Contemplating Independence Day
Sitting here on this Independence Day, 2005, contemplating freedom and liberty—and yes, independence—thoughts turn to the greatest threat to all of those values, the United States Supreme Court.
The Supreme Court, not al qaeda, is the biggest threat to our liberty. America has always fended off its external enemies, although you might not agree with that as you read about the failed effort, or the abysmal lack of effort, to control out international borders. However, the Supreme Court is still the worst threat because,
Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding. [Justice Louis Brandeis, dissenting in Olmstead v. U. S. (1928)].
The Supreme Court never seems to go through a term anymore without further encroaching on our liberty. One of the most recent examples, Kelo, et al. v. New London, Conn., et al, decided June 23, 2005, greatly expanded the power of local governments to seize your house, your church, your small business to give to another private individual for “economic development” [with no other "public purpose" than to allow the government to collect more taxes].
But Kelo is not the only example. The Supreme Court has given the federal district courts the power to levy taxes without following the legislative process [Missouri v. Jenkins, (1990)]; in a long line of cases it has severely restricted the right of citizens to profess their religious beliefs in public places; the Court has given greater rights to criminals, thereby diminishing the right of crime victims to get justice [See: Miranda v. Arizona (1966) and the line of cases which followed]; it has given foreign terrorists the right to sue in U.S. District Courts, and thereby the right to join U. S. domestic criminals in the sport of frivilous lawsuits [Rasul v. Bush (2004); and it has given itself the power to re-write the Constitution. [See: Scalia’s dissent in Dickerson v. U. S. (2000)].
The Dickerson case represents the Court coming “out of the closet” and doing openly what it had been doing covertly for years—amending the United States Constitution. The author likes to use the example of Roe v. Wade, (1973) because it is a perfect example of the Court admitting it has no authority in the Constitution, or even in its own prior decisions, to rule in favor of a woman’s right to have an abortion, but doing it anyway. It just made it up. Justice Blackmon wrote:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, in the penumbras of the Bill of Rights, in the Ninth Amendment or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.
The careful reader will notice that after admitting there is no right of privacy in the Constitution, Blackmon does NOT cite any Court cases supporting his view. Instead he makes vague reference to “certain areas or zones of privacy” enunciated by other justices [somewhere—we aren’t told where] and to “penumbras of the Bill of Rights” [whatever that means]. From this weak springboard, he leaps to the radical conclusion that the Constitution guarantees a woman’s right to have an abortion. [Radical in this instance refers to the drastic departure from settled law, not necessarily implying that abortion is per se radical--although to some it may be].
Another reason the author likes to use Roe as an example is he doesn’t have a dog in that fight. He doesn’t have a uterus so he will never become pregnant. His wife is beyond her childbearing years so he doesn’t ever expect to get anyone pregnant. Therefore, the legal right to have an abortion is a non-issue for him, except that Roe is proof that, as Chief Justice Warren Berger said, “We’re the Supreme Court and we can do what we want.”
Several constitutional amendments are currently under consideration to try to cope with bad decisions of the Court: defining marriage as being between one man and one woman and prohibiting desecration of the American flag. On June 30, 2005, Representative Earnest Istook, (R-OK) and Sanford Bishop (D-GA) proposed a constitutional amendment restoring religious freedom. The amendment, similar to the one introduced by Istook in the 107th Congress with 88 co-sponsors, has 100 co-sponsors this time around. Legislation is also pending to reverse the effects of Kelo v. New London.
But it won’t be enough, even if successful.
It will never be possible to amend the Constitution fast enough and often enough to keep up with an illegitimate, activist Supreme Court. Of some ten thousand amendments proposed during the history of this country, only twenty-seven have been ratified and become law. If several amendments compete for the public’s attention, it diminishes the probability that any one of them will be adopted. We should instead attack Marbury v. Madison, the 1803 case whereby Chief Justice John Marshall seized, without any authority in the Constitution, the power to overrule an Act of Congress.
We should all unite in a single amendment to take away the Supreme Court’s de facto power to amend the Constitution. [De facto is used in the legal sense of “a past action or state of affairs which must be followed for all practical purposes, but is illegal or illegitimate.” –Black’s Law Dictionary]. Marbury v. Madison resurrected the power of judicial review (the power to consider and overturn Acts of Congress) just a few years after the framers of the Constitution specifically rejected giving that power to the Court.
Most of the people who met in convention to adopt the Constitution were still alive and active in politics and the action by Marshall was met with outrage by Thomas Jefferson and others, almost leading to Marshall’s impeachment.
What was an illegitimate seizure of power for the Court in 1803 is accepted as legitimate and necessary today. Left unchecked, it will, as Jefferson predicted, eventually lead to the end of Representative Democracy. The end may not be that far off.
The Supreme Court, not al qaeda, is the biggest threat to our liberty. America has always fended off its external enemies, although you might not agree with that as you read about the failed effort, or the abysmal lack of effort, to control out international borders. However, the Supreme Court is still the worst threat because,
Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding. [Justice Louis Brandeis, dissenting in Olmstead v. U. S. (1928)].
The Supreme Court never seems to go through a term anymore without further encroaching on our liberty. One of the most recent examples, Kelo, et al. v. New London, Conn., et al, decided June 23, 2005, greatly expanded the power of local governments to seize your house, your church, your small business to give to another private individual for “economic development” [with no other "public purpose" than to allow the government to collect more taxes].
But Kelo is not the only example. The Supreme Court has given the federal district courts the power to levy taxes without following the legislative process [Missouri v. Jenkins, (1990)]; in a long line of cases it has severely restricted the right of citizens to profess their religious beliefs in public places; the Court has given greater rights to criminals, thereby diminishing the right of crime victims to get justice [See: Miranda v. Arizona (1966) and the line of cases which followed]; it has given foreign terrorists the right to sue in U.S. District Courts, and thereby the right to join U. S. domestic criminals in the sport of frivilous lawsuits [Rasul v. Bush (2004); and it has given itself the power to re-write the Constitution. [See: Scalia’s dissent in Dickerson v. U. S. (2000)].
The Dickerson case represents the Court coming “out of the closet” and doing openly what it had been doing covertly for years—amending the United States Constitution. The author likes to use the example of Roe v. Wade, (1973) because it is a perfect example of the Court admitting it has no authority in the Constitution, or even in its own prior decisions, to rule in favor of a woman’s right to have an abortion, but doing it anyway. It just made it up. Justice Blackmon wrote:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, in the penumbras of the Bill of Rights, in the Ninth Amendment or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.
The careful reader will notice that after admitting there is no right of privacy in the Constitution, Blackmon does NOT cite any Court cases supporting his view. Instead he makes vague reference to “certain areas or zones of privacy” enunciated by other justices [somewhere—we aren’t told where] and to “penumbras of the Bill of Rights” [whatever that means]. From this weak springboard, he leaps to the radical conclusion that the Constitution guarantees a woman’s right to have an abortion. [Radical in this instance refers to the drastic departure from settled law, not necessarily implying that abortion is per se radical--although to some it may be].
Another reason the author likes to use Roe as an example is he doesn’t have a dog in that fight. He doesn’t have a uterus so he will never become pregnant. His wife is beyond her childbearing years so he doesn’t ever expect to get anyone pregnant. Therefore, the legal right to have an abortion is a non-issue for him, except that Roe is proof that, as Chief Justice Warren Berger said, “We’re the Supreme Court and we can do what we want.”
Several constitutional amendments are currently under consideration to try to cope with bad decisions of the Court: defining marriage as being between one man and one woman and prohibiting desecration of the American flag. On June 30, 2005, Representative Earnest Istook, (R-OK) and Sanford Bishop (D-GA) proposed a constitutional amendment restoring religious freedom. The amendment, similar to the one introduced by Istook in the 107th Congress with 88 co-sponsors, has 100 co-sponsors this time around. Legislation is also pending to reverse the effects of Kelo v. New London.
But it won’t be enough, even if successful.
It will never be possible to amend the Constitution fast enough and often enough to keep up with an illegitimate, activist Supreme Court. Of some ten thousand amendments proposed during the history of this country, only twenty-seven have been ratified and become law. If several amendments compete for the public’s attention, it diminishes the probability that any one of them will be adopted. We should instead attack Marbury v. Madison, the 1803 case whereby Chief Justice John Marshall seized, without any authority in the Constitution, the power to overrule an Act of Congress.
We should all unite in a single amendment to take away the Supreme Court’s de facto power to amend the Constitution. [De facto is used in the legal sense of “a past action or state of affairs which must be followed for all practical purposes, but is illegal or illegitimate.” –Black’s Law Dictionary]. Marbury v. Madison resurrected the power of judicial review (the power to consider and overturn Acts of Congress) just a few years after the framers of the Constitution specifically rejected giving that power to the Court.
Most of the people who met in convention to adopt the Constitution were still alive and active in politics and the action by Marshall was met with outrage by Thomas Jefferson and others, almost leading to Marshall’s impeachment.
What was an illegitimate seizure of power for the Court in 1803 is accepted as legitimate and necessary today. Left unchecked, it will, as Jefferson predicted, eventually lead to the end of Representative Democracy. The end may not be that far off.
posted by GN at 2:48 PM
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