“We Live in a Constitutional Democracy” – ???

I caught a clip promoting an interview with Supreme Court Associate Justice Elena Kagan recently, and the comment they played made me stop in my tracks.  She made the observation that we are a constitutional democracy.  In doing some digging, I found that wasn’t the first time she’s made that observation.

In the case in 2013 where the SCOUS struck down the Defense of Marriage Act, she made this statement to Michigan’s Assistant Attorney General:  “Mr. Bursch, we don’t live in a pure democracy, we live in a constitutional democracy. And the Constitution imposes limits on what people can do, and this is one of those cases.”

 Couple that with her comment in a 1995 review where she wrote about what influences the rulings of a Supreme Court Justice, and you have to scratch your head and wonder how the Republicans in the Senate ever let her get confirmed:  “…it should come as no surprise by now that many of the votes a Supreme Court justice casts have little to do with technical legal ability and much to do with conceptions of value.”  And just whose “conceptions of values” might they be?  Why, the individual justice, of course!

Our founders rebelled against being ruled by the ‘whims” of one man (King George), yet this is precisely what Justice Kagan is saying the basis for her decisions are.  Never mind the concept of the rule of law, or justice being blind to all but the facts.  We now are being dictated to by a subjective judicial oligarchy.

In his famous treatise, Common Sense, Thomas Paine wrote:  “But where, says some, is the King of America?  I’ll tell you….in America, THE LAW IS KING.  For as in absolute governments the King is law, so in free countries the law OUGHT to be King; and there ought to be no other.”  No Justice Kagan, you are not “King” (or “Queen”) over us, though you and the judiciary of this country act like it.  Law is not subjective, nor cannot it be for if so, then it fails to be law based upon principles and justice, but is tyrannical rule by a powerful few, or mob rule by majority (i.e., democracy).

After the draft of the Constitution was completed and ready for acceptance by the states, the aged Benjamin Franklin was leaving Independence Hall in Philadelphia where anxious citizens had gathered to learn of the actions taken by the convention being held there.  A Mrs. Powel of Philadelphia asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” With no hesitation whatsoever, Franklin responded, “A republic, if you can keep it.”  Justice Kagan, we are not a constitutional democracy; Benjamin Franklin stated very plainly we are a republic of democratically elected representatives of the people, and (as originally intended) state legislatively-appointed senators to represent the interest of the states (fyi, Justice Kagan, that’s called “federalism”– a great concept; maybe you could read up on it).

Elena Kagan sits on our Supreme Court and is clueless of these facts.  Thanks to the likes of Justice Kagan and the ignorance of so many of Americans, unfortunately, as Franklin warned, we have not kept our republic, but instead are seeing it fast fading into the darkness of democratic oppression and tyranny.

-August 18, 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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