Speech Delivered by John Armor, Esq.
March for Justice II
Washington, D.C. / April 7, 2005
I'm here today because of a brilliant professor in a course I took almost by accident, 41years ago.
My last semester in college, I signed up for a course in Constitutional Law. It was taught by Dr. William Muir, a young man who was crippled and wore massive leg braces, but his mind was as sharp as any I've ever encountered.
He had a passion for the Constitution. He taught that passion to me. At Spring Break, when most of my classmates were on the beach for sun, suds and sex, I was in the library, reading dozens of Supreme Court cases for a paper for Dr. Muir.
From that day to this, and to the end of my days, I am dedicated to the Constitution of the United States of America.
Do I believe it is a perfect document? No. That's why it has an amendment clause.
But I do believe, as Prime Minister Gladstone of England said on its Centennial, it is "the most wonderful work ever struck off at a given time by the brain and purpose of man." All but six of the world's nations have written constitutions. None of those has endured as long, or been as successful, as our Constitution. Most are mere window-dressing, honored more in the breech than the observance.
Now we are in the midst of a war over our Constitution. No shots will be fired. No cities attacked. But make no mistake, this is a war. If we lose it, our Constitution will die.
For three decades, I've been a member of the Bar of the Supreme Court. For more than three decades I've practiced there. I've briefed 18 cases. At the time, I considered that the highest challenge and privilege for any attorney.
My three best known cases were on behalf of presidential candidates: Gene McCarthy in 1976, John Anderson in 1980, and George W. Bush in 2000. Like most Americans, I expected the Court to enforce the Constitution. In those cases it did. But my opinion of the Supreme Court has changed radically in the last two years.
This is the certificate the Court sends you when you are admitted to the Bar of the Court. There's a dirty little secret about these certificates. About 250,000 lawyers have one of these. You fill out a form, you pay a hundred bucks, and they send you this, "suitable for framing."
For more than 99% of the members of the Supreme Court Bar, these are just wall decorations. Perhaps they think clients will walk in, see this, and say, "Wow. My attorney must be a sharp cookie. He's admitted to the Supreme Court."
Like all professional licenses, these only matter when used. The one in a hundred of us who have practiced in the Court have seen a steady deterioration in its decisions in recent years. The Court itself has abandoned the Constitution.
My breaking point was the decision in McConnell v. FEC in 2003. That was the Campaign Finance "Reform" case. Contrary to the First Amendment, five Justices of the Court decided that Congress could tell American citizens to sit down and shut up in their politics, in the months before federal elections.
Every Justice takes an oath of office to enforce the Constitution. When the Court demonstrated it did not respect the First Amendment, that was the end of my respect for the Court.
There is a black banner on my certificate, because I resigned from the Court's Bar last July after my last case was decided.
This certificate will remain in a closet, turned to the wall, until the Justices on the Court change, and the Court again enforces the Constitution. Until then, I am in mourning for that honorable document.
Last year, constitutional lawyers like me could all see what was wrong with the Court. Now, another case has made the Court's dishonesty so visible that millions of Americans, including non-lawyers, can see the problem. That second case sparked the opposition, and caused this March for Justice II.
In Roper v. Simmons this year, the juvenile death penalty case from Missouri, five Justices decided that "evolving standards of decency" allowed them to bar state juries from deciding that the very worst of juvenile murderers could be executed. This time, the Supreme Court admitted in its opinion, in front of God and everybody, that they were changing the meaning of the Eighth Amendment of the Constitution.
Not only did the Court rewrite the Constitution in that case, it even rejected its own decision just 16 years ago which upheld such state laws.
What's wrong with this decision, and others like it?
Let's begin with the basics. We all learned in school that our form of government has three parts, the executive, legislative and judicial branches. This is separation of powers. Each branch as a separate role; checks and balances allow each branch (theoretically) to prevent the others from encroaching on its legitimate powers.
What we see today is a fundamental failure of the American theory of government, led by five Justices who are violating their oaths of office. How do we know that? Let's look at the source materials.
Hear now the words of the Gospel according to John, James and Alexander. Jay, Madison and Hamilton in the Federalist, Chapter 78, wrote this about the federal courts:
"The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment...."
This was the only time in the Federalist that the authors capitalized whole words. That emphasized their meaning. Federal judges were given great freedom -- lifetime tenure and guaranteed salaries -- to decide the cases before them. But they were expected to obey and enforce the law given to them, including the Constitution.
What is the danger, when Justices take into their own hands not just the enforcement of the law, but the rewriting of the laws they are appointed to enforce?
It is the job of state legislatures and Congress to pass the laws. They are given this authority over us, because we elect them for this purpose. We have the power to defeat them for reelection if we are not content with the laws they pass.
I state this in simplest terms. Because we do not have the power of the ballot box over federal judges and Justices, they cannot possess any LEGITIMATE power to legislate over us.
The potential problem of outlaw judges is not new. Hear now these words from the Gospel according to Tom. Jefferson wrote this to Judge Spencer Roane, in 1819:
"Our Constitution . . . intending to establish three departments, co-ordinate and independent that they might check and balance one another, it has given - according to this opinion to one of them alone the right to prescribe rules for the government of others;. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."
The government of the United States is the second in history to be based on the principle of popular sovereignty, and the first to establish that principle through a written Constitution. That is undermined by an unrestrained judiciary.
Note this statement by Jefferson in the Kentucky Resolutions, 1798:
"In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."
The entire theory of constitutional law rests on this: as the Constitution itself says, it is the "supreme Law." Either it is superior to all other laws, and to all office-holders, or, like most of the world's constitutions, it is mere decoration. No one is exempt from obedience to the Constitution, especially the Justices of the Supreme Court.
Are there Justices on the Court who see and oppose this danger? Here now these words from the Gospel according to Tony. Justice Scalia wrote this in his stinging dissent from the five-Justice majority in Roper v. Simmons:
"What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years - not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to "the evolving standards of decency" ... of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter.... The Court thus proclaims itself sole arbiter of our Nation's moral standards - and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures."
In short, what we have here is not "evolving standards of decency," but devolving standards of judicial dishonesty. Five Justices of the Court deliberately trampled on the Constitution, and deliberately violated their oaths of office. They did so by violating the plain language of that document, and the plain descriptions of the proper roles of federal judges, as laid out by the Framers.
Outlaws who wear masks and carry guns are a danger to us, one at a time. But outlaws who wear black robes and carry gavels are dangerous to all of us at once. The danger is not just to specific laws, like the juvenile death penalty ones in 19 states. It is to ALL laws, in all states and in the federal government.
After our God-given rights, the Declaration of Independence states our basic political rights:
"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, - That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government...."
This right is guaranteed by the amendment provisions in Article V. We the people are the ultimate sovereign power. We established the Constitution. Through elected representatives in Congress and the state legislatures, we have the power to change it at any time. Most recently, we used that power to establish the Madison Amendment in 1992.
But nowhere does Article V give any power to five Justices of the Supreme Court to amend the Constitution for us (presumably because we were too stupid to realize the need for a particular amendment).
What philosophy do these outlaw Justices follow? Plato's Republic provides the answer. In his system, a small number of men would be well-educated in aspects of Greek society. Then, with their special preparation, they would rule over the people as philosopher-kings.
Benevolent dictatorship never was, and never should be, the American system of government. Judges who think that way are UNFIT to sit on any bench at any level in America, most especially on the Supreme Court.
The question then is, how are we going to deal with this assault on the very heart of the theory of American government?
Impeachment of Justices who deliberately violate their oaths of office is not a remedy. A majority of the House might vote to impeach. But not in the foreseeable future will two-thirds of the Senate vote to convict and remove such Justices. Entirely too many Senators like outlaw Justices to impose their personal will whenever they choose. Jefferson himself referred to the remedy of impeachment as "a scare-crow."
What other remedies are available?
There is an interim solution to some problems. Congress can withdraw the jurisdiction of the federal courts from cases concerning the Ten Commandments or the national motto, "In God we trust." We take matches away from children because they might burn down the house. The same applies to Justices of the Court. They cannot be trusted with the Constitution; they are burning it down a clause at a time.
There are other examples. Consider the frequent cases which drag a highly-paid federal judge and his staff into the T-shirt policy of South Succotash High School. Please. Is that what the Framers created the federal courts for? Take these matches, too, away from childish judges.
The total solution, however, requires replacing the outlaw Justices with ones who will obey the Constitution.
I won't be crass and describe the ages and infirmities of individual Justices. I expect Chief Justice Rehnquist to soldier on to the end of the 2004 Term and then resign. I expect the President to name Justice Scalia to become Chief Justice. That change will make no difference in the Court's balance of power.
The next two resignations from the Court will probably be Justices Ginsburg and O'Connor, also in June. Justice Ginsburg has been hard-wired from the beginning that the Court can do whatever it chooses, and should rely on foreign laws and decisions. Justice O'Connor did not start out that way; but she has gone over to the dark side recently.
Given the ages of seven of the Justices, President Bush may make more than just three appointments in his final years. The more there are, the more likely the Court as an institution will respect and protect the Constitution for the next generation, rather than subvert and rewrite it.
Replacement of Scalia, O'Connor and Ginsburg, is the key to the remedy. The three new Justices named by the President and affirmed by the Senate must be men or women who understand that the role of a Justice is not to rewrite the laws, or worse, to rewrite the Constitution, but to obey and enforce them.
Every nominee for the Court should be asked just two questions: "What is the job description of a judge?" If the nominee gets that answer right, the next question is: "How does your career demonstrate that you live by that description?"
Think about it. If you apply to be a fry cook at McDonald's, they expect you to understand the job, and be willing to do it. Why should we expect any less of a Justice on the Court?
Every one of you, every person who hears or reads these words, everyone who genuinely respects the Constitution, must do all you can to encourage the confirmation of law-abiding Justices to those three vacancies.
Because this is a war, we expect the opposition to fight to the death, metaphorically. When it comes to the Supreme Court, some of the Democrats who have filibustered judicial nominees in the past, and threatened to continue that, have backed off. Several have said that for a Supreme Court nominee they will not obstruct an "up or down vote."
Lower court vacancies cause years of delay for tens of thousands of civil case trials, involving the interests of millions of Americans. Court-watchers have recognized this problem for years. But most Americans haven't seen this as an urgent concern.
The same is not true of an empty chair at the Supreme Court. Even the New York Times might notice that. The American people will not tolerate a two-year delay in filing one of those chairs. Members on both side of the Senate aisle will act to end such a delay, and cause an up-down vote.
We cannot overstate the stakes here. The bloodless but critical battle we are entered into was best described a century and a half ago. From the Gospel according to Abe, in The Gettysburg Address:
"... this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth."
One of the most memorable lines by President Ronald Reagan, and also the symbol of his greatest achievement, was delivered in Berlin when he said, "Mr. Gorbachev, tear down this wall." Now it is time for us to say to President George W. Bush that he must end the outlaw behavior of a majority of the Justices. "Mr. President, tear down this Court."
This is more important than mere election of a President. That is for only four years. This is for thirty years, and perhaps for the whole future of the Constitution. No retreat, no compromise. We should not falter, we cannot fail.
Seated: Scalia, Stevens, Rehnquist, O'Connor, Kennedy
Standing: Ginsburg, Souter, Thomas, Breyer
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