Just What Did We Declare?

This July 4 we will celebrate the 241st anniversary of the signing of the Declaration of Independence.  Parades and concerts will be held, gatherings of family and friends for backyard cookouts will take place, and most citizens will enjoy a day off from work.  However, if you have ever watched any of these “man on the street” interviews where individuals are asked what we celebrate on this day, far, far too many haven’t a clue.  So as we enjoy this day, let’s reflect upon just what our forefathers put their lives, fortunes and sacred honor on the line to declare.

Some, but not enough, of these queried citizens about this day may be able to quote a phrase or two from the Declaration but there is a greater underlying principle to the Declaration than “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

You may wonder what greater principle can there be than the right to equality, life, liberty and happiness?  The answer can be found in the opening sentence of the Declaration and repeated a little further down in the second paragraph.

In that first sentence Jefferson lays out the principle that Nature’s Laws and Nature’s God entitle people to be self-determining when it comes to how they will be governed.  Listen to how he begins:

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them,…”

Jefferson here claims that people have the right “to assume the powers of the earth” which entitles them to choose with whom they wish to band together into society.  He then proceeds in the second paragraph to expand upon this right by stating that the assuming of this power means they also have the right to determine how the society they formed when banded together is to be governed:

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

If a people are not free to choose how they wish to be governed then they live in a state of tyranny and oppression.  As the song recorded by the Rascals in 1968 put it,

All the world over, so easy to see

People everywhere just wanna be free

Listen, please listen, that’s the way it should be

There’s peace in the valley, people got to be free

That same sentiment is inscribed on the base of our Statute of Liberty:  “Give me your tired, your poor, your huddled masses yearning to breathe free.”

Without self-determination when it comes to governance, there can be no life to speak of for it is life without liberty nor happiness.  Yet as far too many in our country today go about the frivolity of fireworks, concerts, et al, and are oblivious to the fact that we stand at the precipice of losing all that our forefathers declared are our inalienable rights that day 241 years ago.

It is time that we all re-learn the true meaning of this day and commit ourselves to the principles contained within that Declaration.  Five years ago I woke up in the middle of the night and penned the following – a modern update to Jefferson’s Declaration.  I hope you find it worthwhile and will share it with others that we might, like our forefathers, dedicate ourselves to the future freedom of our posterity:

Declaration of Reclamation

-June 30, 2017

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To Declare or Not to Declare, that Is the Question – Part VIII

In last week’s essay (To Declare or Not to Declare, that Is the Question – Part VII) I alluded to the fact that the United States has forgotten how to wage war.  We have forgotten what the nature of war is and the purpose of it.

The purpose of war is not to facilitate “nation-building”, nor is it to “spread democracy.”  Unless a nation is a bent on conquest and subjugation, free nations engage in war only as a defensive matter of self-preservation.  When it comes to self-preservation war is a matter of kill or be killed, and all options should be on the table as they were in WWII.  Today we try to wage “polite war”, but no such thing exists.  We are too concerned about political correctness in how we conduct military actions.  War is horrible and should be resorted to only as a last measure due to the suffering it causes on both sides of the conflict.

My take on the approach to waging war is what I term the “Mr. Miyagi Philosophy of War.”  In the movie “Karate Kid III”, the wise Mr. Miyagi has taken a young teenage girl named Julie under his tutelage.  One evening while walking home alone she is accosted by a group of boys in a judo club and harassed.  Off to the side you hear this soft, quiet voice say to them, “Leave girl alone.”  They look, and begin laughing at and taunting this little old man telling them to back off.  If you’ve seen the movie, you know that that little old man defeats all of the boys who run off with their “tails between their legs.”  Julie gets all excited about how Mr. Miyagi “kicked butt”, and here is the wisdom in their conversation:

Juile: That was great, Mr. Miyagi.

Mr. Miyagi: Not great. Miyagi always look for way not to fight. Miyagi hate fighting, was most unfortunate.

Julie:  Unfortunate? Come on! Aren’t you glad you kicked some guy’s butt?

Mr. Miyagi: Not want to kick anything. Was most unfortunate their butts attached to small brain.

Julie: Mr. Miyagi, come on admit it. We kicked some butt.

Mr. Miyagi: Julie-san, fighting not good. But if must fight… win.

As related to our subject matter, to paraphrase that last line, “War is not good.  But if must fight…win!”

Consider what we did in WWII.  On February 13, 1945, the allies fire-bombed the city of Dresden, Germany, killing an estimated 135,000 civilians (or more) in one night.  On March 9, 1945, the US fire-bombed Toyoko, Japan and killed at least 130,000 civilians.  Then of course there were the two nuclear attacks on Hiroshima and Nagasaki.  The purpose was to try and force those nations to sue for peace and bring an end to the conflict and to preserve American and allied lives.

Today, in our war against those seeking to do us harm, in a formal declaration of war Congress should make it plain that as horrible as it may seem, we will unleash all of our might against those enemies and anyone who aligns themselves with them, shelters them, or remains in their vicinity may very well suffer the same fate as them.

General William Tecumseh Sherman understood how horrible war was, but it didn’t stop him from being ruthless in prosecuting it.  I leave you with some of his words of wisdom about war and how to wage it:

“War is the remedy that our enemies have chosen, and I say let us give them all they want.”

“I would make this war as severe as possible, and show no symptoms of tiring till the South begs for mercy.”

“My aim, then, was to whip the rebels, to humble their pride, to follow them to their inmost recesses, and make them fear and dread us.”

“War is cruelty. There is no use trying to reform it. The crueler it is, the sooner it will be over.”

“War is at its best barbarism.”

“If the people raise a great howl against my barbarity and cruelty, I will answer that war is war, and not popularity seeking.”

 “There’s many a boy here today who looks on war as all glory but it is all hell.”

 And finally,

“Every attempt to make war easy and safe will result in humiliation and disaster.”

 Would that more of our leaders had the attitude of General Sherman; then maybe there would be fewer American servicemen and women losing their lives and we as a people could dwell in peace and safety.  As Mr. Miyagi said, “if must fight…win!”

-June 23, 2017

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To Declare or Not to Declare, that Is the Question – Part VII

We now understand that the power to declare war (see To Declare or Not to Declare, that is the Question – Part VI) can mean either to formally recognize that we are in a state of war after an adversary has attacked the US, or to formally announce that we intend to commence hostilities against an adversary.  But against whom do we declare war?  Just who is an “adversary” against whom war can be declared?

The meaning of what it is to be “at war” has been muddied up over the past few decades.  We hear such phrases as “War on Poverty”, “War on Drugs”, the “Cold War”, and most recently, the “War on Terror.”  I think that the reason we have not been as successful in recent military conflicts in which we’ve engaged is because we have lost sight of what war is all about and what it truly is.

The object of a declaration of war, if it is to be understood and carried through to victory, must be specific.  In WWII, we declared war against Nazi Germany, Fascist Italy and the Empire of Japan.  It was easy for the citizens at that time to focus on and crystalize exactly who we were at war with and what it was going to take to win and return to a state of peace.  Yet the examples I gave above are nebulous to say the least.  Is it any wonder that we don’t seem to be making much headway?  We still have poverty after trillions of government spending/waste.  The drug epidemic is spreading like a prairie fire, we’re still at odds with Russia despite the dissolution of the old Soviet Union, and the so-called “War on Terror”?   Well……

I find all of these “wars” to be misnomers; an inaccurate use of the term and concept of “war.”  Consider the “War on Terror.”  Just who is the enemy?  Some might say it’s ISIS, Al Qaida, the Muslim Brotherhood, etc, but that is not the enemy we’ve tied to the use of the word “war.”  Terror is a means to an end, and therefore cannot be an enemy against which you declare war.  Winston Churchill did not declare war against Blitzkrieg when Poland was invaded.  No, he asked the British Parliament to declare war against Nazi Germany, the adversary who was utilizing the method of Blitzkrieg to attack a neighboring country.  So it must be with us today in how we approach this Muslim menace today.

President Trump should go to the Congress and ask for a declaration of war against the organizations who are perpetrating terror around the globe.   The declaration should state that we have been attacked by these adversaries over the years (the Marine Barracks in Lebanon, the USS Cole, the WTC buildings to name a few) and that we will take whatever means necessary to eradicate them.  By making this formal declaration it should also put other nations on notice that should they harbor, aide or abet these organizations they will also be considered to be adversarial to our safety and will be subject to incurring whatever damage and suffering might result when we attack these groups that are within their territory.  In effect, we are declaring to be at war with them in an indirect manner.  This way they are on notice and if they fail to take action themselves to root out those organizations, then the consequences will be on them, not on the US.

To fail to realize exactly who we are at war with and formally stating such will keep us in the condition we have been for the past almost three decades, namely mired down in politically correct battles with no clear victory or peace in sight.  Next week, a look at what war really is and how it should be waged.

-June 16, 2017

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To Declare or Not to Declare, that Is the Question – Part VI

Having examined (in the previous five installments of this series of essays) the background and the constitutional positing of the power to declare war in the hands of the legislature, we can now look at answering the question “What did the founders mean by the phrase ‘declare war’?”

There are two basic schools of thought on its meaning. One is to declare war is simply a formal announcement to the world that the US is in a state of war with xyz country(ies) – that is the war is already in existence. This would be the case with FDR’s call for Congress to declare war on the Empire of Japan after its attack on Pearl Harbor. The other interpretation is that Congress has the power to initiate war – to put a country(ies) on notice that the US considers itself to be on a war footing with them and will commence hostilities against them. The follow up question is then, which is it? Interpretation one, or two, or perhaps both?

In trying to define something it is many times helpful to look and see if the same concept has been expressed in other places using different words or phrases. If we take this approach it will help us to understand the founders’ frame of mind and in grasping what they intended when they wrote in the Constitution that “Congress shall have the power to…declare war.”

In the Articles of Confederation, written by many of the same men who later wrote the Constitution, three different phrases were used. In Article VI, the Congress was given the power to “engage in any war,” and to make “a declaration of war.” In Article IX it stated that congress “shall have the sole and exclusive right and power of determining on peace and war.”

In the original draft of the Constitution, in listing the enumerated powers of the legislature in Article VII, it had the simple phrase “to make war.” Going back to Madison’s essay of August 24, 1793, writing under the pseudonym “Helvidius” (see part III of this series, To Declare or Not to Declare – Part III), Madison used the terms “make war” and “declare war” interchangeably.

Putting this all together I think we can draw these conclusions: to “engage” in war doesn’t really tell us whether the engagement is preemptive or reactive. The same can be said of the idea of “determining” war. Both of those terms are rather ambiguous in clarifying the idea of “declaring” war. This leaves us with the term “make” war as an alternative to “declaring” war.

In that same part of Madison’s essay I referred to above, he related the act of making or declaring war to be the same as congress making law. So we ask, “What is implied by the phrase ‘making law’?” This simplifies the matter significantly as it is easily understood that to make something is to create that which before did not exist. There is no law until Congress legislates, creates or makes the law. Hence, the US cannot be in a state of war until Congress “makes” it so.

Thus, I believe that we can safely conclude that declaring war can be a determination that a state of war exists (such as after Pearl Harbor) and that Congress formally declares to the other nations such to be the case and authorizes the President to use our military forces to “engage” in armed conflict. Or it can also mean that Congress can declare war by making war, i.e., initiate hostilities with another nation where previously no open hostilities existed.

Hence, to “declare war” can be reactionary, i.e. a defensive statement after being attacked, or it can be an authorization to commence an act of war against another nation. Either way, however, as I’ve shown in this series of essays, that power rests solely with Congress and cannot, constitutionally, be consigned to the determination of one man/woman occupying the office of the President.

Next week, in what I expect will be the final installment in this series, we will examine who it is that Congress can declare war against and what should be done regarding this “war on terror.”

-June 9, 2017

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To Declare or Not to Declare, that Is the Question – Part V

Going to war is a serious business – deadly serious, which is why our founders in their great wisdom posited the authority to commence war in the hands of those who represented the citizens who would have to finance, fight and die in it.  As I mentioned in closing last week (http://frankkuchar.com/348-2/), going to war not only requires the legislature to declare it, but also the concurrence of the President as well.  This not only creates a separation of powers, but a second backstop against a headlong rush into an unwise war.

We have had many wars in our history of, which only five were congressionally-declared wars (six if you separate out our declaration of war against Romania in 1942 from the declaration in 1941 against the Axis powers with which Romania was allied), and only one of them was an actual declaration to go to war – the other four were in response to our having been attacked.  Until recently, all of these military engagements were viewed as “war”; now, however, they have been also referred to as “police action” or simply “conflict.”  However, to those who fought, bled and died in them, they were wars.  Two such wars that were called such were the Korean and Vietnam Wars.

In the aftermath of our disastrous war in Vietnam (which was an undeclared war), Congress passed the War Powers Resolution of 1973 in an effort to restrict the President’s ability to commit US forces into battle without first getting congressional approval.  It is an unnecessary, useless and dangerous act and cuts across the grain of the intent of the Constitution to vest war-making powers in the hands of the legislature.

The resolution gives “statutory authorization” for the President to commit US forces into a military engagement or if there is “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”  It requires him to notify Congress within 48 hours of his action and that those forces he has committed may only remain in the battlefield for 60 days (plus an additional 30 days for withdrawal) without securing additional congressional approval or formal declaration of war.

This resolution is foolish and dangerous on two grounds.  First, it cuts against the intent of the Constitution by allowing this broad, nebulous “statutory authorization” to in fact decide to go to war.  To declare war means there must be an enemy against whom this declaration is made – there cannot, constitutionally, be this vague, blanket “statutory authorization” for the President to use our military when and how he sees fit!  Second, once the President decides, without a formal congressional declaration of war, to let our military loose in some part of the world, his action could turn into a full-blown conflagration, and then Congress would have to declare a formal state of war, even if it didn’t want to.  In effect, this strips away the separation of powers our founders intended in this gravest of acts.

Furthermore, it is unnecessary in that the President fulfills the role of the Commander-in-Chief, meaning he calls the shots with the military when we are at war.  He cannot, constitutionally, unless we are attacked and immediate response is required for our defense, go off on his own and launch us into a military conflict (which, remember, for those fighting it is a war).  Since he is already limited by the Constitution in Article I, Section 8, Clause 11, there is no need for this resolution.

Those who are elected to the office of the Presidency need to be reminded of their limitations and Congress needs to step up and take back their authority as our founders intended.  If this was to occur, then perhaps much bloodshed and needless suffering and expense could be prevented.

-June 2, 2017

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To Declare or Not to Declare, that Is the Question – Part IV

In the previous installment in this series (To Declare or Not to Declare, that Is the Question – Part III), I established the fact that, based upon James Madison’s arguments in an essay dated August 24, 1793 under the pseudonym “Helvidius”, the constitutional authority to “declare war” was reserved to the legislature as this action was tantamount to the passage of a law.  Consequently, the president is not authorized to “declare war” on his own any more than he has the authority to enact any other piece of legislation.  His role, Madison argued, is strictly that of execution, and unless he is given something to execute (i.e., law), he has no authority.

This being the case, how then does Congress “declare war”?  The Constitution is silent on the procedure, but if we proceed from Madison’s supposition that declaring war is a legislative act, then we can safely assume it would follow the course of any other passage of legislation.

As I closed last week’s essay, I pointed out that to declare war requires the action of both houses of Congress, just like the passage of any other law.  However, unlike the requirement that all bills relating to raising revenue (i.e., taxes) must originate with the House of Representatives (Article I, Section 7, Clause 1), no mention is given concerning in which chamber such a declaration must originate.  This being so, we can assume that it can originate in either chamber.  An argument could be made, again extrapolating from Madison’s argument, that since the conclusion of a war via treaty requires action on the part of the Senate, meaning that war cannot be ended without Senate approval, we could say that a bill to commence war would then originate in the Senate, but I believe that might be stretching a little too far.  After all, the independence of the States might be at risk in the going to war, but it will be the citizens who will bleed and die, so an equally strong argument could be made that it should originate in the House.  However, the safest conclusion is that a bill to declare war can originate in either chamber of Congress.

Once a bill to declare war is passed according to the rules set forth in each chamber, to be official it would then, like any other act of legislation, require the signature of the President.  Once signed, then – and only then – would he, as the Commander-in-Chief, have the authority to lead the military forces of the country into war.

But, what if the President said that in his opinion, Congress was full of a bunch of hot-headed war hawks, and that to go to war would be foolish and dangerous and he refused to sign the bill or follow its directives?  Could he do this?  Would that become an act of treason and be an impeachable offense?  The answers are yes he could, and no it would not be an impeachable offense.  If the act of declaring war is just like any other piece of legislation, then he can veto it like any other bill, which would then require a 2/3 vote of both the House and the Senate to become law.  Once his veto was overridden, then yes, he would be obligated to follow through or be in violation of his oath of office.

Herein we see the wisdom of our founders in their ingenious insertion of checks-and-balances in our system of government.  One individual, the President, cannot put the country at risk by declaring war on his own, but neither can a foolish bunch of Senators and Representatives unless the one who will be in command of the battles agrees.  More on this next week.

-May 26, 2017

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To Declare or Not to Declare, that Is the Question – Part III

As I set forth last week (To Declare or Not to Declare, that Is the Question – Part II), free societies should only go to war when they have been attacked or there is the threat that their lives, liberties and property are in danger of being attacked and destroyed.  The follow up question for us then becomes, “Why is the power to ‘declare’ war vested by our Constitution in the Congress and not left up to the President as he is the ‘Commander-in-Chief’ of our military?”

To answer this question we need to return to the Constitutional Convention of 1787 and understand the mindset of those who were framing our Constitution.  If you read Jefferson’s Declaration of Independence you will see where several of the charges levied against King George III was his absolute control of Britain’s military and his abuse of that power.  One of those charges was the fact the army was not under civil control.  Repeatedly throughout the debates in the convention n 1787 the delegates expressed deep concern over the danger of having a standing army.  They wisely did not want to vest in the hands of one individual the power to commit the country to war.  Instead they chose to vest it in the legislature.

Why the legislature?  In his essay of August 24, 1793, writing under the pseudonym “Helvidius”, James Madison made the case in this fashion:

“The natural province of the executive magistrate is to execute laws, s that of the legislature is to make laws.  All his acts therefore, properly executive, must pre-suppose the existence of the laws to be executed….Another important inference to be noted is that the powers of making war and treaty being substantially of a legislative, not an executive nature….There can e no relation worth examining between this power” [making war] “and the general power of making treaties.  And instead of being analogous to the power of declaring war, it affords a striking illustration of the incompatibility of the two powers in the same hands those who are to conduct a war cannot in the nature of tings, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.  They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.” [“Helvidius” No 1]

Madison’s argument, summed up, is the President, as the chief executive, is charged only with executing that which has been authorized by the legislature.  Consequently, the President cannot, on his own, execute a condition of war – only when authorized to do so by the legislature.  He supports that argument by stating that since a treaty which would conclude a war cannot take effect unless ratified by the Senate (Article II, Section 2), then neither can the commencement of the war without consent of the legislature.

This raises one final question, namely, does “declaring” war, based upon the foregoing argument by Madison regarding the conclusion of a war by treaty, only require the consent of the Senate, or does it require the House’s consent as well?  Article I, Section 8 states that “The Congress shall have the power to…declare war.”   Since Article I, Section 1 defines Congress to “consist of a Senate and House of Representatives,” then yes, both houses must agree on a declaration of war.  But, why both?  The answer is simple:  if a war is engaged, it will be the people who will suffer the cost and pain of the war (not to mention their liberty and property being put at risk), and the sovereign states whose existence could be put in jeopardy, should have the decision-making power as to whether to put themselves in peril.  Since the House represents the people and the Senate originally was to represent the interest of the states, both must concur on such drastic action.

Having now answered the questions of “Why”, “When” and “Who” in respects to declaring war, we will next turn our attention to answering the questions “How” and “What” when war is “declared.”

-May 19, 2017

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To Declare or Not to Declare, that Is the Question – Part II

The basic function and reason individuals form societies and create governments is in a single word:  protection.  As free individuals, we momentarily set aside our natural right of self-protection and assign that to our government (until and unless the government fails or is incapable for any reason in protecting us, at which time we are at liberty to take that right back into our own hands).

In a free society, therefore, the role of declaring war must be relegated to this basic premise, namely, that it is necessary for the protection of our natural right to life, liberty and property.  It is only in totalitarian (or at the time of our founding, monarchial) systems in which war is viewed as a means to an end, e.g. conquest, enrichment, vengeance, etc.  For example, the United States entered WWII because we were attacked first and our natural rights were in danger of being destroyed.  Even then, when President Roosevelt asked Congress to declare war on Japan following the attack on our forces in Pearl Harbor, he made careful use of the tenses of his verbs:

“Hostilities exist. There is no blinking at the fact that our people, our territory, and our interests are in grave danger… I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7, 1941, a state of war has existed between the United States and the Japanese Empire.”

 On the other side of the coin, Japan and Germany went down the road to war for the examples I gave for totalitarian regimes.

In the draft of his farewell address, George Washington admonished the country “That we may be always prepared for War, but never unsheathe the sword except in self defence so long as Justice and our essential rights, and national respectability can be preserved without it.”

In his final version, these words were omitted, but if you read the version he delivered, he spent a great deal of it encouraging his fellow countrymen and those who were to follow to limit their political engagement and alliances with foreign nations unless necessary for defense.

Committing its citizens to a state of war is the gravest move that a government can make, for it places the lives, property and indeed its very existence on the line.  This gravity is even greater when that nation is a free people for then liberty itself is at stake.  Consequently, I believe that the wisdom spoken to us by Washington, even in draft form, behooves us to “declare” war only when such natural rights and our existence as a people is in danger.

Alas, in most of our history, very few instances fall into the category as described by President Roosevelt.  Since the adoption of our Constitution, there have only been five congressionally-declared wars, and only one of them was a declaration to go to war; the other four were like FDR’s request, merely an acknowledgement that a state of war was already in existence.  However, as all of us know, our past is littered with military conflicts, both on this continent and abroad, so we must ask what was the purpose for including this power of war within our Constitution?  We will continue delving into that question next week.

-May 12, 2017

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To Declare or Not to Declare, that Is the Question – Part I

In 1970 Edwin Starr raised the question in his hit song, “War, what is it good for?”, and with this sentiment George Washington concurred in his letter to David Humphreys on July 25, 1785:

“My first wish is, to see this plague” [i.e. war] “to Mankind banished from the Earth; & the Sons and daughters of this World employed in more pleasing & innocent amusements than in preparing implements, & exercising them for the destruction of the human race.”

 Alas, today we are far from realizing Washington’s wish as there are tensions and saber-rattling occurring in all corners of the globe.

I realize that it has been two weeks since I sent out my weekly essay, but because of the current situation in the world and the debate over who has the power to commit our country to war, i.e. the meaning of the constitutional power “to declare war”), I wanted to take time to go back and reread the writings/debates of our founders so as to share with you how they viewed this subject.

There are many questions to be answered before addressing the meaning of this phrase as they understood it, and I plan on addressing them in a series of essays over the next few weeks, basic questions such as “Who?”, “Why?” “When?”, “How?” and “What?”.

Answering these questions from the perspective of the founders and the history surrounding this issue will take more than one or even two 400-word essays, so I hope you’ll forgive my omission over the past two weeks and will look forward to this series.

-May 5, 2017

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Ideologies, the SCOTUS, and the Confirmation of Justice Gorsuch

With the confirmation of Neal Gorsuch as the newest and ninth associate justice on the Supreme Court of the United States (SCOTUS), we are being repeatedly told in the media how this will tilt the court in a conservative direction.  I’ve heard some commentators mention how some very high profile cases will now be decided on a 5-4 vote because Justice Gorsuch will now hold the deciding vote.  I do not know how you feel or if you gave this any thought, but such commentary disturbs me greatly.

What is the purpose of our judiciary?  Alexander Hamilton answered this question in The Federalist Papers No. 78:

“And it [i.e. the judiciary] is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.”

(I would encourage everyone – especially those who sit as judges at all levels – to read Hamilton’s essays on the judiciary as defined in the Constitution in The Federalist Papers Nos. 78 – 83.)

Hamilton’s answer to the purpose of the judiciary raises a second question, namely, what is the purpose of the law?  Frederic Bastiat gave us that answer towards the end of his treatise on The Law:

“What is the law?  What ought it to be?  What is its domain?  What are its limits?  Where, in fact, does the prerogative of the legislator stop?  I have no hesitation in answering, Law is common force organized to prevent injustice; in short, Law is Justice.”

Putting these two definitions together we have a crystal clear understanding of the job of a judge, and especially a justice of the SCOTUS:  to administer the laws so that justice is done.  Indeed, the picture of our judiciary is that of Justitia, the Roman goddess of Justice, who wears a blindfold and holds the scales of justice in her left hand.   Her statue portrays how judges are to be impartial, blind to everything but the facts of the case before them so that they can render a just judgment.

Yet, when we hear that such-and-such a case will now have a 5-4 vote outcome even before the case is heard belies everything I have just described.  The import of what we hear in such statements is that these cases will be judged not on the merits of the facts of the case, but on the preconceived ideology of the justices.  If this be true, then what purpose does the SCOTUS serve?  Why should we believe that justice will prevail when the law is not justly administered?  Would you want your case to be heard if you knew that the outcome had already been determined in the minds of those hearing it, based upon their ideological leanings?  Hardly.

So when I hear that we now will have a “conservative” court because of the ideology of five of the nine justices, and that we can now expect the court to rule this way or that way because of their ideologies, I am deeply dismayed.  I am a conservative, constitutional originalist.    Yes, I want their judgments to be in conformity with the Constitution’s original meaning and intent of its authors – not judicial precedent or “feelings” or ideologies of the justices – but most of all, I want, in the words of Bastiat – Justice.

-April 14, 2017

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