The Fiction of Legal Precedent and How We Can Restore Our Constitution
It was in the 1930s under Chief Justice Charles Evans Hughes that the SCOTUS started to overturn its own precedents. These were cases such as United States v. Darby, in which the court began to affirm President Franklin Roosevelt’s New Deal economic policies after previously rejecting them as unconstitutional. These “New Deal” policies were all based on socialism which is entirely at odds with the individual determination and rights guaranteed by the limits the Constitution places on government authority. Before then, of course, many cases asked the court to interpret clauses of the Constitution for the first time, so there were often no precedents to overturn.
The court overturned constitutional precedent under Chief Justices Earl Warren 32 times, Warren Burger 32 times, William Rehnquist 30 times and now John Roberts 15 times.
When and why is precedent overturned?
For most of its history the SCOTUS changed its mind only when it thought past precedent was unworkable or no longer viable, perhaps eroded by its subsequent opinions or by changing social conditions, in easier terms “socialism” has determined and often dictated the changes in legal precedent.
However the Constitution is a contract with the American people and the contract does not change unless it is changed according to the procedures contained within the contract itself which are found in Article V of the United States Constitution.
The SCOTUS’s undermining of the Constitution began in earnest in Erie Railroad v. Tompkins, a 1938 Supreme Court case overturning a 96-year-old precedent in which the court had constructed rules about how federal courts should handle cases involving parties from different states. The court in Erie said that the original decision proved to be unworkable and had been undermined by the court’s own later decisions.
The court has also said that its precedents based on constitutional grounds deserve less respect than those in which the court interprets statutes or laws. The reason is that if Congress thinks the court has erred in a matter of interpreting a statute or law, it is relatively easy for them to overturn it by passing a new law. But it’s quite hard to pass a constitutional amendment, so the only real way to update the judicial understanding of the Constitution is to overrule a precedent.
A clearer statement – for the last 90 years judges nominated by the President and appointed by Senators in Washington DC simply undermine the Constitution by rejecting the previous protections and limits afforded by the Constitution. Now you no longer have to wonder why originialists like Scalia, Thomas and Alito are so hated and despised by the establishment swamp creatures in Washington DC.
Of course some reversals are 100% correct, as is the most famous reversal of precedent in the 1954 Brown v. Board of Education under the Warren Court, in which it reversed Plessy v. Ferguson and struck down segregation under the “separate but equal” doctrine.
Chief Justice Roberts has been willing to overturn settled law when he thinks the original opinion was not well argued. He did so in Citizens United, a 2010 decision overturning two major campaign finance decisions, Austin v. Michigan Chamber of Commerce and part of McConnell v. FEC.
In 2020, Justices Neil Gorsuch and Brett Kavanaugh in Ramos v. Louisiana went out of their way to explain and justify their views on when constitutional precedent may be overturned. They echoed Justice Samuel Alito’s discussion in 2018 in Janus v. American Federation of State, County, and Municipal Employees Council Number 31. All three justices said constitutional precedent is merely a matter of court policy or discretion, more easily overturned than a precedent about a law. Sometimes, they said, constitutional precedents can be overruled if later judges view them as wrongly decided or reasoned.
In clearer terms, three of the nine SCOTUS justices fully acknowledge that “legal precedent is based on subjective opinions.”
Consider the information below explaining the original intent of the United States Constitution as a contract with the American people.
Many Americans today view the Constitution as a “living, breathing” document. As a result, we live under the largest government in history. By living and breathing, they mean the Constitution was written as a “dynamic” document; flexible, so it can change with the times. Instead of maintaining a fixed meaning, judges, lawmakers and bureaucrats mold its various clauses and provisions to fit the needs of the day.
Woodrow Wilson was one of the first politicians to define and aggressively advocate this idea of a living, breathing document in his book Constitutional Government in the United States, and while stumping on the campaign trail in 1912. “Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission – in an era when ‘development,’ ‘evolution,’ is the scientific word – to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.”
America’s founding document essentially serves as a contract between the people of the states. Through the Constitution, they formed the Union, set up a general government to administer specific objects and delegated to it specific, enumerated powers.
The concept of a living, breathing Constitution is really an excuse to methodically undermine the God given rights of the American people piece by piece by undermining the restrictions and limits the Constitution places on government authority. If the Constitution truly needs to be amended, then the procedures to do so are found in Article V of the Constitution itself. A bill must be passed by Congress and ratified by 3/4 of the states.
You can’t have a living, breathing contract. Think about it. Contractual provisions have a fixed meaning. When you sign on the dotted line, you expect them to remain constant over time. When disagreements come up, both parties argue their position based on how they understood the contract when they signed it. Nobody would accept a banker saying, “Well, I know the mortgage meant so-and-so, but now it means something different. It’s a living, breathing mortgage.” Of course not, and a living breathing Constitution is just as absurd.
People can only live together and cooperate in a society with an agreed upon, consistently applied set of rules. We call this the “rule of law.” The principle roots itself in the idea that no individual or institution stands above the law, and that rules consistently apply equally to all people in any given situation. Rule of law creates a bulwark against arbitrary power, whether wielded by a totalitarian leader, promoted by mob rule, or exercised by duly elected legislators.
The rule of law requires consistency. Otherwise, the government becomes arbitrary. When the limits on government power become subject to reinterpretation by the government itself, it becomes limitless in power and authority.
That’s exactly what we have today. The federal government, and often the State government as well, makes up things as it goes along. The feds claim the power to do all kinds of things never authorized by the Constitution, all based on this living, breathing lie.
But how do we know what those enumerated powers really mean? How do we determine the extent of powers delegated?
The only rational way to understand the Constitution lies in an interpretive process known as originalism. To read the Constitution through an originalist framework means we seek to understand how the people understood it at the time. In other words, what they believed they were agreeing to. Otherwise, meaning becomes a moving target, subject to the changes in language and societal assumptions over time.
James Madison asserted that we must view the Constitution in this way in a letter to Henry Lee: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!”
Learning the ratifiers’ understanding takes some research and digging. On the other hand, some mystical veil of historical fog doesn’t obscure their view of constitutional powers. We have records of the ratification debates and the ratifying instruments themselves.
We also have the Federalist Papers and other documents written by supporters used to “sell” the Constitution to ratifying convention delegates, and the population at large. These essays were akin to a window sticker on a used car, explaining exactly what the people were “buying.” We have numerous letters and essays written by opponents of the Constitution, along with letters written by framers and ratifiers. All of these sources help guide our understanding. With a little work, you will find the original meaning of the Constitution easily determined and understandable.
Thomas Jefferson himself advocated this process of constitutional interpretation: “On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”
It’s time to kill this idea of a living breathing Constitution before it completely kills the Constitution.
Since Tompkins in 1938, our courts across America have been told to subjugate their understanding of the Constitution to the precedent of a few select judges in Washington DC. And, truth be known, our entire government in Washington DC has been manipulated by and controlled by the same money interests that Congressman Louis McFadden warned of in his Congressional speech of 10 June 1932 Louis T. McFadden’s U.S. House Speech,10 June 1932 (afn.org) and Congressman Charles A Lindbergh exposed in his book Banking and Currency and the Money Trusts. Another book exposing the truth is The Creature from Jekyll Island: A Second Look at the Federal Reserve by G Edward Griffin (americanbookwarehouse.com). Understand that Senator Joseph McCarthy was 100% correct about the communist’s in Washington DC – Blacklisted by History: The Untold Story of Senator Joe McCarthy and His Fight Against America’s Enemies by M. Stanton Evans (9781400081066: Amazon.com: Books).
The only way to restore the Constitution and take back our God given rights is to ensure that government officials (especially judges) in the United States uphold their oath to the United States Constitution. If we start by holding the judges personally accountable to the Constitution the government will correct itself very quickly.
In accordance with Article VI of the United States Constitution the duty of every judge in the United States is to uphold their sacred oath “to support, obey and defend the United States Constitution” and as government officials entrusted and acting with government authority and thus wielding government power, to violate the sacred duty to adhere to the Constitution which limits government authority is to endorse and sanction operating the government based solely on the government’s unrestricted and limitless power which is treason (see) Cohens v. Virginia, 19 U.S. (6 wheat) 264 404 5 L. Ed. 257 (1821): “No one can war with the Constitution.” To war with the Constitution constitutes the overthrow of our constitutional form of government, which is treason in violation of Title 18 U.S.C, § 2381.
In Oklahoma the duty to the United States Constitution is enshrined in Article 15 of the Oklahoma Constitution:
SECTION XV-1, Officers required to take oath or affirmation – Form. All public officers, before entering upon the duties of their offices, shall take and subscribe to the following oath or affirmation: “I, _________, do solemnly swear (or affirm) that I will support, obey, and defend the Constitution of the United States, and the Constitution of the State of Oklahoma, and that I will not, knowingly, receive, directly or indirectly, any money or other valuable thing, for the performance or nonperformance of any act or duty pertaining to my office, other than the compensation allowed by law; I further swear (or affirm) that I will faithfully discharge my duties as _________ to the best of my ability.” The Legislature may prescribe further oaths or affirmations. Amended by State Question No. 466, Legislative Referendum No. 178, adopted at election held on Sept. 9, 1969.
SECTION XV-2Administration and filing of oath – Refusal to take – False swearing. The foregoing oath shall be administered by some person authorized to administer oaths, and in the case of State officers and judges of the Supreme Court, shall be filed in the office of the Secretary of State, and in case of other judicial and county officers, in the office of the clerk of the county in which the same is taken; any person refusing to take said oath, or affirmation, shall forfeit his office, and any person who shall have been convicted of having sworn or affirmed falsely, or having violated said oath, or affirmation, shall be guilty of perjury, and shall be disqualified from holding any office of trust or profit within the State. The oath to members of the Senate and House of Representatives shall be administered in the hall of the house to which the members shall have been elected, by one of the judges of the Supreme Court, or in case no such judge is present, then by any person authorized to administer oaths.
Every government official in Oklahoma is required to swear/affirm “to support, obey and defend the Constitution of the United States and the Constitution of the State of Oklahoma” before they can assume the duties of the office. Failing to uphold the oath of office is perjury (false swearing), requiring as punishment “disqualification” and thus the removal from office and prohibition from holding any government office within the State of Oklahoma again.
No government official, (especially a judge), whether high or low in the United States has the right to neglect their sacred duty to uphold the United States Constitution as the Supreme law of the Land by waiving their duty based on the opinion of another government official. Each government official is pledged to honor their oath and must never vacate their own reason and judgment for the opinion of another (not even a judge or even a group of judges) when the evidence confronting the government official is clear. To defer to the opinion of another individual is gross dereliction of duty, abdication of the responsibilities of the office they hold and a violation of their oath of office which requires a sacred pledge from each of our government officials “to support, obey and defend the United States Constitution” as the supreme law of the land.
If the Oklahoma Attorney General is presented with such a complaint, the claims go to the complaint office currently held by David Williamson. Personally I think the complaint and all supporting evidence should be presented to a Grand Jury, if 9 of 12 Grand Jury members that are ordinary citizen’s of the State of Oklahoma can understand the constitutional issues presented as a violation of the Constitution, then the government official accused of such violations should be considered incompetent or intentionally violating their oath and removed under the provisions of Article 15 for “perjury”.
Learned officials, especially judges and District Attorney’s whose sole duty is “to support, obey and defend the United States Constitution” should have no immunity when they violate the Constitution. After all, their job is to study the limits the Constitution places on government authority and the laws enacted by the legislature that they are instructed to enforce. Should the DA’s and judges in Oklahoma be relegated to the status of order following Nazi Gestapo that were found guilty of violating human rights and executed when they attempted to use the excuse of “I was just following orders” at the Nueremberg trials?
These judges and DA’s chose to accept the position in the government requiring them to apply their knowledge and and understanding of the Constitution and therefore they should have no liability for failing to fully understand the Constitution and perform the duties of their office to support, obey and defend the Constitution.
Even the SCOTUS decision in Henry Thompson v. City of Kansas City affirms there is “no qualified immunity for any government official that violates the rights of an individual through intent or incompetence.”
Judges and lawyers should hold these words from the SCOTUS decision dear: Schware v. Board Of BAR Examiners; “Certainly since the time of Edward I, through all the vicissitudes of seven centuries of Anglo-American history, the legal profession has played a role all its own. The bar has not enjoyed prerogatives; it has been entrusted with anxious responsibilities. One does not have to inhale the self-adulatory bombast of after-dinner speeches to affirm that all the interests of man that are comprised under the constitutional guarantees given to ‘life, liberty and property’ are in the professional keeping of lawyers. It is a fair characterization of the lawyer’s responsibility in our society that he stands ‘as a shield,’ to quote Devlin, J., in defense of right and to ward off wrong. From a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility…”
The majority do not need the protections of the Constitution as they are the majority and can vote in any law the majority agrees upon. The purpose of the Constitution is to protect the minority from the majority and the lowest number of any minority is one and thus the entire purpose of the Constitution is protecting the God given rights of the individual from the majority thus protecting the individual from the abusive and tyrannical power of the government.
“America is founded as a Constitutional Republic,” “America is not a Socialist Democracy.” The democracy (majority rules) process ends when the people vote to elect the individual into office that they feel will have the knowledge, understanding and courage to best “support, obey and defend the United States Constitution.” That means the duty of each of our elected officials is actually to stand against the majority when the majority are contemplating violating the rights of the minority or even the individual. Much like the old westerns when a sheriff stepped out of his office and faced down the same townspeople that elected him to defend the constitutionally protected rights of a prisoner in his jail.
Sadly today we elect the most gutless politically correct and power hungry cowards that can be found into our political offices because overly spoiled, emotionally soft feminized people don’t want to hear the direct and honest masculine talk that might be so blunt as to offend their delicate sensibilities. And so the political cowards compromise away the same constitutional guarantees that our military members give their lives for. President Donald Trump has the courage to take a stand and fight for the American people even when the traitors within our government attempt to destroy him. But where are the rest of the Aaron Burr’s and Alexander Hamilton’s in our government today?
If you are ever accused of a crime that is constitutionally questionable (such as possessing a type of firearm the government says you cannot), initially your court case will be randomly assigned to a judge. If the prosecutor learns that judge is honest and will adhere to their oath upholding the United States Constitution, then those pulling the communist strings within our state will ensure your case will be moved and reassigned to a corrupt judge that will go along with the effort to usurp the Constitution.
To hold State level government officials (especially judges) more accountable and ensure they are truly representing the values of the people within Oklahoma, a citizen’s complaint on the basis of a violation of Article 15 and the oath to the Constitution should be presented with all supporting evidence to a grand jury sequestered by the State AG from within the district the case originated in reflecting rural, urban and suburban voters. If the jury members find the official (especially a judge) did violate their oath of office then charges of perjury against the judge should be filed through the State AG’s office.
Charges of perjury for violating the oath of office should be brought to trial in front of a jury within the district of the government official. If found guilty of the formal charges of violating Article 15 at trial held in the district of the judge so accused, which ensures that our judges truly are in line with the same constitutional understanding as their constituents. If found guilty the judge would immediately be removed from office and forever prohibited from holding any government position in Oklahoma.
DA’s that bring clearly unconstitutional charges against an American citizen place a judge who is honor bound to the United States Constitution in peril and the judge must have the authority to file charges of perjury against a District Attorney that frequently brings such cases before the judge to the State Attorney General.
As the attacks on former President Trump increase because he stood against the globalists and their agenda, tens of millions of Americans are waking up to the weaponization and corruption of the judicial branch of our government. Many BAR Association members “lawyers, District Attorney’s and judges” across America are actively attempting to undermine the rule of law and usurp the United States Constitution in support of the global Marxist agenda. The BAR Association members working to destroy America fully expect to be a nobility class as they assist in bringing about a Marxist/Communist based society.
Judges in our State must be held accountable to Article VI of the United States Constitution and Article 15 of the Oklahoma Constitution every time they violate their oath of office and support any action that is in conflict with the guarantees and protections of the United States Constitution.
To ensure our legislators adhere to their oath, they should be required to submit the constitutional authority under which, and the constitutional argument in support of each piece of legislation they sponsor and/or co-sponsor. If a bill cannot be justified by our government officials on a constitutional basis then it should not be enacted or supported by our elected officials.
Recently Arkansas Governor Sarah Sanders very eloquently stated the concept and vision our founding fathers had for America “government should never loom larger than individual liberty.”
“Ignorance of the law” is no excuse, “I was just doing what they told me to do” is no excuse, “I was just following their lead” is no excuse, “I was deferring to their opinion” is no excuse, because there is no excuse when government officials violate their oath “to support, obey and defend the United States Constitution.”
If you don’t understand the Constitution and/or you don’t have the courage to uphold the oath to the United States Constitution then don’t run for or accept a position within a government office requiring you to take a sacred oath to do so.
U.S. Army ret SFC BL Cozad Jr – Licensed Private Investigator (PO Box 136 Indiahoma, OK 73552)