Thursday, September 10, 2015

Charles Records Response To Us About Page Middle School

Mr. Thompson, Thanks for the opportunity to comment on your last story concerning Page Middle School. Here is my response in its entirety to ensure no editorial liberties are taken. Good Morning Mr. Thompson,

Thanks for your message asking me to respond to your article concerning Page Middle School. I would be happy to take you and any other citizen of Gloucester County on a tour of the new building at anytime to dispel many of the false statements you have made in the story which I have included below for reference. It behoves the both of us to represent the truth, for me as an elected official, and you as a journalist.

I will try to respond to each of the items you mention as follows:

1. Fence at Rear of Building - The fencing is 6’ high and has capped tops on each individual newel post and baluster. In the event children are climbing on it, as you suggest, we have another problem which is supervision of our students. I have gotten to know the Staff at all of our schools and I don’t believe any of us have to worry about inadequate supervision. I also question the standards that you may think our children have. Our middle school students do use common sense and are generally well behaved.  (I might agree with you if you have one teacher per student.  Otherwise I just can not go along with the idea that 1 teacher can watch 25 students all at the same time.  Also, if the children, preteens, teenagers, offspring, are in fact as well behaved as you suggest, then I guess we will not see any form of detention this year for any of them?)



2. Railing Heights - The top of the railing astragals at Page Middle School are 42” high, not 3’.  (I corrected that in the last article as we did a measurement based on a photo that is not online.  We figured about 40 inches and will measure it with your tour.  Thank you.)

3. Lockers next to Railings - The Locker is in essence just like the railing, 42” high. If a student climbs on the lockers, or the railings for that matter, I would have the same response at Item #1.  (See 2. above.)



4. Mortified Engineer - I’m unsure of who your engineer is, as you didn’t identify them by name. I would wonder if they are a Licensed Professional Engineer or not. I am a Professional Engineer and Gloucester County Public Schools has employeed dozens of other Professional Engineers, licensed by the Commonwealth of Virginia, to design this project. As a Professional Engineer, our singular duty is to protect the Life, Safety, Health and Welfare of the General Public and it is not a duty I or any other Professional Engineer takes lightly. It is a slap in the face to suggest otherwise.  (You can speak with him at the next meeting between the BoS and School board joint meeting.)



5. Visible Escape Routes - As you mention "A question that has been brought to my attention is how did the school board manage to get a certificate of occupancy especially when there are no visible escape routes and or facilities for handicapped children that might be on the second floor? None." There are visible safety route signs placed strategically throughout the entire building. No less than 250 safety evacuation route signs exist and there are also another 90 exit signs that are lit in the event of a power failure to identify exit locations. I have attached a few pictures that show exactly what you say doesn’t exist. The pictures are of appurtenances to safely get physically disabled people from the 2nd floor to the 1st floor in the event of an emergency.  (Signs are not the concern.  Nice deflection.  How are you going to move handicapped children out if an emergency comes about and especially if they are on the second floor.)






You also go on to state, "If a fire should engulf the front of the building, the children will be locked in an outdoor courtyard that is fully fenced in with locked gates trapping them from being able to get out to safety.” This statement is ridiculously inaccurate. In the event of a fire at the front of the Building, the kids would exit the building into the rear courtyards and simply push the bar on the gate and walk through it. The gates operate just like any other commercial door, push the bar to exit. They aren’t locked from the inside, they are locked to the outside. This functionality also serves another important purpose and that is to keep unwanted guests from entering the building.  (This is good to know.  We did not get that part of the tour.  Have no issues being corrected here as our only interest is that of the public.)



With respect to the Certificate of Occupancy, it is appalling to suggest that anything other than the typical course of Occupancy was completed. To do so is reckless. What exactly do you mean to infer, when the State Fire Marshall, the Gloucester County Building Official, County Inspectors, Licensed and Bonded Contractors, School Board members, School Staff, Engineers, Architects and Private Third Party Inspectors have worked diligently to satisfy the myriad of design and building code requirements for a building of this kind? (That is real simple, please address 5 above and I want to thank you for the list of who is responsible should an accident befall any student due to what many consider a poor design and implementation of those 2nd floor rails.  My concern is the safety of the students and you are a pompous ass to word the above the way you have.  I must remind you that you are the public servant who answers to the people and not us who dare question stupidity.  May I suggest you take a course on the US Constitution through my friend Gary Porter who offers these and are published on this site.)



6. News Coverage - The News Station covered the Open House for one simple reason. We used to have another Middle School, 4 years ago it was destroyed by a tornado and it devastated our community. We have built a new school and it was opened to students for the first time. (That was just ridiculous on your part to even go there.)


7. Open Space in Building - The building design will stand the test of time and will be judged by it. Could it have been designed differently? Sure. Does it have high ceilings and large corridors? Yes. Is it something we should be proud of now that it is complete? Yes. I was a vocal private citizen when this was all being planned but, at the end of the day, the building is done. Adults have argued their points for nearly 4 years but now - the more important part - it is complete and What do the kids think about it? I am unsure if you noticed when you attended the Open House but the kids were amazed by it, The first day of school was flawless and the kids were amazed by it. Today they will walk in and they will be amazed by it. So while you, and many others I’m sure, still want to continue the contentiousness…it is over, water under the bridge. We can now, in the coming months, reflect and learn from the entire process to ensure several things are done differently for the next project, but this project is complete. 

 (Okay, let's really address this shall we?  We fought with the school board and the board of supervisors over many issues here and it was railroaded through regardless of what any of the people thought.  No one in the public were told what the interior designs would look like or that the county had plans for wasting taxpayer money so foolishly.  Proud of the school?  I am seriously thinking of taking my own out of it for safety reasons.  I only need one good reason at this point.)



8. Exercise Room - Childhood Obesity is a serious problem that we need to try to solve, this fitness room hopefully will help to those ends. As your pictures show, most of the equipment is for cardiovascular exercise and will be integrated into our Program of Studies in Middle School which also aligns with the curriculum at our High School.  (What medical doctors were consulted here?  From what I am seeing online through medical experts, you need an experienced weight trainer to design specific programs per person here.  Do you have such a person?  I will check with my own doctor for further information.)





9. Safety in General - 2 story school buildings are not uncommon throughout the Commonwealth of Virginia or the entire Nation. See above.  (And where did that come from?  That was just ......well...... not needed.  But gee, thanks all the same.  I went to several of them.  Another of your pompous ass comments)


With respect to the Waterline at Page Middle School, I offer the following - Mr. Hogge sent the School Board and Board of Supervisors several messages concerning the inadequate cover over the pipe, Mr. Hutchinson’s latest response, which you published, explained exactly what we plan to do to remedy the situation. Mr. Hogge’s response was as follows:

"Outstanding!! This is very good news. Great work!! Thank you Mr. Hutchinson, and please thank everyone involved. - Kenny"



Why don’t you publish that? I’m guessing because it doesn’t “sell” the story.
(I am going to love this.  Here is why Charles.  You are NOT privy to private conversations between Mr Hogge and myself.  So let me clue you in.  Kenny's statement above is in regards to making sure that those responsible for having screwed up the 16 inch pipes being disturbed after being put in the first time is what the comment refers to.  What you are not aware of is that Kenny's personal opinion and I restate "OPINION" is that those pipes can break at anytime causing massive flooding due to the joints being disturbed causing a weakening of those pipes.  Then it might turn out to be a great idea that the mountain of dirt was left so that the students and teachers have some place to escape to.)




As an aside, it appears your blog has been created to promote transparency, yet from my viewpoint, shows your discontent. The title of the two articles alone; “Page Middle School, Serious Life Threatening Concerns to Consider” and “The Waterline at Page Middle School: Disaster Waiting to Happen Here Too?” is typical of media sensationalism to a degree that questions your integrity as a journalist. I’ve attached both articles for your reference. As a member of an elected Board we are no strangers to criticism but I would like to remind you of an old saying: "Everyone is entitled to their own opinion, but not their own facts." This particular story asserts facts that are blatantly false as highlighted above. (You have only corrected one area that I see after we did so.  You have not corrected any facts.  What we do on this site is done to protect the people from potentially corrupt government and inform the people of what is going on in the community.  Can you please explain to me as we publish articles and ask a lot of questions, various members of staff from the county continue to leave?  Wait, don't tell me, it's all a coincidence right?)


I look forward to scheduling an appointment with you to discuss/tour Page Middle School if you have any further questions. In the event you choose to use my response in a sensational way on your blog, consider this our last correspondence. (Gee, what happened to the statement you made about transparency?  I would not call this a sensational use of your comments.  It is only fair that I show both sides of the story.  This statement shows that you were purposely trying to avoid having your ridiculous statements shown the light of day and that you are truly a pompous ass.  Does this mean you will now purposely hide facts from the public?  I guess this will not help your re election campaign?  Also, does this mean the offer for you giving us a tour is now off?  I really want to film that.  And one other area, you forgot to mention is that your invitation for response was in fact meant for the public to see on this site.  That has to hurt.)


Have a great day,
Charles Records
Vice Chairman
Gloucester County School Board

Thank you Charles for taking the time to address our concerns.  I am sorry if we do not agree on various areas.  Our concerns are the students and the parents.  I am not sure of yours however except to limit liability of the school which one could argue is looking out for the public's interest as it is the public that always pays for everything that government does whether it is right or wrong.  

One final area I would like to address is the 2 story open floor plan and how this is a huge waste of taxpayer money as it raises the heating and cooling costs exponentially.  With the federal and state government putting out a lot of pressure for going green to save energy costs and usage, how does this ridiculous design fit within a green environment?  Or is the government lying to us?  That would seem a fair question.  But I am sure someone has a spin for this to make it sound as though this design is in fact green.






That is a very large area to have to heat and cool.  That is also some very serious equipment outside to do such a job.  Gloucester County School Board.  Now you know.

Wednesday, September 9, 2015

Page Middle School Now Open With More Issues


It's an interesting building that there is no question about.  Some issues experienced yesterday with the new school include problems with the phone lines as well as problems with the Internet.  Not a big deal especially being a new school and not having much time to work out all the bugs.

  One area that begs to question is why isn't the cafeteria not yet functional?  And why did the school board order pizza's for the school children instead of having the food made at other area schools and bringing it into this school?  It would seem logical to have gone that route as opposed to ordering pizza.  What an order some business received over this.


We did a bit more checking and the rail on the second floor is probably 40 inches high as it should be.  A number of readers think that nothing will ever get thrown over that rail for any reason and that to think so otherwise is foolish.  It is their belief that every child is raised by parents who are very diligent in teaching their children between right and wrong.  I hope they are correct but a walk through any store suggests otherwise.  To think that every child, preteen, and teenager has been brought up to the highest standards of society is rather foolish.

  I have no wish for seeing any form of even mild mischief to take place yet to think it will not happen and that teachers will surely prevent such at every moment of everyday again is wishful thinking at best.  It is not only my opinion but also the opinion of others that designs throughout this structure are considered potentially dangerous.



How many teachers are out in this hall all day to make sure there are no issues and how is that cost effective when it comes to staffing?


Now a question about open design.  People are complaining that I would even complain about the waste of space this open design creates.  I am not the only one saying this.  This is also coming from an engineer as well as people that have been involved in constructing schools.  It's a heating and cooling nightmare for one.  Those claiming that open design is not an issue have not had to deal with the problems of heating and cooling such a structure.


So the above picture that shows two stories of open window space is needed for educational purposes?  I have no issues with the windows for each floor being the way they are, but how many classes could have been built in here that are now wasted?




Now the classrooms are nice looking.  What I have to wonder about is the windows as large as they are affecting the learning process.  The reason for the question is that anyone walking through the hall could very well be a distraction to the class or some in a class.

  The reason you have not seen these types of designs in schools in the past is because designers knew and understood these issues.  Today though it has become very unfashionable to ever question those in charge.  We should just accept what those in charge do.  If there is an issue then you blame the parents for not teaching their children, kids, preteens, teenagers, or whatever anyone wants to call their offspring these days, for not teaching them how to maintain the highest standards of society.


The lunchroom or cafeteria from another angle.  Open floor plan.  



The cafeteria food serving section is nice looking.  Hope it's up and running soon.  If you are just looking at the aesthetics of the overall design it is nice looking.  Modern, simple, and clean.  If you are looking at it from a liability standpoint, it is fraught with a host of "potential" issues.  Potential is the key word here.  Most people are not looking at the potential issues.  Those that are have been fast to discredit our initial post about this school and it's overall design because of the liability issues being faced.  The rail height on the second floor as seen in the above picture were brought up during construction but were blown off.  If something heavy gets thrown off that area or falls by some weird accident anyone below could be seriously hurt.  This is why schools in the past were not designed like this.  

  



     A number of people do not consider the fencing around the back of the building to be an issue.  Will the children, preteens, teenagers, or your offspring not try and climb these fences?  The design is against climbing them.  If you are foolish enough to try and climb over one you will probably get hurt.  It is designed to keep people out that have no business being there.  The fences meet construction standards and are upper end fences.  No question.  But again you have to be foolish enough to think that every child, preteen, teenager, offspring, have all been brought up in households where the highest standards of society have been instilled in them and that they all follow those standards to the hilt at all times with no question.

     We have invited Charles Records to write a letter to dispel the posts here.  He has invited members of the public to tour the school so that he could dispel what has been posted.  We await his reply and will bring that to you if he does respond.

Tuesday, September 8, 2015

The Waterline At Page Middle School: Disaster Waiting To Happen Here Too?

The new 16” waterline extending along T.C. Walker Road and installed as part of constructing Page Middle School, does not seem to have been installed in the proper location. Apparently when VDOT required changes to design drawings for improvements of the T.C. Walker Road and Route 17 intersection, those changes were not incorporated into the civil site and utility drawings. This failure has resulted in the 16” waterline now being located in the very bottom of the VDOT drainage ditch.
As the story goes; the contractor installed the waterline and then began constructing the drainage ditch. As they constructed the ditch they discovered they removed most of the dirt above the waterline. Instead of removing the waterline and reinstalling it in the correct location when the error was discovered, they excavated along side of and under the waterline, removing the stone bedding and dirt from under the pipe while it was still put together. 

Once the stone and dirt are removed from under the waterline it will sag downward. The more it is forced to sag, the more each connection joint in the line separates. This is a dangerous and unacceptable method of lowering a waterline that operates under pressure. The reliability of the gaskets used to seal each joint and the chances of every joint being completely home (fitted all the way together) become compromised when manipulated in such a manner. 

The required stone bedding under the pipe is also compromised and often completely ignored when utilizing such method. Another reason to avoid such method of adjusting waterline depth is it rarely results in achieving the required depth. A significant section of the new waterline does not come close to having the required amount of cover. On August 20, 2015 I used a four foot long probe rod to determine the amount of cover over the waterline and discovered areas with less than two feet of cover. The minimum cover requirement is generally three feet. The main reasons for minimum cover requirements are to protect the waterline from freezing and to limit pipe movement, thus preventing the pipe from blowing apart under pressure. The close proximity of the waterline to the water tower that supplies it, the fact that the pipe dead ends so close to the incorrectly covered pipe and that flow through the pipe will basically cease daily during each day’s coldest periods, during weekends and during other times the school is closed during winter months, are all very good reasons for not accepting the waterline in it’s current condition. The waterline in its current condition will also increase the chance of VDOT damaging it during ditch maintenance.

 If VDOT should damage the line, they will be exempt from responsibility as prescribed by the Code of Virginia and all liability will fall on Gloucester taxpayers. If, for any reason, the waterline blows apart so close to the water tower supplying it, the results would be catastrophic; most likely resulting in a significant portion of T.C. Walker Road and the entrance to Page being washed away before the water could be turned off. Page would be closed until water could be restored and the road and entrance repaired. In this scenario Gloucester taxpayers will also assume liability.
I know everyone wants the new school opened as currently scheduled, but this serious issue should not be ignored or dismissed for the sake of opening on time. It should also not be dismissed to save a buck, no matter whose buck it is.
Respectfully and just my 2 cents worth,
Kenneth E. Hogge, Sr.



The two above pictures shows where we were out measuring where and how deep the waterline is buried by Page Middle School.  

Mr. Hogge,


Schools and the Contractor are very well aware of the waterline issue and have committed to making the needed repairs during the Winter Break in December. Not only has the Contractor’s President issued a guarantee to the County for the repair, but we also continue to hold a performance bond on the Contractor to ensure the repairs are made to satisfaction. Public Utilities is aware of the Contractors commitment and finds the repair strategy to be acceptable.

Thank you for your support. Have a nice day.





John E.Hutchinson


Constitutional Corner – “Just who do we think we are?”


By:  Gary Porter


“Just who do we think we are?” stated Chief Justice John Roberts,[1] in what, I predict, will no doubt become one of the most famous statements ever made in a Supreme Court dissent, barely edging out “[The Constitution] had nothing to do with [today’s decision.]”

“Petitioners make strong arguments rooted in social policy and considerations of fairness,” (emphasis added) he continues. Social policy? I thought Supreme Court decisions were to be rooted in the law? “The majority’s decision is an act of will, not legal judg­ment,” Roberts reminds us.

“The Celebrated Montesquieu” said: “There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.”

Social justice, the great utopic goal of every Progressive, not jurisprudence, was the goal of the five Justices who formed the majority opinion in Obergefel vs Hodgesl.

It was an act of judicial activism.

What do we mean by judicial activism? The Heritage Foundation defines it this way: “Judicial activism occurs when judges write subjective policy preferences into the law rather than apply the law impartially according to its original meaning.”

There is no better example than Obergefell.

Prior to Obergefell, the most famous statement by a Supreme Court Justice which encapsulated the idea behind judicial activism occurred when Associate Justice Thurgood Marshall described his judicial philosophy as: “You do what you think is right and let the law catch up.” That’s simply an amazing statement for a jurist: Ignore the law and rule instead based on your “feelings” of what is right. It’s all about feelings to a Progressive; in fact the law is often seen as an obstacle to PROGRESS. So, if you can get a court to declare its sense of justice as “the law,” instead of constraining itself to proper interpretation of the law, all the better.

But judicial activism is often in the eye of the beholder. The perfect example is Citizens United vs. Federal Election Commission. The Right saw the decision as an affirmation of unrestrained free speech, the Left saw the decision as the perfect example of judicial activism since it “declared corporations were people,” as I heard more than one liberal insist.

Judicial activism is a natural outgrowth of the doctrine of legal positivism, which replaced natural law theory in the late 1800s. Legal Positivism holds that the only relevant law is what man creates. Natural law, if it exists at all, is irrelevant; and revealed law (i.e. as found in the Bible) has no place in a mature society. Since man is constantly evolving (so goes the theory) the law must continually evolve as well. And who guides the evolution of the law? Why, the judges, of course.

In another candid moment, Associate Justice Ruth Bader Ginsburg wondered aloud whether the court went “too far, too fast” in its 1973 Roe v. Wade decision; yet another admission that Progressives see the Court as the “seeing eye dog” of a society groping culturally in the dark. So, perhaps the court went “a smidgen” too far in 1973; so what? Fifty million undelivered babies might have a different opinion.

Compare these previous progressive sentiments with that of Associate Justice Joseph Story, who wrote in his 1833 work: “Commentaries on the Constitution,” “The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day.” Is that not what we just saw happen in Obergefell?

Thomas Jefferson saw the danger during his time, writing to William Jarvis in 1820: “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

Besides Obergefell, are there other examples of judicial activism? Lists, long ones, are not hard to find. You’ll find us discussing these cases and more tomorrow morning on “We The People, The Constitution Matters” (7am EDT, www.1180wfyl.com).

The Heritage Foundation lists these cases (and others) as activist:

Griswold v. Connecticut (1965), in which Justice William O. Douglas, in one of the most famous of judicial DIY projects, constructed a right to privacy from bits and pieces of vague privacy inferences salvaged from “emanations from penumbras” of the Constitution.

Roe v. Wade (1973), building on the “right” of privacy constructed in Griswold, the Court then further defined that “right” to encompass the murder of unborn babies, with few restrictions, striking down numerous state laws.

Lawrence v. Texas (2003), building once again on Griswold, the Court decided that the by now very useful “right” of privacy should be extended even further to sodomy — that states would no longer be allowed to decide whether certain sexual acts were immoral and restrictable. Another dose of “social policy.”

Kelo v. City of New London, Conn (2005). In Kelo, the Court took the plain language of the 5th Amendment and contorted it beyond recognition. The Amendment’s final clause requires that private property taken under eminent domain be only taken “for public use.” Historically, this has meant taking property to build roads and stadiums, install utility lines and other public features which benefit all a locale’s citizens. Not so, said the Court. The City of New London was allowed to take private property and give it to a private corporation (Pfizer Corporation) for the purpose of their building a new private manufacturing plant (reasoning that this would increase the city’s tax base, boost revenues, and thus benefit, well, whoever the city spent the money on). Ironically, Pfizer pulled out of the deal after all the necessary homes were razed and the ground sits vacant to this day. The finding in Kelo encouraged more than one state to pass legislation or Constitutional amendments protecting private property from just such predations exhibited in Connecticut.

Perhaps the “poster child” of terrible Commerce Clause cases, but also a perfect example of judicial activism since it contorted the clause’s clear wording, is Wickard v. Filburn. Old Farmer Filburn wanted nothing more than to grow some wheat for his own animals’ consumption; but doing so would exceed his planting allotment. “ If we let you do that,” said the Court (in effect), “you’ll not have to purchase that wheat on the open market, which will affect the interstate market in wheat, which Congress has complete control of under the Commerce Clause.” See the iron-clad legal reasoning? Neither do most people. Wickard was the final nail in the Commerce Clause coffin, and essentially gave Congress (and by extension, the Executive) the power to regulate nearly any business activity. Wickard v. Filburn is the “butterfly effect” applied to the Commerce Clause.

There are many, many more examples and you can study them on several websites. Let’s turn our attention to remedies. What can “We The People” do in the face of judicial activism? We’ll examine six avenues for redress:
Congressional or state legislative or amendment action. We today have several Constitutional Amendments (11th, 13th, 16th, 26th) due to Supreme Court decisions. In some cases the precipitating action was a SCOTUS decision declaring a piece of legislation passed by the Congress to be unconstitutional (16th and 26th Amendments), and sometimes it was merely the implications of a decision. InChisholm v. Georgia the Court declared that citizens could sue sovereign states. The Congress replied: “We don’t think that should be so,” and they dutifully passed and got ratified an Amendment putting their view into effect. The 13th Amendment was at least in part the result of the Court’s horrendous Dred Scott decision. In the wake of the Dred Scott decision, many northern state legislatures scrambled to pass legislation nullifying or muting the effects of the decision.


Jurisdiction stripping: Article 3 Section 2 provides Congress the power to remove any subject area from the Court’s jurisdiction. This was most famously proved in Ex Parte McCardle when the Supreme Court shut down a case “in mid-stream,” i.e., after oral arguments had been heard but before an opinion had been published. This power has been used often by the Congress but is still not widely understood in that body. In 1996, Congress successfully stripped the federal courts of jurisdiction to review certain INS decisions. Understand also: for Congress to exert this power, a piece of legislation so stating must be passed and signed by the President, which adds another layer of partisanship to the process. Jurisdiction stripping must also be used “judiciously.” If the Congress tomorrow removed the topic of abortion, for instance, from the Court’s jurisdiction, some say that would prevent Roe V. Wade from ever being reversed, or even reviewed. You should converse with your Senators and Representative to ensure they understand jurisdiction stripping.

Impeachment or Criminal prosecution of judges: To date, sixteen federal officials have been successfully impeached by the House of Representatives. These include two presidents, a cabinet member, a senator, a Justice of the Supreme Court, and thirteen federal judges. Of those, the Senate has convicted and removed seven, all of them judges. District Court Judge John Pickering of the District of New Hampshire was the first impeached official actually convicted and removed from office. He was found guilty of drunkenness and unlawful rulings. Supreme Court Justice Samuel Chase is the only U.S. Supreme Court Justice to have been impeached (he was acquitted, much to Jefferson’s disappointment). In 1981, Alcee Hastings, sitting as a U.S. District Judge for the Southern District of Florida, was impeached and removed from the bench (convicted of accepting a $150,000 bribe in exchange for a defendant’s lenient sentence). Once off the bench, he ran for office and the good citizens of Florida’s 23rd District amazingly sent him to Congress as their Representative!
Presidential refusal to enforce: In a statement that is probably apocryphal, President Andrew Jackson is claimed to have said: “John Marshall has made his decision; now let him enforce it!” The decision, Worcester v. Georgia (1832) required nothing of Jackson, so it is unlikely he said this, but it points to another remedy. The Congress or the President can decide not to give effect to a Supreme Court decision. This of course would create a Constitutional “crisis” and place things in a state of tension. But as Hamilton points out in Federalist 78: the reason he calls the Judiciary the “least dangerous branch” (boy, was he wrong!) is because“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 comports with Jefferson’s opinion that “The Constitution… meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”[2] In other words: the Congress and President are to act as a check on an activist Judiciary.

Presidential pardon: The President’s pardon power, found in Article 2, Section 2, Clause 1, gives the President the ability to demonstrate that he believes a court acted improperly. Immediately upon taking office in 1801, President Thomas Jefferson pardoned everyone jailed under the onerous Sedition Act of 1798 (which had given rise to the doctrine of nullification) and even went so far as to return their fines.
Nullification: We discussed this last week on “The Constitution Matters” (you can download the podcast from WFYL’s website). The states and/or the people are free to (and should, according to the venerable Sir William Blackstone) ignore a judicial ruling as null and void if it contravenes natural or revealed law (like the definition of marriage?). A final remedy would be jury nullification, which was used to great effect in response to the Fugitive Slave Act of 1850, and in the aftermath of prohibition (Volstead Act). In both cases juries (Northern juries, obviously, in the case of the Fugitive Slave Act) routinely refused to render guilty verdicts, even in the face of overwhelming evidence of guilt. This action rendered the acts essentially null and void in those jurisdictions.



There are probably other remedies that can be sought in the face of judicial activism. But in the end, what gives a judicial opinion legitimacy (for that is simply what it is: an opinion) is the reaction of the people. A Supreme Court opinion is not the law of the land unless we give it that status.

The Constitution does not begin with “We the Judges,” “We the Congress” or with “ I the President.” As I tell all my classes, it is the peoples’ document (with all due respect to those who hold it to be a compact of the states) and “We the People” need to take individual ownership of it. We need to actively work with our representatives in Congress to “put right” terrible Court decisions, and there are many ways to do so. There have been many terrible Supreme Court decisions over the years and Obergefell, I fear, is not the last of them.

Join us tomorrow morning, 7am, on WFYL (Listen Live at www.1180wfyl.com) to hear your trusty commentators, joined by special guest, Dr. Herb Titus, Founding Dean of the Regent University Law School, as we discuss: “Judicial Activism.”

“Constitutional Corner” is a project of the Constitution Leadership Initiative, Inc. To unsubscribe from future mailings by Constitution Leadership Initiative, click here
[1] Obergefell vs. Hodges, 576 U. S. ____ (2015)

[2] Letter to Abigail Adams, 1804.