Clause 2

I have my own ideas but let me see what ya'll come up with:

After much debate and arguing, the Founders finally decide to have James Madison write a second clause to Article III Section 1 which reads, "The supreme Court of the United States shall have absolute enforcement power in defence of the laws and statutes of this Constitution."

What happens next?
 
I have my own ideas but let me see what ya'll come up with:

After much debate and arguing, the Founders finally decide to have James Madison write a second clause to Article III Section 1 which reads, "The supreme Court of the United States shall have absolute enforcement power in defence of the laws and statutes of this Constitution."

What happens next?

This might effect the evolution of Native American relations with the U.S. government.
 
Doesn't this violate the separation of powers as well as take on the role of the executive?

Yes, it does. What this proposed clause does is to give the Supreme Court...a body of judges who are not elected by the people, and who serve for life...the powers of the executive branch. You might as well have a king, or rather, a whole council of kings. That is what you have just created.
 
But this would be during the Constitutional Convention, so would the doctrine of "separation of powers" be fully established by then?

Assuming it isn't, I cannot see this being agreed to. As Robert said this smacks of monarchism.
 
But this would be during the Constitutional Convention, so would the doctrine of "separation of powers" be fully established by then?

Assuming it isn't, I cannot see this being agreed to. As Robert said this smacks of monarchism.

No, the doctrine of "separation of powers" was not established yet. But separation of powers was one of the compromises which allowed the Constitution to be adopted. So this proposed clause is a non-starter...if it had been adopted, the most likely result is no final agreement is reached on a new governing document, the Constitutional Convention breaks up, and eventually the country dissolves into individual republics as the unworkability of the Articles of Confederation becomes apparent for all to see.
 
Well the way I see it, the Judiciary has "enforcement power" but that can't really be defined at all without an establishment. Plus separation of powers is such a broad concept at this time, perhaps it could work like this...

1833. The Indian Removal Acts pass without problem in Congress, but Justice Marshall rules in favor of the Cherokees in Worcester v. Georgia.

Now, nothing else in the Constitution changes, the President is still Commander-in-Chief of the Armed Forces, Congress still holds all the purse strings and the right to make an Army/Navy. The most the Supreme Court could do is force an impeachment trial of the President and shoot down the Indian Removal Acts. Although we could still get a similar "let him enforce it" scenario.

What I think would be the trick is that Congress, probably during Washington's term in the 1790s, would pass the Judicial Enforcement Act which would create a sort of policing force led by the Chief Justice.

While military in organization, it's entirely domestic. They cannot be deployed as militia units to fight in defense of the country or be sent abroad to war (however they can choose to go under the First Amendment. But they wouldn't be fighting with a Judiciary uniform.) Judiciary "enforcers" wouldn't be like police officers either. They can't simply enforce federal and state laws to private citizens.

Instead, we could see a scenario with Georgia militia encroaching on Cherokee lands. Judiciary forces, since Jackson refuses to enforce the Court's decision with Federal soldiers, line the border of Cherokee land facing towards the Atlantic. Judiciary soldiers halt the Georgians in their path and order them to return to their homes. The Georgians refuse, the Judiciary enforces their decision.

Of course, in an instance of absolute abuse of this power (something on a Watergate scale) it'd only be a matter of time before Congress exercises their power to impeach and remove a Chief Justice.
 
Also it creates great potential for armed conflict between the separate branches of government, which would be fatal to the chances of a struggling young republic.
 
Since ratification seems to be a problem, why don't we start there. What if the second Clause is written into the Constitution, but without the word "absolute." Make it a little easier for the states to swallow:

"The supreme Court of the United States shall have enforcement power in defence of the laws and statutes of this Constitution."

The Federalists could easily write a paper explaining the need for ratification but for an ability to defend the Constitution should the executive or legislature ever try to bypass it. Ratification plausible?
 
Since ratification seems to be a problem, why don't we start there. What if the second Clause is written into the Constitution, but without the word "absolute." Make it a little easier for the states to swallow:

"The supreme Court of the United States shall have enforcement power in defence of the laws and statutes of this Constitution."

The Federalists could easily write a paper explaining the need for ratification but for an ability to defend the Constitution should the executive or legislature ever try to bypass it. Ratification plausible?

This still assumes that most federalists would find such a notion acceptable.
 
What I think would be the trick is that Congress, probably during Washington's term in the 1790s, would pass the Judicial Enforcement Act which would create a sort of policing force led by the Chief Justice.

While military in organization, it's entirely domestic. They cannot be deployed as militia units to fight in defense of the country or be sent abroad to war (however they can choose to go under the First Amendment. But they wouldn't be fighting with a Judiciary uniform.) Judiciary "enforcers" wouldn't be like police officers either. They can't simply enforce federal and state laws to private citizens.

Instead, we could see a scenario with Georgia militia encroaching on Cherokee lands. Judiciary forces, since Jackson refuses to enforce the Court's decision with Federal soldiers, line the border of Cherokee land facing towards the Atlantic. Judiciary soldiers halt the Georgians in their path and order them to return to their homes. The Georgians refuse, the Judiciary enforces their decision.

So basically we now have 2 armies...one loyal to the President and one to the Chief Justice. And, in addition, the one loyal to the Chief Justice was created solely for the purpose of oppressing the people (as it will certainly be viewed every time they go into action). And the only way they can enforce the decisions of the Chief Justice is to engage in open warfare with the State militias.

Oh yeah, THAT's a good idea. :rolleyes: Fortunately, our Founding Fathers were more sensible than some modern people are.
 
Since ratification seems to be a problem, why don't we start there. What if the second Clause is written into the Constitution, but without the word "absolute." Make it a little easier for the states to swallow:

"The supreme Court of the United States shall have enforcement power in defence of the laws and statutes of this Constitution."

The Federalists could easily write a paper explaining the need for ratification but for an ability to defend the Constitution should the executive or legislature ever try to bypass it. Ratification plausible?

No. It's not plausible. At all.
 
So basically we now have 2 armies...one loyal to the President and one to the Chief Justice. And, in addition, the one loyal to the Chief Justice was created solely for the purpose of oppressing the people (as it will certainly be viewed every time they go into action). And the only way they can enforce the decisions of the Chief Justice is to engage in open warfare with the State militias.

Wait, why would they be used for oppresing the people? Chief Justices are chosen by the President so I would think it would balance out.
 
Wait, why would they be used for oppresing the people? .

Well, the people of Georgia wanted the Cherokee gone. Now you have an army sent by the Chief Justice to force them to accept the Cherokees staying. Furthermore, they are fighting with the Georgia militia and probably dispossessing Georgian "squatters" from their homes. The Georgians...and most Americans at that time...would have considered that both tyranny and oppression on the part of the Supreme Court. Let's face it...if the American people disapproved of Jackson telling John Marshall to go to hell over the Cherokee issue, Jackson would have been impeached. Nobody even suggested that. Of course, once Andy Jackson gets involved and sends in the U.S. Army to back the Georgia Militia, things will get really interesting. :D

Chief Justices are chosen by the President so I would think it would balance out.

Well, you'd be wrong. The Chief Justice is not elected by the people. He serves for life (or until voluntary retirement). What you are suggesting is very anti-democratic, and would have been seen as such by Americans in general both at the time of the Constitutional Convention and at the time of the Cherokee removal crisis.
 
Giving the judicial branch its own enforcement tool would allow it to circumvent the executive branch and its role in the governing of the republic. It would basically make the judiciary the supreme power of the land when it's really supposed to be the smallest of the three equal branches.
 
Of course, once Andy Jackson gets involved and sends in the U.S. Army to back the Georgia Militia, things will get really interesting.

Interesting indeed. Hence the idea.

Still, I'm not so convinced about it being considered tyranny. After all, the purpose of the Judiciary "Army" would be to enforce the Constitution. Not to oppress the people. By the 1830s, most Americans were plenty confident about the Constitution than they were in the 1780s.

Besides, the case of Worcester v. Georgia was in defense of the American living in Cherokee territory. The Cherokee nation, "created" was only an affect of ruling that an American can live among Amerindians.

This could be hailed as a defense of civil liberties in the north but a tromping over states rights in the south. An earlier Civil War between the branches? Now THAT would be very interesting.

Jackson v. Marshall. Epic.

It would basically make the judiciary the supreme power of the land when it's really supposed to be the smallest of the three equal branches.

Kind of the point of adding this clause to the Constitution. It's not really SUPPOSED to be the smallest, it just is. By adding the clause, it makes the Constitution the highest power and just as a side-effect, makes the Courts physically larger.
 
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