Check and Balance or Checkmate? – Part II

One obscure judge can issue a ruling that denies a President his duly authorized constitutional obligation to “faithfully” execute the laws passed by Congress in regards to illegal immigration.  One judge on the Supreme Court can re-define a term in a statute contrary to what its authors said it was and thereby foist upon the entire nation the catastrophe laughably known as the Affordable Care Act.  On, and on and on it goes, yet without any restraint being exercised by the Congress as a check against the overreach of judicial authority.  As pointed out in the previous essay (Check and Balance or Checkmate? – Part I) Congress has both the authority and the responsibility to impeach judges who refuse to abide within the Constitutional confines of their office, but they have seldom done so and even our founders such as Thomas Jefferson scoffed at impeachment as a reliable check against judicial overreach.

Robert Yates, a judge from New York and a delegate to the 1787 Constitutional Convention, became so upset with the deliberations of the other delegates that he left before the draft of the Constitution was completed and became an ardent opponent to the ratification of the Constitution.  Writing under the pseudonym “Brutus”, he authored one scathing essay after another on how abusive the judicial branch of the new government would become if the Constitution was ratified.  Herewith are just a few (and he wrote many more along the same line) of his warnings:

“They” [i.e., justices of the Supreme Court] “will give the sense of every article of the constitution, that may from time to time come before them.  And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution.  The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or control their adjudications.  From this court there is no appeal….

From these considerations the judges will be interested to extend the powers of the courts, and to construe the constitution as much as possible, in such a way as to favour it; and that they will do it, appears probable….

When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it?  And they are authorized to construe its meaning, and are not under any control?

This power in the judicial, will enable them to mould the government, into almost any shape they please.”  (January 31, 1788)

I ask you – if I had not identified who authored these words and when, would you not have thought they were written by someone today for this is exactly what the judicial branch has done over and over again?  Truly, Yates – “Brutus” – was prophetic.  So, if impeachment is a “paper tiger” vis-à-vis judicial overreach, what can be done when such overreach occurs?  This will be our next matter to address.

-April 24, 2018

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Check and Balance or Checkmate? – Part I

Our system of constitutional government boasts having a division of power among the three areas of governmental power (i.e., legislative, executive and judicial) and infusing them with power in such a way as to cause them to serve as a check against each other from increasing its power at the expense of the freedom and liberties of the citizens, thus creating a “balance of power.”

It is easy to see how the first two segments of our government serve to check the power of the other.  The Executive (President) checks the power of the legislature primarily through the means of the veto.  The Legislature (Congress) can override the veto by the high bar of 2/3 vote of both houses, and they also have the power of impeachment of members of the executive branch.

Yet it must be asked, “How and who places a check against the power of the Judiciary?”  It is argued that the control is from both of the other branches, namely, judges must be nominated by the President and confirmed by the Senate.  However, once appointed to the federal bench, then what?  The answer, according to Alexander Hamilton in The Federalist No. 81 is impeachment:

“This is alone a complete security.  There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations.”

It was for this reason that in The Federalist No 78 he had proclaimed that the judiciary was the weakest of the three branches of the federal government.  Oh how wrong Mr. Hamilton was!  Our Republic was not even fifty years old when Thomas Jefferson made this observation regarding the judiciary in his letter to Thomas Ritchie on December 25, 1820:

“But it is not from this branch of government [i.e., the legislature] we have most to fear.  Taxes and short elections will keep them right.  The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric.  They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.  This will lay all things at their feet, and they are too well versed in English law to forget the maxim, ‘boni judicis est ampliare jurisdictionem’ (i.e., ‘good justice is broad jurisdiction’, which means the duty of a good judge is to enlarge the jurisdiction of his court);….Having found, from experience, that impeachment is an impracticable thing, a mere scare-crow, they consider themselves secure for life;….A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.”

 So, who was right – Jefferson, or his arch-nemesis, Hamilton?  What did those who saw a danger in Article III of the Constitution when it was drafted, have to say on this topic, and what remedy can be had, if impeachment is, as Jefferson stated and has been proven to be true over the centuries, “a mere scare-crow” and “an impracticable thing” when it came to reining in a runaway judiciary?  I’ll address this in the next essay as we examine this very real threat to our liberties by an unaccountable judiciary.

-April 13, 2018

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“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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