Friday, August 21, 2015

The Big Constitutional Lie

The other night Bill O’Reilly repeated the Big Lie about the Constitution; namely that the Supreme Court decides what the Constitution says.

In all fairness it’s clear Bill wasn’t intentionally lying. Rather he was espousing a philosophy that has crept into the mainstream of American thought since the 1960s.

At first glance the idea that the Supreme Court has to decide on Constitutionality makes sense but a simple question will show that the idea has serious problems.

Does anyone think if the Supreme Court judges were clones of Thomas or Scalia we’d have seen abortion legalized, same sex marriage mandated, or ObamaCare’s fees turned into taxes?  Yet if we know that the definition of what is “Constitutional” depends on men not the law and that definition changes with a changing of the guard on the Court we have to acknowledge that the Court is an unelected political, not judicial, body.

It’s precisely because liberal Justices are biased that every nomination to the Supreme Court is a huge political war; people know the liberal Judges aren’t really interpreting the Constitution in light of the intent of the folks who wrote or passed it but rather in light of what they would like America to be.

Jefferson pointed out this precise problem when he wrote:

You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves

Historically the Court took on an imperial role in the 1960’s creating rights and warping the Constitution to fit the member’s liberal perspectives.

Imperial is a valid description since it’s nearly impossible to overturn a decision by the Court, unless different judges are put in place.

However impeaching a judge is nearly impossible unless both parties hate them thereby guaranteeing lifetime sinecures for liberal judges no matter how off the wall their decisions might be.  Similarly changing the Constitution is a huge process that can take decades and is hardly a viable mechanism to counteract 60 minutes of work by a liberal majority on the Court.

The Big Constitutional Lie(BCL) is bad because it makes Americans think that we were intended to live in a society where 5 rich lawyers can completely change society as they please so long as they invoke the magic word Constitutional.

When the Court has completely changed American culture the people, who tend to be law abiding, have presumed that the Court was acting honestly and gone along with it. That’s why the legalization of pornography and abortion were met with relatively little response; people believed the BCL.

But it’s time to confront the BCL and listen to what Abraham Lincoln said in his first Inaugural address:

[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Over most of the history of the US the Supreme Court Judges tried to adhere to the intent of the Framers and the actual wording of the Constitution but that has changed.

Lawyers have been lured by the sweet scent of power to embrace the concept of the Constitution as a “living” document. By that they mean that unelected Judges and the lawyers who bring cases to the Court can change the intent and meaning of the Constitution without having to bother with the messy task of actually convincing the American people.

The liberal judges on the Supreme Court adhere to the idea of a “living Constitution” that they can mold to fit their view of what America should be.

For example judge Ginsberg said:

"It's intended to be looked at in the context of contemporary events, in the context of history, in the context of past precedent, and the intent of the framers. Put all those things together and hopefully what you get is the right answer to some perplexing issue that the court is confronting,"

She also said:

“I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012.” 
“I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.” 

Clearly when Judge Marshall defended judicial review in Marbury v Madison he was not thinking of Justices who thought the Constitution was a badly written document that didn’t do a good job at embracing basic human rights.

To see the hypocrisy of the liberal position let’s look at a hypothetical situation.  Suppose that a Democrat run Congress had passed a law requiring President Bush to remove troops from Iraq as quickly as possible. Bush then sent more troops to Iraq saying that the quickest way to get the troops out was to defeat the insurgents and that required more troops. No liberal would support a Supreme Court that sided with Bush and ignored the intent of Congress yet those same liberals gleefully support the idea of freeing the Supreme Court from the “shackles” of original intent when the judges rulings impose abortion or same sex marriage on America.

Given that the Court is clearly no longer an impartial body honestly striving to adhere to the intent of the Framers Americans have to realize that our freedom is being stolen.

Liberals use the Supreme Court to impose their policies without getting the consent of the people thereby essentially making the US a country where power resides not in the people but in the lawyers and judges. That effectively repeals the American Revolution.  After all how is an unelected appointed for life King George imposing an arbitrary law any different than an unelected appointed for life Supreme Court imposing an arbitrary law?

How we can restore the Supreme Court to an impartial body is a very thorny question in light of liberals rejection of the rule of law the first step we can take is to refute and reject the BCL.

An exercise of raw judicial power does not define what the Constitution says it only defines what the law is. The difference is that the Constitution, viewed in the light of the Framers, is unchanging where as the rulings of the Court can change whenever the ideology of the majority changes.

When Americans realize that the Supreme Court is not an honest broker but a radicalized revolutionary agent of change many, but sadly not all, will recognize the danger.

We need to change the American attitude of viewing the Supreme Court as an infallible source of truth as a first step in what will be a long process of remaking the Court into an impartial agent intent on ensuring that the laws of the land are followed.

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1 comment:

David Thayer said...

What part of "All ' am I misunderstanding.