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Choosing a New King and a Judicial Consort

September 19, 2020

To the Framers of the Constitution, the three branches of the national government were unequal–not equal.  Of the three branches, the legislature was supreme, the Executive was more powerful than the Judiciary, but for that reason the Framers suspected that if any mischief were to occur, it would probably occur in the Executive. The popular myth that the Constitution established three separate but equal branches of government has no basis in fact. You can read about in my October 29, 2019 essay that I titled “The Myth of Coequal Branches.”

The Federalists believed to the contrary that representative government was unstable and that popular rule required a guiding hand that could check popular enthusiasm.  Thus these Federalists proposed a procedure called a “Council of Revision” as a check on the deliberations of Congress. Much to their consternation, proposals for such a “Council” were rejected four times at the Philadelphia Convention of 1787. But the Federalists were able to impose what we call “judicial review” by forceful legal opinions that commenced in Marbury vs. Madison.

With the Judiciary established as a check on representative democracy came ascendancy of our Supreme Court that, coupled with a powerful Chief Executive, has led to circumstances in today’s America that make judicial appointments of prime importance.

In November of 2020, an older United States but not necessarily better America, transformed into near monarchy by circumstances that could not have been envisioned in 1789, will elect a new “King” and the current monarch will choose a new member of the Supreme Court to protect us from the will of the people.

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