Battle over the Supreme Court

Battle over the Supreme Court 

Thomas Jefferson once wrote that it was not an overreaching congress that was to be most feared, for taxes and elections would keep them under control. No, the most damaging government institution to our liberties, Jefferson warned in 1820, was the federal judiciary.

In a letter to Thomas Ritchie, Jefferson wrote:

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 juris-dictionem.'

The reaction to Justice Anthony Kennedy's retirement by those on both the political left and right indicate that Jefferson had it right and what he feared has come to pass.

The mainstream propaganda media and Hollyweird went into immediate crisis mode over the thought of who Trump might appoint. The New York Daily News greeted readers with the headline, "We Are F*#%'d." CNN's Chuck Todd tweeted "Summer is going to suck." MSNBC's Chris Matthews, whose leg no longer tingles, said, "If the Democrats fail to stop him, there will be, I predict, a full-scale rebellion against the leaders."

Actress, unfunny "comedienne" and co-host of "The View" Whoopie Goldberg yelled, "Get out of my vagina," as if anyone anywhere desired to go there.

Author Stephen King, whose nature has grown as dark as his novels, tweeted, "Welcome to the 'Handmade's Tale.'"

CBS Late Show host Stephen Colbert said, "We are supremely screwed."

The New York Times proclaimed that "a political war" had "roared to life" in Washington over replacing Kennedy. From the Times:

"I think it has sunk in very quickly that this is the biggest fight of them all," said Brian Fallon, a veteran Democratic operative whose organization, Demand Justice, is leading the charge against Mr. Trump's pick. "If we don't succeed in this fight, Trumpism will be here for 40 years, not just four years." Democratic strategists say the party needs to model its resistance to the successful fight Democratic senators waged in 1987 against Judge Robert H. Bork, President Ronald Reagan's pick for the Supreme Court. After they defeated Judge Bork, Mr. Reagan eventually settled on Justice Kennedy, who was seen as a more moderate choice.

Recall that Democrats ran a scorched-earth policy on Bork, led by the "Lion of the Senate," the woman-slaughtering, philandering drunkard Teddy Kennedy, who falsely claimed, "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, and schoolchildren could not be taught about evolution." It became known as "Borking."

Bork's "sin" was he was a true originalist who believed, like the Founders, the Supreme Court's role was limited. The country would be much freer had Bork been confirmed to the Supreme Court.

The "Borking" of Trump's potential nominees has already started, with the sophistically-named "Demand Justice" running online ads against three people from Trump's list of possible replacements.

The political right is as enthused as the left is agitated.

"Justice Kennedy's retirement makes the issue of Senate control one of the vital issues of our time. The most important thing we can do," The Hill reportsPresident Trump said Wednesday in Fargo, where he was stumping for Republican Representative Kevin Cramer.

The Hill writes that Republicans are greeting the Supreme Court clash expected to dominate Senate politics in the months leading to Election Day with glee, but it is filling Democrats with anxiety.

When the nomination of one judge creates such profound reactions we must realize the Supreme Court has usurped far too much power. The Founders never intended for the Supreme Court to become the dominate branch of government, or for issues of constitutionality be settled by five black robe-wearing oligarchs.

The "sapping and mining" Jefferson noted began in earnest 1803 when the U.S. Supreme Court established in its Marbury v. Madison decision the concept of "judicial review," determining that it was the purview of the courts to decide on the constitutionality of laws passed by Congress or actions taken by the President. It is a concept discussed at length in the Philadelphia Convention and the ratifying conventions of the several states, but found nowhere in the Constitution in Article III.

Most of the Founders — noted exceptions being John Marshall (the Supreme Court justice who wrote the majority opinion in Marbury v. Madison), Rufus King, Oliver Ellsworth and William Richardson Davie — argued against the concept. John Mercer of Virginia said that he "disapproved the doctrine, that the judges, as expositors of the Constitution, should have the authority to declare the law void." He thought "laws ought to be well and cautiously made, and then be uncontrollable." James Madison said, "The meaning of the Constitution may as well be ascertained by the legislature as by the judicial authority."

But none of them thought the federal judiciary should have authority to overturn state laws.

Jefferson would later write of judicial review:

The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.

In fact, Marshall himself argued both for and against judicial review in the 1788 Virginia Ratifying Convention when he claimed the Supreme Court could only rule on federal law, not state statutes. But in 1810, Marshall wrote the majority opinion in Fletcher v. Peck, a ruling in which a Georgia law was ruled unconstitutional.

"At the establishment of our constitution, the judiciary bodies were supposed to be the most helpless and harmless members of the government," Jefferson wrote in 1823. "Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account."

The concept of judicial review is the ultimate example of the fox guarding the henhouse. Supreme Court justices are unelected autocrats with lifetime appointments. They are paid by the government, they are agents of the government and they almost always rule in favor of the government. There is no accountability to the people and the people have no say in their appointment.

The people have been propagandized to believe the Supreme Court always rules based on the law, but the court is no less political than the other branches of government, hence the fight over whether the court is liberal or conservative. The law is neither liberal nor conservative. It is either a just law falling under Constitutional powers or it is not.

Nor are Supreme Court justices untainted by political money, as most believe.

Both the executive and legislative branch have just as much authority to determine the constitutionality of an issue as the Supreme Court, as Madison noted.

The Constitution was created by the states. The 10^th Amendment guarantees all powers not delegated to the United States by the Constitution to the states and the people. So when the judicial branch of the federal government can overturn a state law as unconstitutional, the Constitution has been turned on its head. The creator cannot be overruled by the created.

Now you may be asking what can be done to correct this and restrain the judicial branch. Clearly the executive and legislative branches have ceded their authority, especially the Congress, which under Article III, Section 2 has the ability to regulate the courts.

But I'm not certain it's possible to rein in SCOTUS save in the aftermath of economic and societal collapse or through secession.

But one route for remedy is nullification. It's a process already taking root in Colorado; Washington; Oregon; Alaska; and Washington, D.C. — all of which have nullified federal laws on marijuana. Nullification is a legitimate process and was first used by Jefferson and Madison in 1798.

The elites have used gradualism to slowly deprive Americans of their rights one by one and bit by bit. It's taken 242 years to get us to where we are today. It will take 240 years or more to return the same freedom to Americans they had at the founding of the nation.

And it can never be done through the election process if politicians continue to employ the so-called "art of compromise." Because when liberty and tyranny compromise, liberty is lost.