A Great Dangerous Lie by Fake Originalists on SCOTUS (Part III)

The Constitution did not and could not delegate power to the president to commit crimes or to SCOTUS to authorize the president to commit crimes

Two of the most important and insightful SCOTUS decisions ever written about the relationship of the people to our representatives in government were New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and Garrison v. Louisiana, 379 U.S. 64 (1964). Both decisions were about our Constitution and about the core reason that the First Amendment secures the freedom of speech and press—so that American citizens can know that they are free to discuss how public servants perform their public service.

In Sullivan, SCOTUS (quoting James Madison’s Report of 1800) emphasized that American citizens are, themselves, the sovereigns; they are not the mere subjects of rulers (as were the people in Britain):¹

The Constitution created a form of government under which “The people, not the government, possess the absolute sovereignty.” The structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels. This form of government was “altogether different” from the British form, under which the Crown was sovereign and the people were subjects.

SCOTUS in Sullivan also emphasized that all public officials are “public servants” who do not and cannot enjoy “an unjustified preference over the public they serve.” SCOTUS also emphasized that “public officials” were delegated powers only for the purpose of “stewardship” of public affairs and this was “a fundamental principle of the American form of government,” as was “[t]he right of free public discussion of [such] stewardship.”

In Garrison, SCOTUS re-emphasized that the “public interest in a free flow of information to the people concerning public officials, their servants” is “paramount,” so the people are free to discuss “anything which” even “might touch on an official’s fitness for office,” including any public servant’s “dishonesty, malfeasance, or improper motivation.”

The foregoing accentuated a truth that was self-evident and every SCOTUS justice knows: our Constitution was not written for our public servants to grant us rights.²  It was written to emphasize that citizens grant government (our representatives and public servants) only limited, delegated powers and to expressly emphasize that state or federal governments lacked certain powers. “We the People” created the “Constitution” (and Congress and the Supreme Court) to “establish Justice” and “promote the general Welfare, and secure the Blessings of Liberty to ourselves” by restraining people in power and restraining people with power.

The Preamble, Articles I, II and III and the Tenth Amendment emphasize that the People created the Constitution to delegate only part of our powers to Congress, the president and federal judges, and they (our public servants) have only whatever “powers” actually were “delegated to the United States by the Constitution.” The best way to think about the nexus between the Constitution and Americans’ freedom of speech and press is as follows.

To start with, the people possess all power over our own thoughts, speech and publications. The people claimed that right and power with the Declaration of Independence, and more generally, the entire American Revolution. With the Revolutionary War, the people physically fought to secure our own rights and powers (our own independence from any oppressive official, our own privileges and immunities). Throughout the Constitution, the people merely delegated to particular representatives (legislators, executive officers, judicial officers (judges and attorneys), jurors and electors) only particular parts of the people’s own power to think and speak for ourselves.

The Tenth Amendment emphasizes explicitly a powerful principle that was implicit in the original Constitution: public servants in federal government can exercise only that part of the “powers” of “the people” that we “delegated” to federal government “by the Constitution.” The fact that the same point was implicit in the original Constitution was emphasized and explained repeatedly to encourage people to ratify the original Constitution.

In January and February 1788, Madison repeatedly emphasized that the powers of the federal government are limited and consist only of the powers delegated by the people. In The Federalist No. 10, Madison emphasized that in a “republic” all “government” consists of “representation” of “citizens” under “the delegation of” powers to “the government.” In The Federalist No. 37, Madison emphasized that “republican liberty seems to demand” that “all power should be derived from the people” and that “those intrusted with it [public servants exercising delegated powers] should be kept in dependence on the people.” In The Federalist No. 39, Madison emphasized that in our “republic” the “government” necessarily “derives all its powers directly or indirectly from the great body of the people.” In The Federalist No. 45, Madison further emphasized, “The powers delegated by” the “Constitution to the Federal Government, are few and defined.”

In The Federalist No. 49, Madison emphasized that “the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold [i.e., were delegated] their power, is derived.” James Wilson also emphasized that “the truth is, that the supreme, absolute, and uncontrollable authority remains with the people.” “[T]he supreme power” in America “resides in the people, as the fountain of government.” Wilson (like the Tenth Amendment) emphasized that “the people have not” and “the people meant not” and “the people ought not” ever “part with” their “supreme power” to “any government whatsoever. In their hands it remains secure. They” merely “delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper.”³

In The Federalist No. 51, Madison re-emphasized that in our “republic” absolutely “all authority [power of government] in it will be derived from and dependent on the society.” “In the compound republic of America,” only some “power” (but never any right) is “surrendered by the people” and then “first divided between two distinct governments” (state and federal), and then the portion allotted to each” (state or federal) is “subdivided among distinct and separate departments” (legislative, executive and judicial).

Alexander Hamilton, in May 1788 in The Federalist No. 78, was considerable more clear about the meaning of the concepts of citizens’ sovereignty and our delegation of powers to our representatives. Hamilton spoke to the particular issue here: that the Trump judges had no power to authorize the president to violate our Constitution and commit crimes against the American people. Even judges are (and must act as) “servant[s]” or “representative[s]” of “the people.” Imposing the “standard of good behavior” on federal judges was meant to be an “excellent barrier to the encroachments and oppressions of [such] representative[s]” and “to secure a steady, upright, and impartial administration of the laws” by judges.

Hamilton further elaborated on bad behavior by public servants. Every judge’s “duty” is “to declare all acts” that are “contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” Absolutely “every act of a delegated authority” that is “contrary to the tenor of the” Constitution “is void.” To pretend otherwise is to pretend “that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.”

Many SCOTUS opinions also have acknowledged that the federal government was delegated only limited powers that cannot be exceeded. “All the powers delegated by the people of the United States to the Federal Government are defined, and NO CONSTRUCTIVE powers can be exercised by it.” Calder v. Bull, 3 U.S. 386 (1798). “[T]he national government is one of delegated powers;” “the federal government” necessarily “derives its authority wholly from powers delegated to it by the Constitution.” Graves v. New York, 306 U.S. 466 (1939). Clearly, “the Tenth Amendment” necessarily “prohibits the exercise of powers” that were “not delegated to the United States.” Printz v. United States, 521 U.S. 898 (1997). “Federal power is delegated, and its prescribed limits must not be transcended even though the end seem desirable.” Linder v. United States, 268 U.S. 5, 22 (1925).

“Under our constitutional assumptions, all power derives from the people, who can delegate it to representative instruments which they create.” Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976) citing The Federalist No. 39 (J. Madison). “[U]nder the Constitution of the United States, the Federal Government, as well as each state government, is at bottom a government by the people” and “the federal sphere of government has been largely limited to certain delegated powers. The burden of establishing [proving the existence of] a delegation of power to the United States” necessarily “is upon those” who contend that a particular power was delegated. Bute v. Illinois, 333 U.S. 640 (1948).

The so-called “originalist” Trump justices were well aware that in “the system of government ordained by the Constitution” all power exercised by any public servant is “but a delegated power from the people.” Some Trump justices (Justice Gorsuch, with whom Chief Justice Roberts and Justice Thomas joined) personally emphasized that very point in a dissenting opinion in Gundy v. United States, 588 U.S. 128 (2019). They also emphasized that they were invoking “John Locke, one of the thinkers who most influenced the framers’ understanding of” the limited “powers” of our public servants.

Justice Thomas, joined by Chief Justice Rehnquist and Justices O’Connor and Scalia, in a dissenting opinion in United States Term Limits v. Thornton, 514 U.S. 779 (1995) emphasized a similar point (with my italics):

When they adopted the Federal Constitution, of course, the people of each State . . . affirmatively conferred certain powers upon the Federal Government, see, e.g., Art. I, § 8. Because the people of the several States are the only true source of power, however, the Federal Government enjoys no authority beyond what the Constitution confers: The Federal Government’s powers are limited and enumerated. In the words of Justice Black: “The United States is entirely a creature of the Constitution. Its power and authority have no other source.” Reid v. Covert, 354 U.S. 1 . . . (1957) (plurality opinion) (footnote omitted).

As many judges know, Chief Justice Marshall in McCulloch v. Maryland, 17 U.S. 316 (1819) emphasized the same point (with my italics):

The government of the Union [ ] is emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.

This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it . . . is now universally admitted. . . . [T]he government of the Union [is] limited in its powers” . . . [because] its powers are delegated . . . .

Clearly, no federal employee, including the president, can have more power than the people originally possessed. The people could and can delegate to our representatives (servants) only the powers the people actually possessed. Equally clearly, federal employees cannot have more power than the people actually delegated to their representatives in federal government. The people clearly did not and do not possess the power to commit crimes, so they clearly did not and could not delegate to the president the power to commit crimes or delegate to Congress or SCOTUS the power to authorize the president to commit crimes against the American people.

1. James Wilson also powerfully accentuated this point in multiple respects on multiple occasions. See The Dobbs Fraud by SCOTUS’s Fake Originalists (Part VI)

2. In 2022, SCOTUS issued an important decision about this very issue, N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).  SCOTUS in 2022 quoted to a considerable extent from SCOTUS in 2008 in District of Columbia v. Heller, 554 U.S. 570 (2008).

Both Bruen and Heller emphasized crucial aspects of our Constitution that too many judges cover up or ignore. “Amendment[s]” in the Bill of Rights merely “codified” parts of “pre-existing right[s].” (emphasis in Heller).  Rights were written into and ratified as part of the Constitution not “to lay down a novel principle but rather” purely because they “codified a right” (or parts of rights) that Americans “inherited” from our “ancestors,” many generations of whom earned, fought and sacrificed for such rights in many ways. 

3. James Wilson, Speech to the Pennsylvania Convention, Dec. 4, 1787, 1 Collected Works of James Wilson 177.