America’s Founders Raged Against Qualified Immunity, Trade Restrictions, and Anti-Immigrant Policies

“The Declaration of Independence is probably best known for the panache of its opening and closing stanzas. Those bits about “the course of human events” and the pledging of “our lives, our fortunes, and our sacred honor” suggest that the authors and signers understood the political and historical significance of the moment—and, after all, you can’t have a revolution without a little linguistic dancing.
But the bulk of the document—it’s just 1,330 words; take a moment to read it today—is dedicated not to grand statements about self-evident truths or sweeping philosophical claims.

Mostly, it’s a laundry list of complaints about how the government really sucks.”

The Founders Loved Jury Trials. Almost No One Gets One Anymore.

“What is the Sixth Amendment?

You wouldn’t be blamed for having to consult Google to answer that question. The Founders are rolling in their graves anyway.

It’s the right to a trial by jury, and it’s one that society has all but disposed of—despite the Framers’ insistence that it be included in the Bill of Rights as one of the primary bulwarks against government tyranny.

They didn’t exactly mince words. “Representative government and trial by jury are the heart and lungs of liberty,” wrote John Adams. “Without them we have no fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hogs.”

One wonders what animalistic metaphors Adams would conjure today if he could see the U.S. criminal justice system in motion: one in which about 97 percent of trials are resolved without juries, devoid of the sacrosanct lifeblood that keeps human liberty from death by suffocation.

That tool has been supplanted by the plea bargain. In popular culture, that’s widely seen as advantageous to defendants. In reality, it’s been disastrous. It epitomizes government coercion. It epitomizes what the Founders warned against.”

“The bulk of a prosecutor’s job is not spent in the hallowed halls of a courtroom participating in a high-stakes battle over someone’s liberty, all while journalists wait in the wings to capture the victor’s speech on marble steps. It’s spent in backrooms, with district attorneys “charge-stacking,” or filing multiple criminal charges against someone for the same offense, calculating a grisly potential prison sentence, and offering to make some of that go away—so long as the defendant in question does not exercise his or her constitutional right to a trial by jury.

If they refuse, then they will risk a substantially higher time behind bars, not because a prosecutor views it as necessary for public safety but because he or she dared to inconvenience them with a trial. After all, what the defendant is accused of didn’t change. But trials are expensive. And the government can never be sure when it will win, so better to avoid them where possible.

That latter part—the uncertainty—is supposed to be the point. It’s true that many criminal defendants are guilty. It’s also true that some are innocent and have been forced to pay with their liberty anyway. A person who is not guilty likely wants to go to trial. But why risk a decade behind bars for insisting on your Sixth Amendment right when you could be out in two or three?”

How the Founders Intended to Check the Supreme Court’s Power

“Deeply ingrained in the Constitution genius are checks and balances. The president can veto legislation; Congress can override a veto. The Courts can invalidate an act of Congress or the president. And the executive and legislative branches enjoy checks against the judiciary.

The Constitution called for the establishment of a Supreme Court and lower federal courts. It left it to Congress and the president to decide just what shape the judiciary would take. They did so in the Judiciary Act of 1789, which created district courts, circuit (or appellate) courts, and a six-member Supreme Court. Over the years, Congress, with the president’s approval, has increased and decreased the number of justices on the Supreme Court, created and changed the jurisdiction of district and circuit courts, and adjusted the number of federal judges.

By now, it’s well-known that Congress can change the size, and thus the composition, of the Supreme Court by simple legislation. Court-packing, as it’s been called since 1937, when President Franklin Roosevelt unsuccessfully attempted to circumvent a hostile court by expanding its membership, is a deeply controversial practice.

Critically, but less widely understood, the Constitution also grants Congress the power to strip the Supreme Court of its jurisdiction over specific matters. Article III, Section 2 reads: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

At least one founder was clear about the intent of Section 2. Hamilton wrote, “From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences.”

Defenders of judicial review appropriately point to Federalist 78 as evidence that Hamilton believed the Constitution contained an implicit power of judicial review. But he also believed that Congress could adjust the court’s jurisdiction.

In practice, so few instances exist of jurisdictional stripping that its meaning and scope are open to debate. But it has happened. In the late 1860s, federal authorities jailed William McCardle, a newspaper editor, under provisions of the 1867 Military Reconstruction Act. McCardle sued for his freedom, citing the Habeas Corpus Act of 1867. Congress denied the justices jurisdiction in the matter, and the court conceded that it was powerless to act.

Writing several decades later, Justice Felix Frankfurter, an FDR appointee, noted that “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.” Chief Justice Warren Burger, whom President Richard Nixon placed on the bench, agreed, writing that Congress could pass simple legislation “limiting or prohibiting judicial review of its directives.”

No less than the executive and legislative branches, the judiciary — particularly, the Supreme Court — is limited in just how much power it can exert. But only if Congress and the president exercise their right to check its power.”

“A world in which a highly partisan and increasingly unpopular Supreme Court found its jurisdiction routinely boxed out by Congress is hardly a recipe for political stability. With every change of control, a new Congress and president could overturn precedent and lock the court out of its intended role as a constitutional arbiter. Moreover, there would likely be widespread confusion over just what might happen, were Congress to strip the court of its jurisdiction over, say, the state legislative doctrine. Would it then be left to lower courts to adjudicate cases? And what if they disagreed?

Conversely, today’s court majority claims largely unchecked power.

John Marshall, the chief justice who first asserted the power of judicial review, was “notably cautious in dealing with cases that might excite Republican or popular sensibilities,” noted historian Charles Sellers. He sought consensus among the associate justices, Federalists and Republicans alike, operated with “restraint” (Sellers) and led with “lax, lounging manners” (Thomas Jefferson) rather than cutting partisanship. He did so because he understood that the court was a new institution, and were it to lose popular support, the powers it claimed for itself would become either unenforceable, or subject to congressional restraint.

Ultimately, it is the responsibility and prerogative of the executive and legislative branches to encourage greater restraint and humility on the part of the judiciary.

Judicial review is well-rooted in American political tradition. But so are checks and balances. To save the Supreme Court from itself, Congress might first have to shrink it.”

Impeach an Ex-President? The Founders Were Clear: That’s How They Wanted It

“what did the authors of the Constitution say about the timing of impeachment? That answer should matter a lot to Republicans, who are known for placing great weight in “originalism” when they invoke the Constitution—the meaning of the document when written in 1787 and then ratified by the public.”

“Even though the Constitution’s text does not explicitly address whether the Senate can try a former president, the evidence from English practice, state constitutions, the Constitutional Convention, and the Federalist Papers—all core sources for originalist legal arguments—suggest that its authors fully expected that the Senate would use its power that way.”

“As Hamilton wrote in the Federalist Papers, a core source of original meaning, the framers “borrowed” the model from the English. And, as Raskin pointed out, every English impeachment during the lifetimes of the Founders was of a former official. During the convention debates on impeachment, George Mason mentioned the impeachment of Warren Hastings, a former British official in India, which began during the summer of 1787. No delegate raised any concern about its impropriety. No early state constitution prohibited impeaching a former official—and in fact, Delaware allowed its chief executive to be impeached only “when he is out of office.” Early state constitutions are usually core evidence for originalists. The English and early American practice suggest an emphasis more on punishment—for instance, disqualification from future office—than on removal.

In the 1787 Convention debates, as recorded by James Madison, four convention delegates explicitly discussed the potential problem of incumbent presidents abusing their power at the end of their terms in order to get reelected. Several of them specifically mentioned that election fraud and manipulation of the Electoral College could be grounds for impeachment.”

“When the Convention specifically debated the timing of impeachments, delegates William Davey, George Mason, Edmund Randolph and Gouverneur Morris (the last three considered among the most influential delegates) implicitly rejected the Trump team’s arguments. On July 20, 1787, the Convention turned to the proposed impeachment language, and two delegates, Morris and Charles Pinckney, objected. Madison recorded Pinckney’s objection: A president “ought not to be impeachable whilst in office.” Morris explained that such impeachments of sitting presidents would hand Congress too much power over the president, who might be compromised by fear of impeachment. This argument is similar to the concern about whether a sitting president can be indicted and prosecuted.
William Davie answered, “If [the president] be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. [Davie] considered [impeachment of sitting presidents] as an essential security for the good behaviour of the Executive.”

Morris saw the public as the final arbiter—“In case he should be re-elected, that will be sufficient proof of his innocence,” he said—but neither Morris nor anyone else in the long ensuing debate suggested that a president who wasn’t reelected should be able to avoid impeachment for what he’d done in office. And in fact, several delegates addressed Morris by emphasizing their concerns that presidents might abuse their power at a particularly dangerous time: during bids for reelection.

On that same day, George Mason was especially concerned with election fraud and the Electoral College—with presidents corrupting electors to get elected, and then attempting to stay in power “by repeating his guilt.” It defies logic to think that a president who tried such a scheme could be impeached only if he somehow succeeded and stayed in office—especially given the British precedent of out-of-office impeachments, from which the Founders were drawing.

Then Randolph emphasized broad application: “Guilt wherever found ought to be punished”—reflecting the view that the purpose was not just removal from office, but more broadly punishment for abuses of power.

In the final speech of the debate on July 20, and perhaps the most significant, Gouverneur Morris, a supporter of a strong presidency, conceded that his colleagues had persuaded him to drop his concern about timing and to vote for the impeachment clause. After noting the infamous “Secret Treaty of Dover,” in which England’s Charles II made a corrupt deal with France’s Louis XIV that led to war, Morris concluded that “treachery” justified impeachment. But then he added other reasons, including, “Corrupting his electors, and incapacity.”

He proposed that incapacity, which implied no transgression, be punished only by “degradation from his office.” But corruption during a reelection effort deserved full impeachment, removal and disqualification from office. Impeachment proceedings for such abuses would by definition have to take place after the election. And implicitly, Morris was highlighting the urgency of disqualification for treachery and corruption of the Electoral College, regardless of removal. With Morris’ reversal, the Convention moved to vote, and impeachment prevailed 8-2.”

“The original meaning of the impeachment clauses is that they applied to former presidents, as well as presidents.”

“The point of originalism—and I say this as an originalist legal scholar—is that our Constitution is not supposed to be a wordy document narrowly fixing every point of law, but a framework that depends upon historical context to find meaning and purpose. As Senator Ben Sasse and then-nominee Amy Coney Barrett explained in a helpful exchange during her confirmation hearings, the text is not enough to understand what the Constitution calls for; that’s why, Barrett explained, the Fourth Amendment right against unreasonable searches applies to cars, cellphones and heat detection outside houses.

Contradicting the arguments they conveniently invoke for judicial appointments, the vast majority of Republican senators this week ignored the whole principle of originalism. The historical record before the Senate is clear: The founding generation understood that former officials can be impeached and tried. In looking at the Republicans’ vote this week, it’s hard not to say that the Republicans didn’t just get their history wrong: They imposed their own preferred meaning on the Constitution, following partisanship rather than historical evidence. They embraced the very lawlessness they claim to reject. They used Trump’s four years to fill the federal bench urgently with ostensible originalists. But when the rule of law is now on the line, the Senate Republicans effectively voted to disqualify “originalism” itself.”