by David Barton
Very simply, the people and their use of the ballot box was the check upon Congress. Thomas Jefferson agreed:
When the Legislative or Executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them [the people] not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.110
Yet, isn’t this what many legal activists decry as majoritarianism, that is, the so-called “tyranny of the majority”? Perhaps, but that does not mean that majoritarianism is unconstitutional. In fact, what is the acceptable alternative? That a small group should be able to annul the will of the people and enforce its own desires upon the masses? Certainly not, for as explained by President Washington:
[T]he fundamental principle of our Constitution … enjoins [requires] that the will of the majority shall prevail.111 (emphasis added)
Thomas Jefferson also emphatically declared:
[T]he will of the majority [is] the natural law of every society [and] is the only sure guardian of the rights of man. Perhaps even this may sometimes err. But its errors are honest, solitary and short-lived.112 (emphasis added)
Does this therefore mean that minorities are to be disregarded or trodden upon? Of course not. As Jefferson further explained:
[T]hough the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights which equal law must protect.113
While the minority is not to prevail, with its constitutional guarantee of “free speech,” it does have the equal right to attempt to persuade the majority to its point of view, or portions of its views, in the majority’s policies. However, equal right is not the same as equal power; the minority is never the equivalent of the majority and is never to exercise control over it.
Every citizen, however, on occasion, will find himself in a minority on some issue. At that time, the appropriate response was expressed by Samuel Adams who, when he found himself on the losing side, declared:
[A]s it becomes a citizen, I will acquiesce in the choice of a majority of the people.114
Certainly, the majority will sometimes err, but as Jefferson observed, “its errors are honest, solitary, and short-lived.” However, the errors created by Court decisions abrogating the will of the majority are more severe and long-lasting. Today, the so-called “tyranny of the majority” has been replaced with “the tyranny of the minority.” This is especially apparent in the recent reversals of numerous elections by citizen dissidents who, unable to prevail though normal governing processes, turn to activist judges to achieve their goals and to subvert the will of the people. For example:
Washington and New York citizens voted down physician-assisted suicides; the judiciary disagreed with the results and overturned the elections.115
California citizens voted that equal treatment be the rule for everyone, and that those illegally in the country should not receive taxpayer-funded services; the courts overturned both elections.116
Arkansas, California, and Washington citizens enacted term limits; the judiciary overturned those results.117
Arizona citizens voted English as the official language of the State; some judges disagreed and set aside the election.118
Colorado citizens voted that homosexual behavior should not qualify an individual for special rights; the courts again disagreed with the results and set aside the election.119
Missouri citizens voted down a tax-increase; the courts ordered one.120
Washington citizens approved a nuclear clean-up initiative by the largest margin of any election ever held in the State, but a federal judge overturned the results.121
In Oregon, citizens overwhelmingly approved a measure to provide increased protection from government seizure of private property but a judge negated the election.122
In California and Nebraska, citizens voted overwhelmingly to reject same-sex marriage and define marriage only as the union of one man and one woman but judges overturned the elections.123
There are numerous other examples.
Contrary to what is wrongly asserted by many today, the Bill of Rights was not enacted solely to protect the minority; rather it was enacted primarily to protect everyone from federal intrusion and micromanagement. And even though our founding documents never permit a national policy to be enacted by a minority group, today many policies in moral, social, educational, and religious arenas reflect not the will of the people but rather the judicially-established will of philosophical minorities whose genuine constitutional rights have not been violated. In too many cases, the true majority – despite extensive effort – has been absolutely powerless to overturn the will of the minority.
The Founders would be stunned by both the position and the power of today’s Court. The separation of powers they so carefully crafted has now been obliterated. In fact, a foreign observer in modern America today would likely conclude that the President and Congress have taken oaths to uphold the Court’s opinion of the Constitution. Yet, to allow themselves to be governed by the Court, both the President and Congress must relinquish their constitutional responsibilities and the purposes for which they were elected.
The people – not the courts – must control the destiny of the nation; national reforms and any “societal evolution” must be guided by the people rather than by the social engineering of an elite few. America must reclaim its right to be a republic, returning the Judiciary to its proper position – the least of three co-sovereign branches. The examples provided by our Founders of how to respond to overactive courts are worthy of emulation today.
† Critics will deprecatingly argue that at the time of the Founders, “the people,” that is, the eligible voters, were only the now politically-incorrect “WEAMs” and “WASPs” (White European Anglo Males and White Anglo-Saxon Protestants) and excluded all others. This criticism, while somewhat accurate (for example, blacks in the North regularly voted;18 and blacks in Massachusetts were never restricted from voting19), still does not diminish the argument concerning the will of the majority, for in every case where a constitutional protection has been established for a minority, whether of race, gender, social status, or age, each protection was extended by the consent of the majority of eligible voters at that time. That is, it was predominantly Anglo males and a small portion of Free-Blacks who established the constitutional protections for former slaves given in the Thirteenth, Fourteenth, and Fifteenth Amendments. That is, former slaves received their rights by the majority consent of non-slaves in three-fourths of the States. Similarly, the constitutional rights accorded to women in the Nineteenth Amendment were awarded them by the majority approval of the males. In like manner, the constitutional rights accorded explicitly to the poor by the abolition of the poll tax in the Twenty-Fourth Amendment came at the approval of the majority. Additionally, the constitutional right granted in the Twenty-Sixth Amendment allowing eighteen-year-olds to vote was given by the approval of voters over the age of twenty-one.
Furthermore, all of the constitutional protections for individuals and minorities that were established in the original Bill of Rights were also established by the consent of the majority. That is, the majority, by its consent, agrees to tie its own hands on certain issues (e.g., speech, religion, petition, assembly, the bearing of arms, etc.). Once such explicit constitutional protections are accorded to individuals or minorities, they can at no time be abridged by a simple vote, or by any other group, short of the passage of a new constitutional amendment to explicitly alter or repeal those rights (as in the case of the Twenty-First Amendment repealing the Eighteenth Amendment). In other words, all minority rights in the Constitution, and all explicit protections for mi
norities, have been, in all cases, established by majority consent.
† Current authorities suggest that this power is authorized by Article III, Section 2: “The judicial power shall extend to all cases in law and equity arising under this Constitution.” However, in the extensive debates surrounding the scope of judicial powers and functions, none of the Founders cited this clause as authority for the judiciary to review laws.
† Interestingly, almost a decade before the American Revolution, Samuel Adams had been one of the first to point out the abuses of the British judiciary in America. He long condemned the fact that British judges did not receive their salaries from the Legislature and, therefore, were not accountable to the people.41 He also complained that the terms of British judges were not limited to the duration of good behavior, thus meaning they could continue to serve even if they usurped the rights of the citizens.42 Very simply, Adams saw the British judiciary as a branch completely unaccountable to the people. Significantly, both of these complaints by Adams against the British judiciary were specifically incorporated in the U. S. Constitution to prevent a similar abuse of American judicial powers.
† Henry St. George Tucker (1780-1848) was a soldier in the War of 1812, a judge, law professor, and a U. S. Congressman. Interestingly, he came from a family of distinguished legal scholars. His father was St. George Tucker (1752-1827) who served as a soldier in the American Revolution, a federal judge, and a law professor at William and Mary. His son was John Randolph Tucker (1823-1897) who was a U. S. Congressman, law professor at Washington and Lee University, and an early president of the American Bar Association.
† Interestingly, the 1789 Judiciary Act had been framed in Congress under the supervision of at least a dozen members of the Constitutional Convention, including Gouverneur Morris, William Samuel Johnson, Robert Morris, William Few, George Read, Richard Bassett, Caleb Strong, James Madison, George Wythe, Abraham Baldwin, and Roger Sherman.77 Furthermore, at least two of the Justices on the Courts that previously saw no fault with the law had also been members of the Convention – Justices William Paterson and Oliver Ellsworth.78
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Revisionism: A Willing Accomplice
The courts are not the only force reshaping American culture; a second major influence is revisionists. This group promulgates a message of radical moral and social change through its use of “historical revisionism” – a process by which historical fact is intentionally ignored, distorted, or misportrayed in order to maneuver public opinion toward a specific political agenda or philosophy. Historical revisionists accomplish their goals by:
Ignoring those aspects of American heritage which they deem to be politically incorrect and overemphasizing those portions which they find acceptable;
Vilifying the historical figures who embraced a position they reject; or
Concocting the appearance of widespread historical approval for a generally unpopular social policy.
Revisionists employ many methods to achieve these goals; nine will be examined in this chapter.
1. The Use of Patent Untruths
The use of untruths was one of the earliest tools effectively employed by revisionists. For example, Robert Ingersoll, a well known political lecturer of the 1880s and 1890s, falsely declared:
[O]ur forefathers retired God from politics…. The Declaration of Independence announces the sublime truth that all power comes from the people. This was a denial, and the first denial of a nation, of the infamous dogma that God confers the right upon one man to govern others…. Our fathers founded the first secular government that was ever founded in this world.1
Charles and Mary Beard proclaimed a similarly false thesis in their 1930 Rise of American Civilization, stating that “national government was secular from top to bottom”2 and that the Founders had “rear[ed] a national government on a secular basis.”3
Even a young elementary student could quickly refute these charges by reading the Declaration of Independence. In fact, based on that document alone, the U. S. Supreme Court noted that our government was not secular since in numerous references it invoked God and His principles into civil government.4
W. E. Woodward, a revisionist active in the 1920s, also employed the use of patent untruths, asserting:
The name of Jesus Christ is not mentioned even once in the vast collection of Washington’s published letters.5
And yet, on June 12, 1779, to the Delaware Indian Chiefs, Washington declared:
You do well to wish to learn our arts and ways of life, and above all, the religion of Jesus Christ. These will make you a greater and happier people than you are. Congress will do every thing they can to assist you in this wise intention.6
Furthermore, in one single document (a well-worn, handwritten prayer book found among Washington’s personal writings after his death), the name “Jesus Christ” was directly used twelve times;7 it also appeared numerous additional times in varied forms (e.g., “Jesus,” “Lord Jesus,” etc.).
In a similar patent untruth, the Beards proclaimed:
In dealing with Tripoli, President Washington allowed it to be squarely stated that “the government of the United States is not in any sense founded upon the Christian religion.”8
As already conclusively proved in Chapter 6, Washington did not make that – or any similar – statement.
What makes the revisionists’ use of patent untruths effective is the failure of most readers to investigate revisionist claims.
2. The Use of Overly Broad Generalizations
Notice how this first technique is applied to George Washington’s religious beliefs:
A product of the Enlightenment, Washington’s terms for God included “Divine Author of our blessed Religion,” “Divine Providence,” and “the Almighty Being who rules over the Universe.” Like many Deists, Washington viewed the supreme being as an overseer and protector of all men, not simply the God of Presbyterians, Episcopalians or Baptists.9 JOHN P. RILEY
George Washington…. seemed, according to the evidence, to have had no instinct or feeling for religion…. He refers to Providence in numerous letters, but he used the term in such a way as to indicate that he considered Providence as a synonym for Destiny or Fate.10 W. E. WOODWARD
George Washington…. seems to have had the characteristic unconcern of the 18th century deist for the forms and creeds of institutional religions…. [H]e often referred to Providence as an impersonal force, remote and abstract.11 STEVEN MORRIS
Revisionists suggest that since Washington used general terms for God, he was therefore irreligious and a deist. The societal inference intended from this charge is that Washington, therefore, would disapprove of the public religious expressions sought by many today.
This generalization incorporates several historical fallacies. First, revisionists fail to mention that the broad, descriptive terms of God used by Washington were also frequently used by the evangelical Christian pastors of the day.12 Those pastors described God in similar or identical terms not generally used in today’s religious terminology; are those pastors, too, to be called “deists”? Second, revisionists deliberately withhold the fact that Washington did use very specific terms, such as “Jesus Christ” and “Christian.” Finally, revisionists artfully omit the historical eyewitness testimonies which debunk their generalizations. For example, George Washington’s adopted daughter declared:
I should have thought it the greatest heresy to doubt his [George Washington’s] firm belief in Christianity. His life, his writings, prove that he was a Christian.13
His contemporaries offered similar impressive testimonies:
To the character of hero and patriot, this good man added that of Christian…. Although the greatest man upon earth, he disdained not to humble himself before his God and to trust in the mercies of Christ.14 GUNNING BEDFORD, SIGNER OF THE CONSTITUTION
[H]e was a sincere believer in the Christian faith and a truly devout man.15 JOHN MARSHALL, REVOLUTIONARY GENERAL; SECRETARY OF STATE; CHI
EF JUSTICE U. S. SUPREME COURT
[I]f we cannot aspire at his talents as a General, a President, or a Statesman, we may imitate his virtues as a man, a citizen, and a Christian.16 ABIEL HOLMES, REVOLUTIONARY SURGEON; HISTORIAN
He was a firm believer in the Christian religion …. For my own part, I trust I shall never lose the impression made on my own mind in beholding, in this house of prayer, the venerable hero, the victorious leader of our hosts, bending in humble adoration to the God of armies and great Captain of our salvation!17 JONATHAN SEWELL, ATTORNEY
Christianity is the highest ornament of human nature. Washington practiced upon this belief…. He was neither ostentatious nor ashamed of his Christian profession.18 JEREMIAH SMITH, REVOLUTIONARY SOLDIER; U. S. CONGRESSMAN; GOVERNOR OF NEW HAMPSHIRE
To portray Washington as a deist, revisionists either must hide such testimonies or call these eye-witnesses liars.
The use of overly-broad generalization is often employed against the collective group of Founding Fathers. For example:
Franklin, Washington, Jefferson, Paine and most of our other patriarchs were at best deists, believing in the unmoved mover of Aristotle, but not the God of the Old and New Testaments.19 MICHAEL MACDONALD