for the United States of America as a union of sovereign independent states.

However, if you look at the context, it’s specifically referring to the oath of office taken by all officers and legislative members of the States, and all officers and Congressional members of the United States, which includes the President of the United States.

From the original Constitution, the presidential oath or affirmation of office is:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

Therefore, it is clear from the Constitution that the Founding Fathers who signed it interchangeably referred to both a “Constitution for the United States of America” and a “Constitution of the United States,” without drawing any particular distinction between them.

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