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A constitutional crisis refers to a situation dealing with the inability to resolve a disagreement involving the governing constitution of a political body. Typically, a dispute or an interpretation or violation of a provision in the constitution between different branches of government is involved. A constitutional crisis may threaten to break down government function.  (US Legal)

How many of us have witnessed a child working one parent against the other?  The child asks mom, she says, “Go ask your dad”. So the kid goes and tells dad, “Mom says it’s okay with her if it’s okay with you”.  That and variations of the event happen all the time. It’s natural for children to try and get all they can and it’s the responsibility of the parents to keep things in check.  We don’t want to be a “helicopter” parent, but we can’t let them run wild either.

Our founders were brilliant, not in the sense they made things up out of thin air but that they were able to see historically what worked, what didn’t and the pitfalls that might be avoided.  They knew there had to be a check on each branch or the result would be tyranny.

First off, I am not a constitutional scholar or a formally trained attorney nor do I have a degree of any sort.  I read, study and research, and I let the facts fall where they may. The US Constitution is the longest living, surviving constitution ever in the history of man.  It was the first to make the people the sovereign and divide limited power among three branches - Legislative, executive and judiciary.


I was taught in school and see it frequently, “Three equal but separate branches”.  I now disagree. Separate, yes. Equal, no.

Not only does this make sense in the larger picture, it is also what was intended.

James Madison, “Father of the Constitution” and author of several of the Federalist Papers stated in Federalist 51, “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.”

Separating the powers was the key, if any branch became too powerful or they assumed powers from one of the other branches, it would destroy the Constitution and the Republic.  Each branch was to be a “check” on the others and the ultimate power was retained by the people and the states as provided in the 9th (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.) and 10th (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.) Amendments.

Madison warns in Federalist 47, “The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”  So, for “the preservation of liberty”, each branch is granted only those specific powers and can do only what it is authorized to do under its particular grant of power.

Can anyone today dispute that the Judiciary is the single most powerful branch?  With a philosophically divided court, we can almost say Justice Kennedy is the most powerful man in the nation as the way he decides often moves the majority.  And it is not just the Supreme court, but the entire federal judiciary. One of the recent instances that spurred this article was the recent decision that President Trump could not “undo” an executive order given by President Obama, one that he himself said he did not have the authority to do!

Historically a presidential executive order is simply a directive of how the executive wants his departments to execute a legislative law that has been passed.  It will cite the law and appropriate section of the law and dictate how he wants it enforced. Something President Obama began was to issue a memo rather than an “EO”.  Technically the memo has no legal authority and the department head could ignore it if it superseded the law...and should. However most to keep their job and keep the boss happy would fall in line.  This gives the president a buffer, he did not violate the law or the constitution himself, the agency and its bureaucrats do.

Is this not a constitutional crisis?  A president issues an order, memo or directive he does not have the power to make.  A subsequent president rescinds that in order to return to the law as it is written, and then a judge steps in and says he cannot.  In the first instance we have a president in violation of the constitution is has sworn to follow and protect and a judge exercising power not delegated to them in Article III of the Constitution.

Consider the various states and communities who have labeled themselves as sanctuaries for illegal immigration.  Article I, Section 8 and the 14th Amendment of the US Constitution give power only to the federal government regarding immigration and citizenship.  In the recent instance of the mayor of Oakland warning illegal immigrants of ICE missions to find criminal illegals, in what world does this make sense?  The Constitution offers special consideration to citizens. If non-citizens, legal or not, get the same benefits then what is the value of citizenship?

Another issue of DACA, the US requires all males to register for selective service on their 18th birthday, whether they are here legally or not.  Failure to register makes one ineligible for certain benefits: federal student loans and grant programs, federal job training under the Workforce Innovation and Opportunity Act (formerly Workforce Investment Act), federal jobs or security clearance as a contractor, U.S. citizenship for immigrants.  Ineligible for US citizenship. Let that one sink in. In fact, an argument can be made that illegal immigrants have MORE rights than citizens.

I need to take a moment and mention the sad state of people in America.  33% can’t name ONE of the three branches of government, only 26% knew all three.  37% could not name ANY of the five rights in the 1st Amendment, only 2% could name all five.  If you don’t know them, how do you know they are in jeopardy?

What of the long train of abuses to the enumerated rights we find in the Bill of Rights?  I wrote recently on how political correctness and absolute moral authority have destroyed free speech and religious freedom.  A free press was under attack by the last administration who even charged and jailed some reporters.  The 2nd amendment has been under attack since the National Firearms Act of 1934 forced registration and taxation on certain firearms and accessories.  Later in 1968 and multiple times since, infringements have occurred in spite of the prohibition on infringements.

The NSA records every keystroke on our phones and computers, every email, text, call...all in spite of the 4th Amendment protections.  The Patriot Act allows for the government to deny due process, and civil asset forfeiture has become a weapon used by federal, state and local authorities.  Any of the “Alphabet Agencies” can fine and seize property with no charges or trial.


The 9th and 10th Amendments have been replaced by a federal government that allows the people and states to have the limited powers it deems appropriate.  What can we do?

Thomas Jefferson was dismayed by events of the early 19th century, especially a judiciary that decided it was the best to decide in spite of the powers enumerated in Article III.  In a letter to Justice William Johnson in 1923, he wrote concerning Justice Marshall’s operating outside the Constitution because he felt there must be a final arbiter.  He wrote:

“But the Chief Justice says ‘there must be an ultimate Arbiter somewhere.’ true, there must: but does that prove it is either party? the ultimate arbiter is the people of the Union, assembled by their deputies in Convention, at the call of Congress, or of two-thirds of the states. let them decide to which they meant to give an authority claimed by two of their organs. and it has been the peculiar wisdom & felicity of our constitution, to have provided this peaceable appeal where that of other nation is at once to force.”

Yes, the framers gave us the power to force back an overreaching federal government in Article V.  There are those who say it is too dangerous. More dangerous than what we have been doing? More dangerous than taking up arms?  As is shown in the previously mentioned poll, most people are not engaged and simply do not know or care what they have lost. But then prior to the revolution, most then did not either.  John Adams indicated that maybe one third supported the revolution, another third were loyal to England and the rest were apathetic. Does that sound familiar?

Trying to use fear to prevent the use of Article V is no different than using fear to infringe on 2nd amendment rights or any of the others.  Rather than listen to fear mongers, listen to some constitutionally savvy people like Mark Levin, Mark Meckler, Michael Ferris, Gov Greg Abbot, Ben Shapiro and many more.  Grassroots is what will break the back of Washington DC. No one person elected to any office can do it. However we the people and our states can and must take control of this runaway train before it flies into the abyss.  Check out The Convention of States Project and join the effort.

Michael Murphy

by Michael Murphy

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