THE IRON PEN by Daniel Hite

March 6, 2011

I will not recant, but I do stand corrected.

Filed under: Uncategorized — danielhite @ 10:07 am

I do stand corrected on my comments regarding the actions of the President on DOMA – refusing to defend it in court. After deeper investigation (see below), this procedure is certainly his prerogative as chief executive, BUT, it is well known that his technical objection regarding the indefensibility of DOMA is a ploy to fulfill his campaign promises to the homosexual rights activists who helped elect him. This kind of pragmatism gags me, and I react to it like a gag reflex! I will, with apologies, retract my comments about the president’s constitutional role, but I will not retract anything else in the post.

*  *  *

The Founders affirmed that any of the three branches could review a law for constitutionality. For example, James Wilson (Supreme Court Justice and signer of the Constitution) declared that the President can “refuse to carry into effect an act that violates the Constitution.” [1] An excellent example of this surrounds the four Alien and Sedition laws passed in 1798 by a Federalist Congress and signed by Federalist President John Adams. Under those laws, twenty-five individuals were arrested, and ten convicted.

The law was never declared unconstitutional by the courts, but when Anti-Federalist Thomas Jefferson became President, he believed the law was unconstitutional. He therefore promptly freed all of those imprisoned under it, without regard to the specifics of their particular offense. Jefferson was criticized for nullifying this law, yet notice his response to one critic:

You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment because the power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, were bound to remit the execution of it because that power has been confided to them by the Constitution. [2]

Similarly, when President Andrew Jackson was told to take certain actions by the Supreme Court, he ignored the Court’s order, explaining:

Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. . . . The opinion of the judges has no more authority over the Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. [3]

Later, when the U. S. Supreme Court ruled in Dred Scott that the other branches could not prohibit slavery, the other two branches ignored the ruling. On June 9, 1862, Congress prohibited the extension of slavery into the free territories; and the following year, President Lincoln issued the “Emancipation Proclamation” – both acts were a direct affront to the Court’s decision. Because Congress and President Lincoln were guided by their own understanding of the Constitution rather than by the Judiciary’s opinion, both declared freedom for slaves.

In short, the Founders held that any of the three branches had the constitutional authority to expound the constitutionality of laws. As Thomas Jefferson explained:

[E]ach of the three departments has equally the right to decide for itself what is its duty under the Constitution without any regard to what the others may have decided for themselves under a similar question. [4]

Very simply, the separation of powers wisely permitted each branch to determine within its own sphere what was and was not constitutional.

[1] Debates in the Several State Conventions on the Adoption of the Federal Constitution, Jonathan Elliot, editor (Washington: Printed for the Editor, 1836), Vol. II, p. 446, James Wilson at the Pennsylvania Ratification Debates on Saturday, December 1, 1787.

[2] Thomas Jefferson, Memoir, Correspondence, and Miscellanies, From the Papers of Thomas Jefferson, Thomas Jefferson Randolph, editor (Boston: Gray and Bowen, 1830), Vol. IV, p. 27, to Abigail Adams on September 11, 1804.

[3] James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789-1897(Published by Authority of Congress, 1899), Vol. II, p. 582, “Veto Message” on July 10, 1832.

[4] Thomas Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, editor (Washington D. C.: The Thomas Jefferson Memorial Association, 1904), Vol. XV, p. 215, to Spencer Roane on September 6, 1819.

(Research from Wallbuilders, LLC,

1 Comment »

  1. Wednesday, March 9, 2011

    Dear Dan Hite:

    Thank you for this article.

    We are in one accord.

    Our family’s question: Whether President Obama, you, or ourselves … is what they are doing and/or proposing bringing honor and glory to the Lord Jesus Christ? Ecclesiastes 12:13 is the eternal bottom-line for mankind.


    the Williams’

    Comment by Bud and Nancy — March 9, 2011 @ 9:37 am | Reply

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