Dear Editor,
In this brave new era of rampant pseudo intellectualism, we must be continually weary of anyone proclaiming to be a scholar, especially a constitutional scholar. A true constitutional scholar would be familiar with Thomas Jefferson’s criticism of the Marbury V. Madison case and John Marshall the Chief Justice who decided it. The decision in this case did not follow the text or the spirit of the constitution. The decision in this case decisively unbalanced the supposedly coequal branches of our government to favor the judiciary at the expense of the legislative and executive branches of government.
Among the several predictions that Jefferson made regarding this case was that judges would become despots or dictators. With the able assistance of the legal profession judges have become those little dictators that Jefferson warned us about. This is especially true when judges tell criminal juries that they must follow the law. When our founders crafted the sixth amendment, they meant that an impartial jury could judge both the facts of the case and the law under which the government relied on in charging the accused with a crime.
A clause that a true constitutional scholar would discuss would be the due process of law clause found in the fifth amendment .Every law student learns that due process means that an individual charged with a crime has a right to be notified of this charge and a right to appear before a judicial officer regarding this charge. The law this clause refers to is the law as it was when the fifth amendment was written. This law included the right to be tried by an impartial jury as discussed above.
Over the years Ivy League elitist law professors have tried to convince us that the due process of law clause is identical to the rule of law clause which is not found anywhere in the constitution. Our founders were very familiar with the rule of law especially that was promulgated by King George and the English Parliament. If our founders wanted to insert the rule of law into our constitution, they would have. Some time ago I had an E-mail discussion with an attorney who is on the editorial staff of the New American (a John Birch Society publication). He told me that the due process of law is identical to the rule of law. I was very disappointed that he believed in what those progressive Ivy League law professors have been saying. I believe that the Cato Institute is a more reliable source of information when it comes to finding out what our founders meant when they wrote our constitution.
Dr. W. David Herbert
Billings
