What, Exactly, Is the Supreme Court Supposed To Do?

By a vote of 52-48, the U.S. Senate confirmed President Donald Trump’s nomination of Amy Coney Barrett to the U.S. Supreme Court. 

At Judge Barrett’s swearing-in ceremony held at the White House on October 26, President Donald Trump told her:

Justice Barrett, as you take your oath tonight, the legacy of our ancestors falls to you. The American people put their trust in you and their faith in you, as you take up the task of defending our laws, our Constitution, and this country that we all love.

It is strange indeed that in a republic of one 250 million citizens of voting age the protection of their fundamental liberty should be declared by president to depend upon the opinion of one unelected judge.

Strange, but true.

It wasn’t intended to be this way, though. No, the men who drafted and ratified the current Constitution had no idea that they were establishing an oligarchy, a government that would be under the control of men (and women) over whom the people could exercise no electoral control. That, they rightly believed, would be government without consent of the governed and such a government was the antithesis of the republican form preferred by our patriarchs.

Knowing that our Founding Fathers would never have ratified a plan of government establishing rule by an unaccountable cabal of judges, the question begged is what sort of Supreme Court did they intend to create.

The first obvious and overt evidence of their view of the intended power of the Supreme Court that the Framers and ratifiers of the U.S. Constitution left for us is found in Article VI of that document. Article VI reads, in relevant part:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

In that list of those things which would, upon ratification, be afforded the respect of “supreme law of the land” you will not find opinions of the Supreme Court. That was not an oversight. The fact that the framers purposefully left the decisions of the Supreme Court off the list of things constituting the supreme law of the land should be persuasive. The 55 (some days more, some days less) men who sat in the State House in Philadelphia in 1787 would not have endured that sweltering summer only to have accidentally left off something that they intended to have supreme authority in the new government they were creating.

For additional evidence that these men never intended the Supreme Court’s decisions to be granted the deference due the law, it should be recalled that at least 33 of the 55 delegates chosen to represent the states at the convention of 1787 were lawyers. A very commonly invoked legal maxim known to the lawyers in the room — as well as to many others who would have had substantial legal knowledge without ever practicing law (James Madison, for example) should prove persuasive, as well. 

That oft-cited legal maxim is: Designatio unius (est) exclusio alterius, meaning “The designation of one (is) the exclusion of the other.” In other words, the fact that Supreme Court decisions were not listed among those things which would be considered the supreme law of the land, means that it was intentionally left off. Article VI omitted Supreme Court opinions, therefore, they were not to be viewed as part of the supreme law of the land.

A real world application of this maxim will bring its meaning into clearer view. If you tell your son to take out the trash, sweep the garage, and walk the dog before he can go to his friend’s house, you did not intend for him to have to wash the car before he headed out. If your son left after performing all the tasks you set out for him, you wouldn’t ground him for not washing the car before he left. If you had intended for him to have to wash the car, you would have included that task on the list your gave him. You didn’t, so it isn’t required of him.

The constitutional application, then, is that if the framers and ratifiers had intended for the opinions of the Supreme Court to have been enshrined as the supreme law of the land, they would have included it in that list, as set out in Article VI. They didn’t, so they intended to leave it off.

While anyone can look to the record of the debates of the convention of 1787 for evidence that the drafters of the Constitution did not intend the decisions of the national judiciary to rise to the level of legislation, I’ll include here a few of the clearest statements to that effect.

On July 18 the convention took up the question of the federal judiciary and its powers. On that day, James Wilson of Pennsylvania declared his understanding of the relative authority of the legislature and the judiciary:

“Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the judges in refusing to give them effect.”

Read that again. Congress might pass some truly poor and, in fact, bad, laws, but that did not justify judicial interposition. 

Wilson’s understanding is seconded and supported by the very first sentence of the U.S. Constitution: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Here again, had the framers intended for the Supreme Court to have any hand in drafting or defining acts passed by Congress, they would have noted that authority in Article I (the list of legislative powers) or Article III (the list of powers of the federal judiciary). They did not, so it must be accepted that they did not intend to endow the courts with such authority.

Later during that same debate on the proposed power of the federal courts, Elbridge Gerry of Massachusetts said, “The power of making laws ought to be kept distinct from that of expounding the laws.”

A quick jump over to Samuel Johnson’s Dictionary of the English Language (1785 edition) reveals that the word expound means, simply, “to explain.” 

No one today or in 1787 would have believed that explaining is the same as making. I can explain the way the engine in a 1964 Chevy BelAir works, but I couldn’t begin to make one.

Later that summer when the subject of judicial authority was taken up again, Charles Pinckney of South Carolina summed up his understanding of the issue, saying that he “opposed the interference of the judges in the legislative business; it would involve them in parties and give a previous tincture to their opinions.”

Are we not living Pinckney’s prediction today? Would anyone care whether a Supreme Court judge was nominated by a Republican or a Democrat if judges weren’t already tainted with the presumption of partisanship? The fact that the confirmation vote was along party lines is enough to testify to the truth of Pinckney’s proposition.

Finally, on September 17, 1787 39 of the 42 remaining delegates agreed to the final form of the U.S. Constitution, the form we know today. With that vote, the document was sent to Congress and then to the states for their consideration. According to Article VII of the proposed Constitution, “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

Thus began the several states’ deliberation of the constitution as delivered to them by the delegates in Philadelphia. It is during the months of these debates that we find many of the statements from advocates and adversaries of the Constitution as to the power we are to understand the federal judiciary to possess.

Beginning in October 1787, Alexander Hamilton, James Madison, and John Jay took up their pens and wrote a series of 85 letters expounding the Constitution and recommending its ratification. These letters are commonly known as The Federalist Papers. It is in these missives that we find the meaning of many constitutional provisions as understood by the men who supported its adoption. Accordingly, we can afford great authority to these letters.

In Federalist Number 78 Alexander Hamilton expounds on the intended relationship between the judiciary branch and the legislative branch created by the newly endorsed Constitution and whether the former could override the will of the latter when it came to the laws of the United States:

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. (Emphasis in original)

Did you notice the restriction Hamilton recognized on judicial power? He declared that the Supreme Court (or any federal court) could not substitute their will for the intention of the legislature. The justices would be limited to judging the law, not making the law, even, Hamilton writes, if that law was “repugnant.”

Later in that same essay, Hamilton doubles down on his demarcation of the limits on judicial power:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’ (Emphasis in original; the statement quoted by Hamilton are from Montesquieu’s Spirit of the Laws)

Could there be any clearer condemnation of the modern behavior of the federal courts? Federal judges today most certainly do “annoy” and “injure” our rights, regardless of the plain and printed intent of the men who drafted the U.S. Constitution!

While these expositions should be enough to define the metes and bounds of the judiciary branch created by the current Constitution, there were those of the Founding Generation who worried that those limits weren’t as clearly marked as the proponents professed. 

The men who opposed the ratification of the proposed Constitution are known to history by the malapropism Anti-Federalists.

Most of those who published essays exposing what they perceived as weaknesses and dangerous vagaries of the Constitution of 1787 wrote under pseudonyms. One of the most prolific and persuasive of those anonymous authors is Brutus.

In Brutus’s eleventh letter (published in January 1788), the author predicts a latent tyranny present in the judiciary called for in the Constitution:

The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: – I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.

That the judicial power of the United States, will lean strongly in favor of the general government, and will give such an explanation to the constitution, as will favor an extension of its jurisdiction, is very evident from a variety of considerations.

Sadly, there are few objective observers who will dare deny that Brutus’s predictions have come true and that the federal courts have usurped the powers intended to be exercised exclusively by the legislature, namely the power of lawmaking. 

In the second paragraph quoted above, Brutus’s foresight is on full display as he warns that once the federal courts have accumulated legislative and executive power, they will then never fail to decide cases that come before it in favor of the federal government and against the rights of the people of the United States. Can anyone refute this?

In case someone dare deny the truth of this foretelling, Brutus continues his harrowing prophecy of judicial activism and legislating:

When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? And they are authorized to construe its meaning, and are not under any control?

This power in the judicial, will enable them to mold the government, into almost any shape they please. 

Again, readers, can anyone cogently and convincingly argue that the federal courts have molded Constitution into a new shape, a shape that would be unrecognizable to the men who wrote and the men who ratified that document?

Brutus’s final warning to those being called on to consider whether or not to join the union that would be created by the proposed constitution speaks to the lifetime appointment of federal judges and how that would place them beyond the ability of the people to censure or control. In letter 15, Brutus writes:

They have made the judges independent, in the fullest sense of the word. There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. (Emphasis in original)

It is perhaps appropriate at this point to note that at the White House swearing-in ceremony Justice Barrett swore an oath to God to “support and defend the Constitution of the United States, against all enemies, foreign and domestic” and “to bear true faith and allegiance to the same.”

Such a sacred oath should be enough to restrain any judge from placing his or her will above the Constitution’s plain language and the published intent of its drafters.

I will conclude with statements from James Madison and Thomas Jefferson. 

James Madison has been given the honor of being called “The Father of the Constitution.” He himself rejected this monicker, but the weight of his authority in defining constitutional powers is nearly irrefutable, given that he was not only present every day of the Convention of 1787, but he was a delegate at the Virginia ratifying convention and he was the member of the First Congress to propose the Bill of Rights.

In 1800, Madison felt compelled to explain to a minority of members of the Virginia House of Delegates who favored reduced power of the states that their position was historically and constitutionally wrong. He published this position in a document known to history as the Report of 1800. In that paper, Madison addressed the issue of power placed by the Constitution in the judiciary:

However true therefore it may be that the Judicial Department, is, in all questions submitted to it by the forms of the constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power, would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very constitution, which all were instituted to preserve.

I don’t pretend to be worthy of paraphrasing Madison, but in case there was anyone lost in the weeds of his syntax, what Madison said was that if we were to accept that the Supreme Court (or any federal court) had the power to define the limits of its own power, then we believe that there truly are no limits of that authority and that was most affirmatively not the will of the framers of the Constitution. 

Think about it: if we turn to the justices of the Supreme Court to have the final word on whether abortion, gun control, federally mandated health insurance, marriage, or life itself are legal in the United States, we simultaneously have granted to that body unlimited power over everything dear to human existence. 

This was never intended.

Next, consider this statement by Thomas Jefferson on the danger of placing liberty at the mercy of even the most trusted, respected, religious, and right-minded federal judges:

To consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privileges of their corps. Their maxim is ‘boni judicis est ampliare jurisdictionim,’[Good justice expands its jurisdiction] and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time and party its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Finally, while the foregoing does — I hope — thoroughly, albeit briefly, set out those things that federal judges were never intended to have within their power, there is still the lingering question: what did the Framers intend that federal judges would do?

The first step in answering any question about the authority granted to any office created by the U.S. Constitution is to read the relevant article of that document. In the case of the federal judiciary, its powers are listed in Article II.

I won’t copy Article II here, as that is something easy enough for the reader to do on his own. For the purposes of this article, I will reveal the answer to the question posed above by referring to the words of the Framers (and others of the Founding Generation) on that very topic.

Before citing these various statements, though, I believe it should be recalled that one of the chief strengths of the U.S. Constitution is the check and balance given to each branch over its sister branches. This is true of the Supreme Court, as well. That is to say, it has its own set of exclusive authority (balance), but that authority may be kept within constitutional bounds (checked) by the other two branches of the federal government. 

As noted law professor Raoul Berger wrote in his influential book Government by Judiciary, “The judicial role, it cannot be unduly emphasized, was limited to policing constitutional boundaries.” I’ll describe how that looks in real life.

For example, while it is true that “all legislative power” in the federal government is granted to Congress, the president may veto any bill passed by Congress. Likewise, in their turn, the Congress may override the president’s veto.

While it is true that the electors of the several states elect the president, the Constitution grants power to the Congress to impeach and remove a president from office. 

So, how does this apply to Supreme Court? It has a similar relationship regarding checks and balances. Congress and the president may pass and sign a bill into law. What if that law is thought by some to be unconstitutional? Then, that law is presented to the federal judiciary for constitutional analysis. If the law is judged constitutional, then no further action is taken. The law is enforced as every other constitutional law.

If, however, the federal judges declare that in their opinion the law is unconstitutional, then the matter was meant to return to the legislature (Congress) where representatives and senators would decide if they should take the Supreme Court’s advice (opinion) and alter the text of the law, or whether to ignore that opinion. If Congress were to ignore the opinion of the court, then the next check and balance belongs to the president who can refuse to sign the new bill (veto), thus sending it back to the Congress for further consideration.

What if, let’s imagine, a judges or a group of judges begin issuing opinions that laws passed by Congress and signed by the president are unconstitutional? How are such judges to be prevented from usurping the authority of the legislature and the executive? Article II, Section 4 combined with Article III, Section 1 reveals the answer.

Judges who trespass beyond the borders of their constitutional authority into the territory of authority of the other branches may be impeached by Congress. The standard for impeachment is “good behavior.” What does that mean? Good behavior, as that phrase is used in the Constitution, would be behavior whereby one keeps within the boundaries of his authority. To usurp powers not granted to him, would be bad behavior for a judge.

Finally, I offer the following quotes from the men who framed the Constitution or who played a significant role in its ratification as to what they intended to be the legitimate constitutional role of federal judges. These statements, when read with the material above, should illuminate for the reader the scope of the Supreme Court’s authority, thus revealing the real threat posed to the Constitution and to the liberty it was designed to protect by federal judges on any level who take to themselves the powers granted to the legislature or to the executive.

James Wilson said that Congress would be kept inside its constitutional cage “by the interposition of the judicial department.”

Oliver Ellsworth said the court would be “check” on any attempt by legislators “overleap their limits.”

Alexander Hamilton declared that the purpose of the Supreme Court was to serve as “bulwarks of a limited Constitution against legislative encroachments.”

John Marshall wrote, “Courts are mere instruments of the law and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law.”

To sum up, then, the power of the Supreme Court is to check and balance the other two branches, opining on the constitutionality of the acts of the other two branches. There is no power in the Supreme Court (or any federal court) to usurp the powers granted to the other two branches of the federal government. As Thomas Jefferson said, ” If [power is boundless] then we have no Constitution. If it has bounds, they can be no other than the definition of the powers which that instrument gives.”

Congratulations to Justice Amy Coney Barrett. May she always be faithful to the oath she swore to God to be faithful to the Constitution and may Americans never ask her to violate the boundaries of her constitutional authority by requiring her to decide questions never meant to be within the purview or power of the Supreme Court of the United States.

400 Year-old Advice that Could Save Us

Four hundred years ago, before setting foot on that famous rock, 41 passengers aboard the Mayflower signed the Mayflower Compact, a document of immeasurable influence on the country that would become the United States of America.

The pious congregation of Christians known to history as Pilgrims was in their own time called Separatists for their schism with the greater Church of England. Dissension from the Church of England was illegal during the reign of King James the First, and the king was determined to brook no effrontery to his royal highness. He would sooner purge his country of disloyal subjects than allow those subjects to effect a purge of the state religion of which the king was the titular head. To enforce his egotistical and tyrannical will, James sent agents far and wide into the country to round up those Separatists reportedly meeting in secret in small groups to avoid detection by the king’s sycophantic spies.

Fearing imprisonment or worse at the hands of the royal agents, 400 English Separatists fled their beloved England. They sailed surreptitiously to Holland (leaving England without permission was a crime), where the atmosphere was more accommodating to those given to alternative (read: unofficial) interpretations of the word of God. The Dutch were historically more tolerant of religious dissidents and would permit, within limits, pilgrims of many religious creeds to assemble without fear of reprisal or persecution.

Although the Pilgrims found a welcoming harbor in Holland, it proved to be a brief respite, as political situations altered as crucial peace treaties with Spain and France expired, leaving Holland politically unallied and therefore exposed to the avarice of other less-progressive states. As the climate in Holland became increasingly inhospitable, the Pilgrims met to formulate a new plan and consider the options open to them. It was decided that, despite the possible implications, they would return to England, and they immediately set about acquiring investors to fund their ultimate journey: to America. 

As I considered the Mayflower Compact on the anniversary of its signing, my mind was brought less to the text of the Compact and more to the words of John Robinson, the spiritual leader of the Pilgrims.

I’ve read Robinson’s “Farewell Letter to the Pilgrims” many times. Reading this time, though, certain messages seemed to stand out more than others. I believe it is because our time seems so violent, so cruel, and so devoid of Christian kindness that Robinson’s counsel to his congregation sank so deeply into my heart. I sincerely believe that if we were to heed the advice and direction given by Robinson to the Pilgrims some 400 years ago, we could return to a body politic that is much more civil — something for which we would all be grateful to God.

Feeling the sober and historic choices we continue to face in our country, I thought Robinson’s words might inspire readers the way they have inspired me.

First, Robinson suggests we must “daily renew our repentance with our God.” This, Robinson writes, would give us “security and peace in all dangers.” That is certainly something we could all do with more of.

Next, Robinson counsels his congregants to “carefully provide for peace with all men.” In an increasingly violent and vitriolic world, peace is at a premium, but must be sought for if we are to avoid further fighting and bloodshed.

A big part of peace with our fellowman, Robinson explains, is neither offending, nor “easily tak[ing] offense being given by others.” One need only spend seconds on social media to know that we aren’t doing very well at this. These days it seems we’re all too quick to take offense at someone else’s opinions and too quick to share our opinions in offensive ways.

In support of his suggestion to not offend or be offended, Robinson writes that in his experience people who are easily offended or who easily offend have never “proved sound and profitable members in societies.” Certainly, we’d all benefit from being a little more thick-skinned and a little kinder in our discourse, particularly as it relates to politics.

Finally, more than anything else it was the tireless and unwavering faith of our Pilgrim Fathers that kept them alive and animated their firm resolve to bloom where the Hand of the Almighty God had planted them, no matter how rocky, unknown, and hostile the soil.

On this 400th anniversary of the landing of the Pilgrims, may we try to live up to their example of brotherly kindness, Christian charity, and reliance on the grace of God to help our “body politic” be much more civil in 2021.

License Plate Readers: Surveillance on a Smartphone

License plate scanners aren’t just for the surveillance state anymore.

According to a story published by Bloomberg Business Week, your neighbors might have already added the devices to their home security system.

Here’s the explanation:

Maryland-based Rekor Systems Inc. has started offering home video surveillance software through a service called Watchman, starting at $5 a month. In addition to reading a license plate, the system can record a vehicle’s make, color, and body type. In October, Rekor will launch what it says is a “first of its kind” mobile app, which will let users scan license plates with their phone camera. The app could come in handy for schools, to “securely identify valid visitors for student pickup lines” or to manage cars in parking lots, among other uses, the company says.

Yep. You read that right. For about $5 a month, your neighbors could have technology at their fingertips capable of reading a license plate and recording details about your car. 

Standing there in front of their house, your neighbor — or anyone with the app — can point their smartphone camera at your car’s license plate and immediately give law enforcement and government access to all the personal data attached to your car registration.

Not that you should be pleased that such personal information is searched and stored by police — unless they have a warrant, such a collection of data from your license plate violates the Fourth Amendment to the U.S. Constitution — but it’s quite another level of invasiveness for strangers walking down the street to be able to access that information on their phone!

Nathan Wessler, a civil liberties attorney, calls out the genuine privacy concerns that come with having license plate scanning software loaded on smartphones and available to most consumers.

“As companies get their software hooked up to more and more peoples’ cameras that are already out in the wild, we’re going to see these databases grow in really robust ways, which is troubling,” Wessler says. “The data can reveal information about how someone’s living their life, and all that data is sitting on servers of companies. And there’s not very clear legal protection for a lot of that data.

It’s not like Rekor Systems is trying to hide the power (and potential abuse) of their Watchman software package. Here’s the company’s description of the capability of the app:

Watchman enables accurate automatic license plate and vehicle recognition on nearly any IP, traffic, or security camera. Detection results are displayed on a web-based interface, which can be accessed from anywhere. Installation is quick and easy, making it perfect for businesses of all sizes and homeowners alike.

Wow. When it comes to automatic license plate recognition (ALPR) tech installed on smartphones, you don’t want to see words like “everywhere,” “nearly any,” and “quick and easy” used in the promotional literature!

I have to share just one of the several “use cases” highlighted by Rekor on the Watchman website.

Under the label “Protect your family and property,” Rekor promotes the Watchman product with this example of how the product could be used by consumers:

Watchman allows homeowners to increase safety and receive alerts to thwart criminals and keep their loved ones safe. Additionally, Watchman’s vehicle recognition allows homeowners to automate common tasks such as garage door opening, turning on/off lights, and locking/unlocking doors.

OK. There are a few problems with this promo, beginning with the notion that the tech will thwart “criminals.” In the United States, one is not a criminal until they have been: first, charged with a crime; second, been given an opportunity to answer those charges; third, had those charges presented before an impartial tribunal (judge or jury); fourth, being found guilty of the charges; and finally, having received a sentence from an impartial tribunal. 

That, my friends, is what we call due process, and it is what separates us from the totalitarian regimes that round up dissenters and “criminals” without rhyme, reason, or repercussion. We don’t want to become such a society.

I propose the following scenarios as something maybe readers can relate to that might motivate you to be aware and wary of such surveillance technology. 

Two neighbors are arguing for months over some matter and the disagreement has escalated to a heated exchange of words. Now imagine that one of the neighbors subscribes to Rekor’s Watchman security system and he knows that he can go out at night and instantly give law enforcement access to critical personal data simply by pointing his smartphone camera at his neighbor’s license plate.

Or, how about when you’re driving down the road without wearing your tyranny towel (A.K.A. face diaper, A.K.A. COVID mask) and the guy next to you at a stop light has the Watchman app and he turns you in to the police for not obeying the mask mandate.

That’s a whole new level of “see something, say something.”

This, dear readers, is the reason the Fourth Amendment exists and this is why such powerful and invasive technology is turning our very neighborhoods into outposts of the surveillance state.

490 B.C. Project: Why Marathon Matters

“I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past.” 

Patrick Henry, March 23, 1775. 

“Today, I am also pleased to announce that I will soon sign an Executive Order establishing a national commission to promote patriotic education. It will be called the “1776 Commission.” 

With that statement, on September 17 President Donald Trump announced his intent to create a curriculum for public schools that would increase the appreciation for the miraculous founding of this country.

“It will encourage our educators to teach our children about the miracle of American history and make plans to honor the 250th anniversary of our founding. Think of that — 250 years,” the president explained.

Earlier in this proclamation President Trump claimed that his “1776 Commission” was necessary as a counterbalance to the much-maligned “1619 Project” created chiefly by Nikole Hannah-Jones and heavily hyped by The New York Times.

The New American’s Alex Newman describes the reason the Progressives’ proposed “history” lesson has been so widely denounced:

Even the first sentence of the headline of the first essay in the project contains multiple factual errors: “Our democracy’s founding ideals were false when they were written,” it says. Of course, America is not and never has been a democracy. If Hannah-Jones had bothered studying any American history, she could have read The Federalist, No. 10, by James Madison, the Father of the Constitution (and an enemy of slavery), to understand why he rejected democracy as a terrible form of government, and chose to create a republic instead. Instead, the project blasts the “decidedly undemocratic Constitution,” as if that were a bad thing. Also, claiming that America’s founding ideals are false implies that all men are not created equal, a self-evidently racist statement.

The second sentence of the 1619 Project’s opening essay title is deceptive, too. “Black Americans have fought to make them true.” Of course, Americans of all skin tones struggled in the fight, with hundreds of thousands of European-descent Americans dying in the Civil War that freed the slaves in the South. Instead of recognizing that, the racist Project demonizes “white Americans” for their supposed collective “sin” of slavery, while falsely suggesting that black Americans have been left on their own to struggle for freedom against evil “white Americans.”

Now, in fairness, there is no constitutional authority for the president to create curriculum or to issue executive fiats foisting approved history lessons onto the country’s public schools.

That said, in light of the outright lies and outrageous maligning of many of our country’s Founding Fathers that are the core of the “1619 Project,” one could almost forgive President Trump (and those behind his history lessons) for trying to offset the propaganda posing as history.

Recently, however, a few bona fide historians — Morgan E. Hunter, Williamson M. Evers, and Victor Davis Hanson — have proposed their own alternative to the “history” being taught in schools across the country; their suggested curriculum correction is called the “490 B.C. Project.”

Why 490 B.C.? The fact that I have to explain why the historians’ chose that year for the name of their suggest curriculum is evidence of the embarrassing state of classical education in this country.

The Battle of Marathon was fought in that year on the plains near Marathon, Greece, and it saw the victory of the Greeks over the invading Persian forces, thus preventing Athens from becoming a Persian satrapy. Can you imagine the effect on the history of the world if there had been no Golden Age of Athens? There would have been no Socrates, no Plato, no Aristotle, no Pericles, no Demosthenes, no Athenian influence on Rome, no influence of Greece and Rome on England, thus no influence of Greece and Rome on the government of the states and the union.

In short, our society, our government, our very culture would be unrecognizable from that we’ve inherited and enjoyed for over two millennia. 

Here’s how the authors of the newly proposed 490 B.C. Project describe the purpose and power of their proposal:

When Americans knew classical history, they could reach beyond partisan differences by drawing on the shared roots of our civilization. American students once learned, for example, about the Greek victory at Marathon in 490 B.C. This kept Greece from being swallowed up by the Persian Empire and ushered in the Golden Age of Athenian democracy which, for all its shortcomings, was a pathbreaking achievement. Democratic Athens, counterbalanced by Sparta’s tripartite system, led to broad-based polities and ultimately the Roman Republic. From there we trace a clear line to Magna Carta and the Renaissance republics, to the Enlightenment, and ultimately to the American Founding in the years around 1776.

There is no doubt that when compared to the education in the classics received by the Founding Generation (and for generations before them) modern American young people receive next to no training in the teaching of the events and people of the Ancient Greeks and Romans.

This has left generations of contemporary Americans unable to understand many of the events of their own time in a proper historical context, a context that might help them recognize threats to their liberty. As explained by the authors of the “490 B.C. Project:”

Without classical knowledge, Americans are likely to misconstrue the achievements of 1776—not to mention other significant historical moments (as evidenced in recent inconclusive contentions over the events of 1619). Unfortunately, contemporary school curricula leave students with major gaps in their knowledge of classical history and the humanities more broadly.

Not surprisingly, these historians make a very good point. Every day I am asked why we’ve never seen the emergence of another generation of Americans on par with the pantheon of Founding Fathers. There’s a very easy explanation for that lack.

For decades, we have claimed that our education system is able to produce a generation of people as dedicated to liberty as were our ancestors. Thousands of American parents enroll their children in this “Classical Academy” or that “American Academy,” with the belief that the “ingredients” being mixed into our children’s mind are taken from the recipe followed by the parents and teachers of our Founding Fathers. 

This is a lie. For over a hundred years we’ve substituted salt for sugar and then wonder why our cookies tasted so bad! 

While the White House’s “1776 Project” has much to recommend it, the “490 B.C. Project” is much more suited to inculcate our country’s children with the depth of historical awareness that will take us a long way toward restoration not only of an appropriate appreciation for the miraculous founding of our country, but of the ability to identify the causes of cultural catastrophes and thereby avoid the devastating effects of them.

The details of the “490 B.C. Project” are available here.

My own study of the effect of Greece and Rome on the Founding Fathers can be found here.

Privatize the Police Now!

I propose privatizing police power. This is certainly not a new idea, but it is one that is percolating back to the surface of public discourse in the days since violent demonstrations began after several police officers contributed to the murder of George Floyd.

As flames of armed violence between police and protestors engulfs more and more of the country, people of all political persuasions are beginning to search for solutions to the seemingly endless strife.

Privatizing the police simply stated means to return to the people the power of law enforcement, taking it from the government. As the situation stands today, almost all police power is possessed exclusively by some government entity — local, county, state, or federal.

Some concerned citizens are beginning to question the probity of having the police be the servants of the government, rather than of the people.

There is historical precedent for the privatization of law enforcement.

As with so many other questions of the proper locus of power, our Founding Fathers rejected the idea that great power should be placed in the hands of government, at any level.

Hence, it should not be surprising that the Constitution grants no authority to the federal government to participate in law enforcement.

Even state constitutions at the time of the ratification of the federal constitution did not contain provisions granting police power to the government. Most of these constitutions plainly set out the universally accepted policy that law enforcement was, as one writer explained, “a universal duty that each person owed to the community, rather than a power of the government.

Constitutions drafted or in force at the time of the Founding mention law enforcement and the state together only insofar as the latter is explicitly excluded from encroaching upon the people’s natural right to execute the former.

In an article published in the Seton Hall Constitutional Law Journal, constitutional attorney and former federal prosecutor Roger Roots rehearses a forgotten aspect of American history regarding the role of the people in the carrying out of law enforcement duties and how those duties came to be regarded as governmental rather than public responsibilities. Roots writes:

Law enforcement in the Founders’ time was a duty of every citizen. Citizens were expected to be armed and equipped to chase suspects on foot, on horse, or with wagon whenever summoned. And when called upon to enforce the laws of the state, citizens were to respond “not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities [were] convenient and at hand.” (Babington v. Yellow Taxi Corp., 164 N.E. 726 (N.Y. 1928)

A longer quotation from the Babington opinion is relevant and revelatory:

“The main rule we think to be this,” say the historians of our early law (Pollock Maitland, History of English Law, vol. 2, p. 580) “that felons ought to be summarily arrested and put in gaol. All true men ought to take part in this work and are punishable if they neglect it” (cf. Holdsworth, History of English Law, vol. 1, p. 294; vol. 3, p. 599; vol. 4, p. 521; Coyles v. Hurtin, 10 Johns. 85). The law did not limit itself to imposing upon the manhood of the country a duty to pursue. To make pursuit effective there were statutes in those early days whereby a man was subject to a duty to provide himself with instruments sufficient for the task. A typical illustration is the Statute of Winchester, 13 Edw. Ch. I, enacted in 1285. “Immediately upon such Robberies and Felonies committed, fresh Suit shall be made from Town to Town, and from Country to Country.” Every man shall “have in his house Harness for to keep the Peace after the antient Assise.” The amount is to be proportioned to the quantity of *Page 17 lands and goods. Thus, for fifteen pounds of lands and goods there shall be kept “an Hauberke, a Breastplate of Iron, a Sword, a Knife, and an Horse.” We may be sure that the man who failed to use his horse, and who would only go afoot, would have had to answer to the King (Pollock Maitland, History of English Law, vol. 2, p. 577; Holdsworth, History of English Law, vol. 1, p. 294).

The horse has yielded to the motor car as an instrument of pursuit and flight. The ancient ordinance abides as an interpreter of present duty. Still as in the days of Edward I, the citizenry may be called upon to enforce the justice of the State, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand.

Though it seems redundant at this point, I offer this description of the locus of the obligation of law enforcement prior to the establishment of the New York City Police Department in 1844 recited in Beau Riffenburgh’s book Pinkerton’s Great Detective:

“That Pinkerton had the right to take Craig into custody might seem odd, but the system of arrest for crimes was significantly different in the first half of the nineteenth century than today. The first police department in the United States — New York City’s, patterned roughly after the London Metropolitan Police — had only been established in 1844, there were essentially no state law-enforcement and local constables had more civil than criminal duties. Members of the public not only had broad law-enforcement powers, it was considered their duty to aid in the arrest of criminals.” (Emphasis in original)

Is it not now becoming clearer that it is the role of every man in a society to enforce the laws under which he has consented to live?

Is it not now becoming clearer that monopoly control of law enforcement by government is not something our forefathers would have imagined or obeyed?

Even after the creation of government’s monopoly control of police forces, any person could act in the capacity of a constable without being one, and when summoned by a law enforcement officer, a private person became a temporary member of the police department. The law also presumed that any person acting in his public capacity as an officer was rightfully appointed.

Any person could act in the capacity of a constable without being one, and when summoned by a law enforcement officer, a private person became a temporary member of the police department. The law also presumed that any person acting in his public capacity as an officer was rightfully appointed.

Laws in virtually every state still require citizens to aid in capturing escaped prisoners, arresting criminal suspects, and executing legal process. The duty of citizens to enforce the law was and is a constitutional one. Many early state constitutions purported to bind citizens into a universal obligation to perform law enforcement functions, yet evinced no mention of any state power to carry out those same functions. But the law enforcement duties of the citizenry are now a long-forgotten remnant of the Framers’ era. By the 1960s, only twelve percent of the public claimed to have ever personally acted to combat crime.

The Founders could not have envisioned ‘police’ officers as we know them today. The term “police” had a slightly different meaning at the time of the Founding. It was generally used as a verb and meant to watch over or monitor the public health and safety. In Louisiana, “police juries” were local governing bodies similar to county boards in other states.

Only in the mid-nineteenth century did the term ‘police’ begin to take on the persona of a uniformed state law enforcer. The term first crept into Supreme Court jurisprudence even later.

Prior to the 1850s, rugged individualism and self-reliance were the touchstones of American law, culture, and industry. Although a puritan cultural and legal ethic pervaded their society, Americans had great toleration for victimless misconduct. Traffic disputes were resolved through personal negotiation and common law tort principles, rather than driver licenses and armed police patrol. Agents of the state did not exist for the protection of the individual citizen. The night watch of early American cities concerned itself primarily with the danger of fire, and watchmen were often afraid to enter some of the most notorious neighborhoods of cities like Boston.

At the time of Tocqueville’s observations (in the 1830s), “the means available to the authorities for the discovery of crimes and arrest of criminals [were] few,” yet Tocqueville doubted “whether in any other country crime so seldom escapes punishment.” Citizens handled most crimes informally, forming committees to catch criminals and hand them over to the courts. Private mobs in early America dealt with larger threats to public safety and welfare, such as houses of ill fame. Nothing struck a European traveler in America, wrote Tocqueville, more than the absence of government in the streets.

Here’s the longer quotation from Book I, Chapter 6 of de Tocqueville’s Democracy in America, lest anyone accuse me of cherry-picking anti-government gobbets to prove my thesis:

In America the means which the authorities have at their disposal for the discovery of crimes and the arrest of criminals are few. The State police does not exist…. Nevertheless in no country does crime more rarely elude punishment. The reason is, that every one conceives himself to be interested in stopping the delinquent. During my stay in the United States I witnessed the spontaneous formation of committees for the pursuit and prosecution of a man who had committed a great crime in a certain county.

If a reader is still not convinced, Mr. Roots’s article on this subject is heavily footnoted and anyone interested in a more thoroughgoing treatment of the subject of the consolidation by government of all police power is encouraged to read the piece in its entirety.

How, then, given the history of private law enforcement at the time of the Founding and before, did government come to control almost all such duties in our own time?

For much the same reason that government usurps any power naturally belonging to the people: power!

Bruce Benson is a professor at Florida State University and the author of the book To Serve and Protect: Privatization and Community in Criminal Justice. In this commendable analysis of the accumulation by government of law enforcement obligations traditionally held by the community, Benson explains that government began interfering in law enforcement as a means of assuring that any fines owed by convicted criminals were paid into the coffers of government rather than to the victims of the crime, as had been the case traditionally for hundreds of years.

Moreover, government craved control of the administration of justice as it provided an opportunity to dole out and deny favors to those in or out of the favor of the rulers. This enabled corrupt officials to control how much power was exercised over the public and by whom. Included in this pilfered prerogative, of course, is the power to exalt ones cronies by excusing their crimes.

There are those, of course, who would argue that while it may be true that historically much of the enforcement of laws in America was handled by the people in communities, times are different now and we have had publicly funded police for too long to go back.

In reality, however, according to the figures collected by Bruce Benson, there are today approximately three times as many private security personnel than government police forces employed in the United States today.

In fact, the railroads in Canada and the United States are secured by a private police force.

With that in mind, imagine the solutions to the problems of police brutality and brutality against police that American entrepreneurs could create if they were not prevented from doing so by government’s zealous protection of its monopoly control of law enforcement.