Federalist #78: Contra Eric Segall

A. In some countries a single man makes

the laws according to his own pleasure.
Q. What is such a government called?
A. A Despotism, or absolute monarchy:
and the person who thus rules is a
Despot, or absolute monarch.
~Arthur Stansbury, Catechism of the
Constitution[1]

With all respect, and as I shall demonstrate presently, I have both the requisite
historical knowledge and familiarity with your work to fairly conclude that there is
not a lot of that work that can be sourced in the Federalist. One searches in vain
for any endorsement of a “living” or unwritten Constitution among the Framers—a
notion thoroughly disavowed by Madison, Jefferson, and even Marshall. And of
particular import, there isnʼt even any support for your siren song of “judicial
restraint” in F#78—which begs the question of exactly what in Sam Hill you were
talking about here:

Segall: “The irony of your tweets is my solution is to get back to the original
idea of Federalist 78, as I've said and written many times.”

Uh, there was no “original idea” in F#78. It was penned in response to Anti-
Federalist criticism that the judiciary would become a despotic branch (they were
right), trying to justify what the Framers had done. I would therefore submit that
F78 should be read in pari materia with F22, F37, F79-83, Brutusʼ broader attack
on COTUS, and most significantly, F51. Therein, Madison writes:

But what is government itself, but the greatest of all reflections on human
nature? If men were angels, no government would be necessary. If angels
were to govern men, neither external nor internal controls on government
would be necessary. In framing a government which is to be administered by
men over men, the great difficulty lies in this: you must first enable the
government to control the governed; and in the next place oblige it to control
itself.

Federalist #78: “Our Constitution Doesnʼt Stink THAT Badly”

Before I went to law school, I was a C.P.A. We think in terms of internal controls. Or
to put it prosaically, “How do you keep John from stealing from the Company?” As
Madison wrote a scant two years before the Constitution was written:

The preservation of a free Government requires not merely, that the metes and
bounds which separate each department of power be invariably maintained;
but more especially that neither of them be suffered to overleap the great
Barrier which defends the rights of the people. The Rulers who are guilty of
such an encroachment, exceed the commission from which they derive
their authority, and are Tyrants. The People who submit to it are governed
by laws made neither by themselves nor by an authority derived from
them, and are slaves. [James Madison, Memorial and Remonstrance against
Religious Assessments, Jun. 20, 1785]

Judge Richard Sanders of the Washington Supreme Court offers a concurrence:

“In a society of equals there is simply no room for those who under color of law,
but without the legitimate authority of the law, wrongfully impose themselves as
superiors upon those who are really their equals. This is just another form of
slavery—it differs in degree, but not in kind. It is domination without consent.”
Richard B. Sanders (Justice, Washington Supreme Court), Original Consent
(Speech to the Tacoma-Pierce County Bar Assn.), Feb. 13, 1997.

As Ronald Reagan put it, some governments "make elaborate claims that citizens
under their rule enjoy human rights," … but "[e]ven if words look good on paper,
the absence of structural safeguards against abuse of power means they can be
taken away as easily as they are allowed." Ronald Reagan, Speech (Proclamation of
Human Rights Day), Dec. 10, 1987. The Framersʼ solution to the omnipresent
threat of despotism was a written constitution. As John Marshall wrote in Marbury
v. Madison,

To what purpose are powers limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time, be passed by those
intended to be restrained? The distinction between a government with limited
and unlimited powers is abolished, if those limits do not confine the persons
on whom they are imposed [including judges], and if acts prohibited and acts
allowed, are of equal obligation. It is a proposition too plain to be contested,
that the constitution controls any legislative act repugnant to it; or, that the
legislature may alter the constitution by an ordinary act.

Between these alternative there is no middle ground. The constitution is

either a superior paramount law, unchangeable by ordinary means, or it is on a
level with ordinary legislative acts, and, like other acts, is alterable when the
legislature [or judiciary] shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to
 the constitution is not law: if the latter part be true, then written
constitutions are absurd attempts, on the part of the people, to limit a
power in its own nature illimitable. [MvM, at 176-77]

[As an aside, it galls me to have to cite MvM so often to judges and scholars.]

A zebra is a horse designed by committee; as brilliant as it was at points, the

proposed constitution had an array of latent defects—the most glaring of which
was the apparent lack of controls on the judiciary. In March, 1788 (the tImelIne,
http://teachingamericanhistory.org/ratification/timeline-brutus/, Is crItIcal) the
Anti-Federalist “Brutus” [probably, Judge Robert Yates] (B#15) warned:

I said in my last number, that the supreme court under this constitution would
be exalted above all other power in the government, and subject to no
controul. The business of this paper will be to illustrate this, and to shew the
danger that will result from it. I question whether the world ever saw, in any
period of it, a court of justice invested with such immense powers, and yet
placed in a situation so little responsible.

I concur wIth Professor Levy, L.W. Levy, Judicial Review and the Supreme Court:
Selected Essays 6 (1967) that F#78-83 was a comprehensive response to Brutus
—a seriatim response to claims that it was riddled with fatal flaws. F#79
addresses the need for fixed salaries; F#80 speaks to the proper scope of the
proposed SCOTUS. But in F78, Hamilton focuses like a laser on the obvious
problem of judicial overreach, and Brutusʼ assertion that there was a need for
some form of remedy for abusive judicial behavior:

A constitution is a compact of a people with their rulers; if the rulers break the
compact, the people have a right and ought to remove them and do
themselves justice; but in order to enable them to do this with the greater
facility, those whom the people chuse at stated periods, should have the
power in the last resort to determine the sense of the compact; if they
determine contrary to the understanding of the people, an appeal will lie to the
people at the period when the rulers are to be elected, and they will have it in
their power to remedy the evil; but when this power is lodged in the hands
of men independent of the people, and of their representatives, and who
are not, constitutionally, accountable for their opinions, no way is left to
controul them but with a high hand and an outstretched arm. [B#15]

Brutusʼ warning was prescient. And this is the problem you havenʼt effectively
acknowledged—to say nothing of solving. How do you control a dictator?
Good Behaviour Tenure: The Ultimate Antidote To Judicial Tyranny
Hamilton did his level best to at least try to dispel Brutusʼ incisive objections. His
best argument—one that has been all-but-lost on modern scholars—was that
judgesʼ lifetime sinecures were conditioned on maintenance of “good Behaviour.”

It is a tragic testament to the abysmal state of modern legal scholarship that a

scholar of the stature of Martin Redish actually suggested that the phrase “during
good behavior” could be the Constitutionʼs “most mysterious provision.”[2] And
again, your scholarship—and obvious lack of familiarity with F#78—was on florid
display.[3] The stricture of good behavior tenure was central to Hamiltonʼs
argument:

According to the plan of the convention, all judges who may be appointed by
the United States are to hold their offices DURING GOOD BEHAVIOR; which is
conformable to the most approved of the State constitutions and among the
rest, to that of this State. Its propriety having been drawn into question by the
adversaries of that plan, is no light symptom of the rage for objection, which
disorders their imaginations and judgments. The standard of good behavior for
the continuance in office of the judicial magistracy, is certainly one of the
most valuable of the modern improvements in the practice of government. In a
monarchy it is an excellent barrier to the despotism of the prince; in a republic
it is a no less excellent barrier to the encroachments and oppressions of the
representative body. And it is the best expedient which can be devised in any
government, to secure a steady, upright, and impartial administration of the
laws. …

Upon the whole, there can be no room to doubt that the convention acted
wisely in copying from the models of those constitutions which have
established GOOD BEHAVIOR as the tenure of their judicial offices, in point of
duration; and that so far from being blamable on this account, their plan would
have been inexcusably defective, if it had wanted this important feature of
good government. The experience of Great Britain affords an illustrious
comment on the excellence of the institution.

Why DID Hamilton rely so heavily on that condition? If you were conversant wIth
the relevant scholarshIp of Raoul Berger (and to a lesser extent, Sai Prakash and
Steve Smith), you wouldnʼt have to ask. But as I have actually attempted to litigate
the question, I know the topic cold.

Although most agents of the Crown served "at the pleasure of the King," many key
officials received a freehold in their offices, conditioned on "good behavior." See
e.g., 4 E. Coke, Institutes * 117 (re: Baron of the Exchequer—a judge!). Lesser lords
were given the authority to bestow freeholds, creating a multi-tiered political
patronage system where everyone from paymasters to parish clerks enjoyed job
security. See, Harcourt v. Fox [1692], 1 Show. 426 (K.B.) (clerk of the peace).

At common law, the good behavior tenure of officeholders was enforced by the
sovereign through the writ of scire facias. But as this power concerned only the
interests of his subjects, and the King exercised it only in parens patriae, he was
bound by law to allow the use of it to any subject interested. Blackstone explains:

WHERE the crown hath unadvisedly granted any thing by letters patent, which
ought not to be granted, or where the patentee hath done an act that
amounts to a forfeiture of the grant, the remedy to repeal the patent is by
writ of scire facias in chancery. This may be brought either on the part of the
king, in order to resume the thing granted; or, if the grant be injurious to a
subject, the king is bound of right to permit him (upon his petition) to use his
royal name for repealing the patent in a scire facias. [3 Blackstone,
Commentaries * 260-61]

By making an officeholder subject to removal for violating it, the condition of

“good behavior” defined the powers of a given office. Coke listed three grounds
for the forfeiture of that tenure: abuse of office, nonuse of office, and willful
refusal to exercise an office. Saikrishna Prakash and Steve D. Smith, How to
Remove a Federal Judge, 116 Yale L.J. 72, 90 (2006) (citing Cokeʼs Institutes).
Blackstone added that "the oppression and tyrannical partiality of judges, justices,
and other magistrates, in the administration and under the colour of their office
[could be prosecuted] either by impeachment in parliament, or by information in
the court of king's bench." 4 Blackstone, Commentaries at 140-41. Thus, by
implication, the duty to be fair and impartial was an integral part of the 18th
Century English judgeʼs job description.[4]

“When an office held ‘during good behaviorʼ is terminated by the granteeʼs

misbehavior, there must be an ‘incidentʼ power to ‘carry the law into executionʼ if
‘good behaviorʼ is not to be an impotent formula.” Raoul Berger, Impeachment: The
Constitutional Problems, 2d ed. (Harvard U. Press, 1999), at 132. As Madison said:
"‘No axiom is more clearly established in law, or in reason, than that wherever the
end is required, the means are authorized.ʼ" Id. at 138 (quoting F#44). Accordingly,
even though there is no express means available by which one effects a removal of
a federal judge for violation of good behavior tenure, the courts are obliged to
devise one. See, Marbury v. Madison, 5 U.S. at 163. Such a power must exist, as
"[a] constitutional provision should not be construed so as to defeat its evident
purpose, but rather so as to give it effective operation and suppress the mischief
at which it was aimed." Jarrolt v. Moberly, 103 U.S. 580, 586 (1880). That the
Constitution does not state one explicitly is of no moment, for as Chief Justice
Marshall notes, "we must never forget that it is a Constitution we are expounding,"
as the alternative would have been a prolix and virtually incomprehensible "legal
code." McCullough v. Maryland, 17 U.S. 316, 407 (1819).

Now, compare this to Sec. 8 of the Judiciary Act of 1789, which remains unaltered
to this day:

And be it further enacted, That the justices of the Supreme Court, and the
district judges, before they proceed to execute the duties of their respective
offices, shall take the following oath or affirmation, to wit: "I, A. B., do
solemnly swear or affirm, that I will administer justice without respect to
persons, and do equal right to the poor and to the rich, and that I will faithfully
and impartially discharge and perform all the duties incumbent on me as ,
according to the best of my abilities and understanding, agreeably to the
constitution, and laws of the United States. So help me God."

Penned by Justice Wilson, Article III was a marvel of brevity and efficiency. Every
act that would be a violation of the oath of office is also a violation of good
behavior tenure; every judge was fairly noticed as to what would get him fired.
The creation of one Supreme Court obliged that Court to superintend the actions
of all lower courts; an absolute right to certiorari review protected the citizen from
out-of-control judges.

The beauty of this system cannot be understated. On the one hand, good
behavior tenure protected judges from untoward encroachments by the Executive,
as Prakash and Smith observed: Barons of the Exchequer enjoyed good behavior
tenure, which Sir John Walker used defensIvely to prevent removal from office by
Charles I. [5] On the other, judges were answerable to the people they swore out
oaths to serve, thereby preserving Montesquieuʼs ideal of separation of powers.

That it was not a clumsy cross-reference to the Art. II impeachment power is

shown conclusively by the contemporaneous evidence. First off, The Act of
Settlement [1701] 12 & 13 Will. 3, c. 2, §3, provided that "Judges Commissions be
made Quamdiu se bene gesserint; … but on the Address of both Houses of
Parliament, it may be lawful to remove them." As a matter of law and logic, if “good
behavior” merely cross-referenced impeachment, it would have been redundant,
as Parliament could fire a judge for any reason or no reason at all. As Harvardʼs
legendary Raoul Berger wrote, "the decided preponderance of authority, Lord
Chancellor Erskine, Holdsworth, and others, consider that this provision did not
exclude other means of [judicial] removal, that is, by impeachment, scire facias, or
criminal conviction." Raoul Berger, Impeachment: The Constitutional Problems 157
(1974).

Second, as Prakash and Smith assert, “Americans clearly did not confuse or
conflate impeachment with removal for breach of a good behavior condition. Some
state constitutions expressly allowed for removal of officials with good behavior
tenure in the ordinary courts, and some granted good behavior tenure even
though they did not provide for impeachment at all. … [Moreover,] The 1787
Northwest Ordinance granted territorial judges good behavior tenure,” despite the
fact that the Continental Congress had no mechanism for impeaching anyone.
Saikrishna Prakash & Steven D. Smith, Removing Federal Judges Without
Impeachment, 116 Yale L.J. Pocket Part 95 (2006), http://yalelawjournal.org/forum/
removing-federal-judges-without-impeachment.

Third, Congress embraced this understanding a century ago in the investigation of

Judge Emory Speer of the District of Georgia, charged with “despotism, tyranny,
oppression, and maladministration” in the course of hIs judicial decision-making.
Charles Geyh, When Courts and Congress Collide: The Struggle for Control of
Americaʼs Courts 160 (U. Mich. Press 2008). Specifically, a congressional
committee concluded that “a series of legal oppressions [constituting] an abuse of
judicial discretion” did not constitute an impeachable offense, id. at 160-61
(quotations omitted), despite being self-evident serial violations of good behavior
tenure.

And finally, the Framers just didnʼt DO “clumsy,”

This system would have worked perfectly … but for the fatal flaw identified by
Brutus and inexplicably, embraced by one Eric Segall: “It is emphatically the
province and duty of the judicial department to say what the law is.” MvM, at 177.
In practIcal terms, “the Constitution means what judges say it means and the text
just doesnʼt matter.” ES, The Constitution Means What the Supreme Court Says It
Means, 129 Harv. L. Rev. F. 176 (Feb. 10, 2016).

And the problem with that arrangement is obvious to anyone familiar with the
Federalist: “No man is allowed to be a judge in his own cause, because his interest
would certainly bias his judgment, and, not improbably, corrupt his integrity.” F10
[Madison] When a judge has a dog in the hunt, s/he will never fail to pet it, and for
over two centuries, our hopelessly corrupt, self-interested judiciary has
“systematically eliminat[ed] checks upon its own power.” Planned Parenthood of
S.E. Pa. v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., dissenting).

On the one hand, Eric Segall counsels that we “get back to the original idea of
Federalist 78.” On the other, ErIc Segall counsels that we should not only accept a
judicial coup dʼetat, but eagerly embrace it.

Will the real Eric Segall please stand up?

A Written Constitution As Fundamental Law: A Second Firebreak
Against Tyranny
“[T]he judicial [department] shall never exercise the legislative and executive
powers, or either of them; to the end it may be a government of laws, and not of
men.” Mass. Const. Part I, Art. XXX (1780). To a man, the Framers were inveterate
originalists, who insisted that judges interpret the laws as opposed to writing
them. As an integral part of his argument that the proposed judiciary was not as
dangerous as Brutus correctly averred, he wrote: “A constitution is, in fact, and
must be regarded by the judges, as a fundamental law.” F#78. Heedless of this,
you inexplicably declare:

“[I]t is past time that judges, scholars, and the American people accept that,
in constitutional litigation at least, the Constitution means what judges say it
means and the text just doesnʼt matter.”

One is left to wonder how you get to that jaw-dropping conclusion from the four
corners of the text of F78 and the rules of law Hamilton relied on. Hamilton put
this canard to rest in F#78:

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 judiciary was entrusted wIth the judicial Power, which was universally
understood to be jus dicere (to interpret the law), not jus dare (to write it). But in
apparent contempt for F#78, you declare:

Within a few days of each other, one of our leading constitutional law scholars
and one of our most prominent federal judges announced publicly that
constitutional law is about judicial lawmaking, not textual interpretation.

Whereas you seem infatuated with judocracy, Hamilton most certainly was not. He
left a narrow avenue for judicial discretion, but only in specified circumstances.

This exercise of judicial discretion, in determining between two contradictory

laws, is exemplified in a familiar instance. It not uncommonly happens, that
there are two statutes existing at one time, clashing in whole or in part with
each other, and neither of them containing any repealing clause or expression.
 In such a case, it is the province of the courts to liquidate and fix their
meaning and operation. So far as they can, by any fair construction, be
reconciled to each other, reason and law conspire to dictate that this should
be done; where this is impracticable, it becomes a matter of necessity to give
effect to one, in exclusion of the other.

More importantly, Hamilton does not lend succor to the concept of judicial
lawmaking. And while I freely admit that our Imperial Judiciary has illegitimately
usurped power beyond reason, it is impossible to find where you could have
derived the Framersʼ permission to do so from F#78. Bottom line, Hamilton calls
you a bald-faced liar:

There is yet a further and a weightier reason for the permanency of the judicial
offices, which is deducible from the nature of the qualifications they require. It
has been frequently remarked, with great propriety, that a voluminous code of
laws is one of the inconveniences necessarily connected with the advantages
of a free government. To avoid an arbitrary discretion in the courts, it is
indispensable that they should be bound down by strict rules and
precedents, which serve to define and point out their duty in every
particular case that comes before them.

Whereas Hamilton speaks of “strict rules and precedents,” you speak as though
COTUS doesnʼt exist! You might be able to get that from an Ely, a Posner, or a
Tribe, but you certainly canʼt derive it from the four corners of F#78, or even the
writings of the Framers. As Madison observes, there is one and only one proper
way to interpret the Constitution: “I entirely concur in the propriety of resorting to
the sense in which the Constitution was accepted and ratified by the nation. In
that sense alone is it the legitimate Constitution. And if that not be the guide in
expounding it, there can be no security for a consistent and stable, more than for a
faithful exercise of its powers.” James Madison, Writings of James Madison:
1819-1836 191 (G. Hunt ed. 1910). Thomas Jefferson adds: “Our peculiar security
is in possession of a written constitution. Let us not make it a blank paper by
construction. If [public officialsʼ powers are 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.” Thomas Jefferson, Letter (to Wilson C.
Nicholas), Sept. 7, 1803 at 2.

Eric Segallʼs SCOTUStitution: How The Judiciary Shit-Canned The

Bill Of Rights
Citing other scholars—your work tends to be a tad heavy on rehashing the
scholarship of others—you have chronicled a frightening array of incidents of
flagrant judicial lawmaking:
 “Professor Strauss points to numerous examples of constitutional “anomalies”
that most people take for granted today where Supreme Court decisions are
completely inconsistent with or at great odds with constitutional text. For
example … the word “another” in the Eleventh Amendment limiting suits
against states to plaintiffs from “another” state has been interpreted by the
Supreme Court to somehow mean the “same” state [this isnʼt technically
true].

The Constitution is painfully clear: “In all Cases … in which a State shall be Party,
the supreme Court shall have original Jurisdiction. U.S. Const. art. II, § 2, cl. 2.
And no State shall “deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, § 1. As that legal duty is owed by the
State, where it failed to discharge it, it is a proper party defendant, which may be
sued in
SCOTUS in an original action. At least in my State, a controlling jurisdictional fact
is that the State has acknowledged that it does not enjoy sovereign immunity.
Evans v. Bd. of County Com'rs, 482 P.2d 968 (Colo. 1971). Ergo, it cannot invoke
it, either as an affirmative or a jurisdictional defense. Cf., Alden v. Maine, 527 U.S.
706 (1999).

Moreover, there is precedent for the fact that a jury trial may be had in SCOTUS.
The Court has held that the right to trial by jury is the one existing “under the
English common law when the Amendment was adopted," Baltimore & Carolina
Line, Inc. v. Redman, 295 U.S. 654, 657 (1935), and if a procedure alters the
substance of the English common law jury trial as it existed back in 1791,
Thompson v. Utah, 170 U.S. 343, 350 (1898) ("common law" refers to English
common law, in 1791), it is unconstitutional. Period. Full stop.

And hereʼs the kicker: The signal feature of the jury trial in 1791 was that the jury—
not the judges!—had lawful authority to “determine the law as well as the fact in
controversy.” Georgia v. Brailsford, 3 U.S. 1, 4 (1793) (jury instructions of Jay, C.J.).
By taking the ultimate decision-making power out of the hands of judges, the
Seventh Amendment preserved one of the "transcendent privileges" of an
Englishman: "that he cannot be affected either in his property, his liberty, or his
person, but by the unanimous consent of twelve of his neighbours and equals.” 4
Blackstone, Commentaries * 379.

As Justice Stevens explains, J.P. Stevens, “Two Questions About Justice,” 2003 U.
Ill. L. Rev. 821, by its terms, the Eleventh Amendment did not alter that calculus; a
proposed Amendment prohibiting citizens of a State from suing that State in
federal court was expressly rejected. Moreover, Alden was decided not on the
grounds of the Eleventh Amendment but rather, the judge-made law of sovereign
immunity. Sovereign immunity cannot be found in the Constitution, according to
the famed constitutional scholar [sarcasm] Antonin Scalia—albeit not while
speaking ex cathedra. Antonin Scalia, Historical Anomalies
in Administrative Law, Y.B. Supreme Court Hist. Socʼy. 103 (1985).

Still, the most blatant act of judicial self-dealing is claimed by the doctrine of
absolute judicial immunity. It is a medieval common-law doctrine, tracing its origin
to the notorious Star Chamber of the Tudors. Floyd and Barker [1607] 77 Eng.Rep.
1305 (Star Chamber). Created by judges for the benefit of judges, it is predicated
upon a sophistry even Lewis Carroll would find impenetrable. Professor
Olowofoyeku of Londonʼs Brunel University justifiably ridicules it: “You have been
injured by the misconduct of a judge. We have to deny you redress. This is
necessary because we have to protect your interests by protecting
the judges, so that they in turn can protect your interests without fear of
apprehension.” Abimbola A. Olowofoyeku, Suing Judges: A Study of Judicial
Immunity 197 (Oxford U. Pr. 1993).

No sane man would ever willingly strike such a bargain, and the very notion of a
rule of law precludes it. Since Canada enacted its own bill of rights (the Charter of
Rights and Freedoms), the Supreme Court of Canada rejected the doctrine of
immunity, finding it irreconcilable with the very concept of rights under law, Nelles
v. Ontario, 2 S.C.R. 170 (1989) (Canada)—joining the rest of the civilised world.
E.g., Simpson v Attorney-General (Baigentʼs case), 3 NZLR 667 (CA 1994) (New
Zealand), Maharaj v Attorney-General of Trinidad & Tobago (No. 2) [1979] AC 385;
Case C-224/01, Köbler v Austrian Republic [2003] 3 CMLR 28) (European Union).
Professor Chemerinsky piles on, explaining that it places a common-law principle
above the Constitution itself, obliterating the Supremacy Clause and extinguishing
"the right of every individual to claim the protection of the laws, whenever he
receives an injury." Erwin Chemerinsky, "SEE NO EVIL: Sovereignty Immunity Puts
States Above the Law, Implying They Can Do No Wrong," Mar. 21, 2001, L. A. Daily
J. at 6 (quoting Marbury v. Madison, 5 U.S. at 163). But whenever an unelected
and unaccountable judge is forced to choose between fealty to the
Constitution and his personal self-interest, he is going to pick the latter every
time.

The entire purpose of the Fourteenth Amendment was to protect Americansʼ

rights from abuses by the States. And to make matters worse, we entered into a
binding treaty, where we agreed to “ensure that any person whose rights or
freedoms as herein recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons acting in an
official capacity.” Intʼl Covenant on Civil and Political Rights, Art. 2, para. 3(a), 999
U.N.T.S. 171 (entered into force Mar. 23, 1976) (ratified by the United States Sept.
8, 1992).
Under the Framersʼ Constitution, I could waltz down to One First Street, pay my
$400, and demand a trial by jury in my effort to hold my State accountable for
willful violations of my rights. But under the Eric Segall SCOTUStitution, I donʼt
HAVE any rIghts at all, for to “take away all remedy for the enforcement of a
right is to take away the right itself.” Poindexter v. Greenhow, 114 U.S. 270, 303
(1884).

I canʼt even get to where youʼre at by following precedent. “The very essence of
civil liberty certainly consists in the right of every individual to claim the protection
of the laws, whenever he receives an injury. One of the first duties of government
is to afford that protection.” MvM at 163. It is the province of the Court to give life
to our lawmakersʼ intent. United States v. American Trucking Assns., 310 U.S. 534,
542 (1940). "Courts are constituted by authority and they can not go beyond the
power delegated to them. If they act beyond that authority, and certainly in
contravention of it, their judgments and orders are regarded as nullities." Vallely v.
Northern Fire & Marine Ins. Co., 254 U.S. 348, 353 (1920). “To enact a law under
the pretense of construing one … [is] a flagrant perversion of the judicial power."
Heiner v. Donnan, 285 U.S. 312, 331 (1932). While I would stipulate that our
judiciary has done what you claim they have, I would also assert that they have
done so without colorable warrant in law, and deserve the fate of Sisamnes,
whom the the Persian vassal lord Cambyses turned into upholstery.
Herodotus, Histories, Bk. V, § 26 (~430 BCE). Their illegitimate and tyrannical acts
have rendered the Constitution itself nugatory, as "representative democracy
ceases to exist the moment that the public functionaries are by any means
absolved from their responsibility to their constituents." 1 Tucker, Blackstone's
Commentaries 297 (1803) (editor's appendix).

Iʼll ask again: Where do you find such awesome judicial powers in F#78?

No Warrant For Voluntary Judicial Restraint Can Be Found In

Federalist #78
To me, the absolutely weirdest part of your argument is your bizarre claim that the
Court should never have decided Roe. To hear Hamilton tell it, our judges are
called upon to “guard the Constitution and the rights of individuals from the
effects of those ill humors, which the arts of designing men, or the influence of
particular conjunctures, sometimes disseminate among the people themselves,
and which, though they speedily give place to better information, and more
deliberate reflection, have a tendency, in the meantime, to occasion dangerous
innovations in the government, and serious oppressions of the minor party in the
community.” F#78. CJ Marshall takes the analysis one step further:
 It is most true that this Court will not take jurisdiction if it should not; but it is
equally true that it must take jurisdiction if it should. The judiciary cannot,
as the legislature may, avoid a measure because it approaches the confines of
the Constitution. We cannot pass it by because it is doubtful. With whatever
doubts, with whatever difficulties, a case may be attended, we must decide it
if it be brought before us. We have no more right to decline the exercise of
jurisdiction which is given than to usurp that which is not given. The one or the
other would be treason to the Constitution. Questions may occur which we
would gladly avoid, but we cannot avoid them. All we can do is to exercise our
best judgment and conscientiously to perform our duty. [Cohens v. Virginia, 16
U.S. 264, 404 (1821).]

Bottom line, the Framers expected that if you brought a non-frivolous claim to a
court with jurisdiction, it literally had no choice but to hear it. And under what
conceivable authority could a court take a pass on the question in Roe? The State
of Texas had enacted a statute limiting its constituentsʼ freedom of action.
Abortion before quickening was legal at common law. What you think the law
should be is not my concern. Not being a religious zealot, I could literally care
less. And more to the point, you could make the same argument for Lawrence,
Windsor, and Obergefell: “Let the [tyrannical] majority decide our individual
rights!”

To hear Justice Wilson tell it, judicial restraint was baked into the system, and in a
clever way. It was his view that supervision of lower courts was one of the
essential duties of SCOTUS:

To express myself without a metaphor—in every judicial department, well

arranged and well organized, there should be a regular, progressive gradation
of jurisdiction; and one supreme tribunal should superintend and govern all
the others.

An ar[r]angement in this manner is proper for two reasons. 1. The supreme

tribunal produces and preserves a uniformity of decision through the whole
judicial system. 2. It confines and it supports every inferior court within the
limits of its just jurisdiction.

If no superintending tribunal of this nature were established, different courts

might adopt different and even contradictory rules of decision; and the
distractions, springing from these different and contradictory rules, would be
without remedy and without end. Opposite determinations of the same
question, in different courts, would be equally final and irreversible.

2 The Works of James Wilson 149-50 (J. D. Andrews ed., 1896) (emphasis added).
In England, Kingʼs Bench was tasked with the duty of supervision over all lower
courts, and had the power to issue all writs necessary for the discharge of that
duty, widely referred to as “prerogative writs” because they essentially do the
same thing. “The underlying policy is that all inferior courts and authorities have
only limited jurisdiction or powers and must be kept within their legal bounds. This
is the concern of the Crown, for the sake of orderly administration of justice, but it
is a private complaint which sets the Crown in motion.” Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675 (India). Issuance of the so-called “prerogative
writs” was mandatory, in “the aid of which the subject is intitled, upon a proper
case shown, to the satisfaction ofthe Court.” Rex v. Barker [1762] 97 Eng. Rep.
823, 824 (K.B.). “By virtue of its ‘general superintendancy over all inferior courts,ʼ
Kingʼs Bench had the power to punish judges of lesser courts by attachment for
contempt ʼfor acting unjustly, oppressively, or irregularlyʼ,” Berger, Impeachment at
161, and judges of Kingʼs Bench could also be removed from office for failing to
discharge their duty of supervision. This was the process that every Englishman
claimed as his due in 1791 … and what every American reasonably expected to
receive as the benefit of the bargain we call our Constitution.

According to Wilson, SCOTUS was given two pertinent powers: that of ultimate
appellate review (one which may be impaired, or literally eliminated, by Congress),
U.S. Const. Art. III, § 2, cl. 2; Ex parte McCardle, 74 U.S. 506 (1868), and that of
general superintending control over all inferior courts (one which cannot be taken
away, by definition). U.S. Const. Art. III, § 1; Art. VI, cl. 2.[fn] The Committee on
Detail thought that they had achieved that by creating “one Supreme Court,” but
as Brutus knew well, judges will always resolve ambiguities in their favor.

The bulk of todayʼs judicial shitstorm—talk to Posner about the state of appellate
review in his Circuit—is directly traceable to SCOTUS not doing its job. See
generally, Anastasoff.

At the end of the day, there appears to be no discernible nexus between your
jurisprudential scheme and the largely straightforward prose of Federalist #78. An
effective way of answering the question of whether their Constitution yielded the
Segall SCOTUStitution is to ask: Would the States conceivably have entered into
the Union if the Constitution itself had stated that explicitly? The delegates to the
Grand Convention would have rushed to the exits from Independence Hall, and we
both know it.

Excursus: The Foundersʼ Era

You make much of the fact that there was not a 100% lock-step consensus as to
how to interpret the fledgling COTUS. I would be the first to stipulate that there
were outliers. South Africa went through much the same thing in implementing
their post-apartheid constitution. The big fights were between lawyers attempting
to bend COTUS to their will, and if you chop off the ends of the Bell curve, you will
come to a general consensus.

What we can say to a fair degree of certainty is that the Framersʼ generation had
no appetite for giving judges the kind of discretion you would vest in them. The
Seventh Amendment exists because judges were corrupt, and no sane American
would trust them with power.

CONCLUSION

Tyrants[6] come in more varieties than Baskin-Robbins has flavors. The

ultimate protection a free society has against a tyrant, is a judicial system that
acts as the last barrier to a tyrantʼs will. Therefore, it is immeasurably worse
when the tyrant is the judge himself. … Just as there is no small death, there
is no small tyranny.

Respondent [a judge] acted in tyrannical fashion. His will was the law, and to
the degree that his law conflicted with the actual one, he was above
the law.[7]

But this begs an even larger question, posed by Abraham Lincoln: “No man is
good enough to govern another man, without the otherʼs consent." Abraham
Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854. The
Constitution as written—not as rewritten by the judges—marks the limits of my
consent. If you would not willingly suffer my absolute rule, by what possible right
do you claim absolute rule over me? See e.g.,, John Dickenson and Thomas
Jefferson, Declaration of Causes and Necessity for Taking Up Arms, Continental
Congress (U.S.), Jul. 6, 1775.

Absolute power corrupts absolutely. Tyranny and despotism are inevitable

consequences of the Living Constitution. Using the power they have wrongfully
usurped, our courts have disabled every safeguard the Framers (and the common
law they built on) embedded in their Constitution.

This is no simple crime but rather, "treason to the Constitution," Cohens v. Virginia,
16 U.S. 264, 404 (1821), as none "may set that law at defiance with impunity,"
United States v. Lee, 106 U.S. 196, 220 (1882), and no "judicial officer can war
against the Constitution without violating his undertaking to support it." Cooper v.
Aaron, 358 U.S. 1, 18 (1958). Indeed, federal judicial intransigence is a mortal
threat to the rule of law: “Lawless judicial conduct -- the administration, in
disregard of the law, of a personal brand of justice in which the judge becomes a
law unto himself -- is as threatening to the concept of government under law as is
the loss of judicial independence.” In re Ross, 428 A.2d 858, 861 (Me. 1981). After
all, “[w]ho needs free and honest debate and democratic elections when you can
impose your views through litigation and judicial fiat?” Robert H. Dierker, Jr., The
Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the
Liberal Judicial Assault 4 (Crown Publishing, 2006). Our courts have become
completely illegitimate and our judges, in the sharp prose of Robert Bork, little
more than a “band of outlaws.” Robert H. Bork, Our Judicial Oligarchy, 67 First
Things 21, 24 (Nov. 1996).

As I see it, this is the fatal flaw in your scholarship at present. You have no solution
for the problem of judocracy, and there is no real hope for one to be found in a LC,
as it is the proximate cause of the harm.

That is not to say that originalism canʼt be improved. The Barnetts, Meeses, and
Rappaports are trying to reshape it in their patronsʼ image, which naturally casts
aspersions on the theory. Ironically, work at Georgia State seems to be moving the
ball forward, by providing better definitions for the words used by the Framers. As
has been shown, “good Behaviour” has a precise definition. Viewed through the
lens of agency and Magna Carta [1215], the “Take Care” Clause places significant
limits on the scope of the scope of the Presidentʼs powers (to the Rightʼs chagrin).
Even the iconic “due process of law” seems to have a cognizable definition, as
Gorsuch observed in his Dimaya concurrence. [Barnett and Berwick are working
on a LR article on this, which canʼt be cited yet.]

There is light at the end of that tunnel, and when you finally see it, you will find it
quite attractive.

Criticism of originalism is of great value, as long as it is reasonably fair. Though

some allowances have to be made for the inherent limitations of Twitter, your
characterizations often border on caricature. But in the final analysis, it comes
down to whether we will be ruled by law, or the arbitrary, capricious, and ad hoc ex
post facto ukases of King Judge.

Regards, Ken

ENDNOTES:

[1] Arthur J. Stansbury, Elementary Catechism On the Constitution of the United

States 18-19 (Hilliard, Gray, 1828) (italics in original).
[2]Lyle Denniston, Constitution Check: Should Supreme Court justices have limits
on their time in office?, Constitution Daily, . https://constitutioncenter.org/blog/
constitution-check-should-supreme-court-justices-have-limits-on-their-time-

[3]In a 2013 CNN article, you presented three proposals for improving SCOTUS, of
which one would have required a constitutional amendment to implement. Eric
Segall, Supreme flaws: Three ways to fix the Supreme Court, CNN, Sept. 20, 2013.
No mention of the good behavior tenure which was central to Hamiltonʼs argument
in F#78 was made, and I have yet to find any evidence that you are even familiar
with the concept.

[4]More critically for purposes of this missive, the "abuse of office" condition
seriously curtails a judgeʼs freedom of action. The Framers envisioned judges as
mere interpreters of the law, as opposed to (self-appointed) authors. As Hamilton
wrote, to "avoid an arbitrary discretion in the courts, it is indispensable that
[judges] should be bound by strict rules and precedents, which serve to define
and point out their duty in every particular case before them." F#78. Blackstone
asserted that a judgeʼs duty to follow precedent was derived from the very nature
of the judicial power itself: a judge is "sworn to determine, not according to his
own judgments, but according to the known laws." 1 Blackstone, Commentaries at
69. A century earlier, Coke wrote that "[i]t is the function of a judge not to make,
but to declare the law, according to the golden mete-wand of the law and not by
the crooked cord of discretion." 1 E. Coke, Institutes at 51. As in all but the most
exotic cases, the law has been established, a judge was seen as little more than an
administrator, playing what Professor Llewellyn wryly called "the game of
matching cases." Karl Llewellyn, The Bramble Bush 49 (1960). As such, a judgeʼs
willful refusal to faithfully apply established law in a dispute violated his good
behavior tenure, constituting valid grounds for removal.

[5] Prakash and Smith explain:

“In 1629, Charles I sought to force out Sir John Walter, Chief Baron of the
Exchequer, a judge holding good-behavior tenure. Charles asked Walter
whether he would resign or “submit himself to trial” for misbehavior. Walter
chose the latter course: “I desire to be pardoned for making a surrender of my
patent, for that were to punish myself. I do with confidence stand upon my
innocency and faithful service to his Majesty, and therefore will abide by trial.”
Walter thereby challenged Charles to seek a writ of scire facias seeking his
ouster from the bench. “Scire facias” literally means to “make known.”
Generally speaking, the writ of scire facias commands “the person against
whom it is issued to appear and show cause why some matter of record
should not be annulled or vacated, or why a dormant judgment against that
 person should not be revived.” The Crown used the writ as a means of seeking
a definitive ruling that someone had forfeited his grant of tenure. Fearing that
he could not prove misbehavior, Charles shrank from the challenge of a
trial.” [Prakash, supra at 94]

[6] Blackʼs defines "tyranny" as "[a]rbitrary or despotic government; the severe

and autocratic exercise of sovereign power, either vested constitutionally in one
ruler, or usurped by him by breaking down the division and distribution of
governmental powers," Blackʼs Law Dictionary 1519 (6th ed. 1990), and a "tyrant"
as a sovereign or ruler, legitimate or otherwise, who uses his power unjustly and
arbitrarily, to the oppression of his subjects." Id. This definition was the one
employed by Locke, who wrote that “wherever the power, that is put in any hands
for the government of the people, and the preservation of their properties, is
applied to other ends, and made use of to impoverish, harass, or subdue them to
the arbitrary and irregular commands of those that have it ; there it presently
becomes tyranny, whether those that thus use it are one or many.” Locke, Second
Treatise at § 201 (emphasis added). By that metric, the fact that federal judges
have become tyrants cannot be credibly disputed.

[7] In re Mills (N.Y. Comm. On Judicial Conduct Dec. 4, 2004) (Felder, J.,
dissenting in severity of sanction only; unpaginated), http://www.scjc.state.ny.us/
Determinations/M/mills,_douglas.htm (last visited Apr. 8, 2011; emphasis added)