Category Archives: US Constitution

Congress, Not Judges, Should Make Law

This is worth your read if you are wondering about filling the vacant seat on the Supreme Court. mrossol

National Review –  9/22/2020 By Kevin D Williamson

Ruth Bader Ginsburg did a great many interesting and impressive things in her life, but she never did the one thing she probably really should have done: run for office. Ruth Bader Ginsburg wasn’t an associate justice of the Supreme Court — not really: She was a legislator in judicial drag.

You need not take my word on this: Ask her admirers. “Ruth Bader Ginsburg had a vision for America,” Linda Hirshman argues in the Washington Post. What was her vision? “To make America fairer, to make justice bigger.” That is not a job for a judge — that is a job for a legislator. The job of making law properly belongs to — some people find this part hard to handle — lawmakers. Making law is not the job of the judge. The job of the judge is to see that the law is followed and applied in a given case. It does not matter if the law is unfair or if the law is unjust — that is not the judge’s concern. If you have a vision for America, and desire to make the law more fair or more just, then there is a place for you: Congress. That is where the laws are made.

This distinction is an important one. As you may have noticed over the course of the summer, Americans do not agree on everything. Some of us have ideas about what is good, decent, fair, just, wise, intelligent, prudent, and necessary that are radically different from the ideas other Americans have about what is good, decent, fair, just, wise, intelligent, prudent, and necessary. Democracy is not good for very much, but democratic institutions are how we settle those disagreements. Even the antidemocratic elements of U.S. government, such as the Bill of Rights, which put certain questions beyond the reach of mere temporary majorities, came out of democratic institutions and were implemented through a democratic process. It is from that that they derive their legitimacy. Democracy has its shortcomings — mostly rooted in the fact that human beings are universally fallen and in the majority savage — but the alternative is bonking each other over the head over every disagreement.

Put another way, the alternative is might makes right — which is exactly the kind of “jurisprudence” Justice Ginsburg and others of her kind have long practiced. There isn’t a goddamned word about abortion or gay rights in the Constitution, and it is absurd to think that such rights had been hiding there, lurking in the ol’ penumbras, since the 18th flippin’ century, waiting to be discovered by a committee of progressive lawyers who somehow see the “real” Constitution that went completely undetected by the men who wrote and ratified the document we actually have. That should be obvious even to people who support abortion or gay rights or other things that have been magically discovered in the Constitution. For the New York Times, Justice Ginsburg was a “feminist icon.” And she was — but it was not her job to be a feminist icon or to impose feminist ideology — or any other ideology — on the law and on the American public, substituting her own desires and preferences for those that are the result of the actual democratic process, daft as it often is.

Justice Ginsburg’s using her position to try to impose a feminist vision on federal policy ought to be recognized for what it was: an abuse of power. If you want to rewrite the law along feminist lines, that’s a perfectly honorable project — run for Congress.

The real fissure running through the Supreme Court is not between so-called liberals and notional conservatives, but between those who believe that judges are superlegislators empowered to impose their own vision on society and those who believe that judges are constrained by what the law actually says. The latter is the position of the Federalist Society and many lawyers associated with it, and that this position — that the law says what it says, not what people with power wish for it to say — should be controversial is an excellent indicator of why faith in our institutions has eroded so deeply. “If Republicans give Ruth Bader Ginsburg’s seat to some Federalist Society fanatic, Democrats should pack the court,” reads the line over Michelle Goldberg’s New York Times column. Read that and ask yourself who the fanatic really is.

This should be obvious enough even to people who share Ginsburg’s ideology and political preferences. Maybe you think that the federal law should enshrine an unassailable right to abortion, or that the Bill of Rights shouldn’t protect the right to keep and bear arms as broadly and explicitly as it does. Many people would agree with you, and there are reasonable if erroneous good-faith arguments for those positions. But that is not what the law actually says. So, take it to the voters. In the case of abortion, that would have meant a state-by-state fight in the legislatures, which probably would have resulted in an abortion regime that is neither as permissive as the one we have nor as restrictive as abortion opponents would like, i.e., one that more closely resembles the actual position of the American electorate. (A large majority of Americans believe that abortion should be legal in the first trimester, and even larger majorities believe it should be restricted in the second and third trimesters.) In the case of gun control, proceeding legitimately would mean repealing the Second Amendment in order to impose the restrictions that progressives want but that are prohibited by the Bill of Rights. Yes, both of those would be long, hard, ugly, and frustrating fights that would almost certainly leave both sides partly unsatisfied — i.e., democracy.

It is, of course, much more tempting to get five allies on the Supreme Court to pretend that what you want is already mandated in the law, waiting to be discovered. And that was Justice Ginsburg’s specialty. Her most famous decision, outlawing the Virginia Military Institute’s single-sex admissions policy, was exactly the kind of thing you would expect from a “feminist icon” but shoddy — indeed, preposterous — as law. As Justice Antonin Scalia notes in his scathing dissent in the VMI case, other publicly funded military academies had changed their admissions policies, “not by court decree, but because the people, through their elected representatives, decreed a change.” What Justice Ginsburg was engaged in by inventing a prohibition on single-sex military academies was “not the interpretation of a Constitution, but the creation of one.”

Maybe Ginsburg was right to believe what she believed. That is irrelevant. The question is not whether VMI should have been admitting women, but whether the Constitution prohibited VMI’s policies and empowered activists such as Justice Ginsburg to replace those policies with others more to the liking of the nation’s progressive lawyers. It didn’t and doesn’t. Neither the text nor the history nor practice justified Justice Ginsburg’s decision — only her own sense of morality did. Her opinion is not legal reasoning — it is legal decoration, reverse-engineered and fitted to the decision she was committing to making for political rather than legal reasons.

Oh, but everything is political! they’ll say. I do not believe that judges are incapable of actually doing their jobs even if that means following the law to results other than the ones they would prefer — Justice Scalia’s account of the flag-burning issue is one example showing that it can be done the right way — but doing so would mean trying to do that job rather than treating the federal bench as a stage for score-settling, advantage-seeking, and constituent-servicing. If you don’t believe that judges should be constrained by the law — that power is power is power and that’s that — then you don’t have much of an argument against Donald Trump and Mitch McConnell filling this seat, which is not “Ginsburg’s seat.” And unlike Justice Ginsburg, who made up the Constitution as she went along, in this case Trump and Senate Republicans would be acting within their plain constitutional powers. In contrast to Ruth Bader Ginsburg, feminist icon, they would be doing their jobs.

The timing of Ginsburg’s death is a political inconvenience for Democrats — them’s the breaks. Trying to convert this into a question of principle is silly and dishonest. Yes, lots of Republicans said last time around that we shouldn’t confirm a justice right before an election. Lots of Democrats said last time round that we should. Handing out indictments for hypocrisy in Washington is like writing up people in New Orleans at Mardi Gras for public intoxication. Nobody doubts that the charge is a valid one, but, please, spare us the shock and sanctimony.

And after the slandering of Robert Bork, Clarence Thomas, and Brett Kavanaugh, arguing that Republicans should decline to move forward on the nomination for comity’s sake is laughable. Nobody believes for one second that if President Hillary Clinton were struggling toward an uncertain reelection campaign and Senate majority leader Chuck Schumer had the chance to confirm a new Supreme Court justice of her choosing that the Democrats would hesitate for a second. Nor have they ever shown themselves interested in replacing “conservative” justices — meaning those who are not open partisan campaigners on the model of Ginsburg — with conservatives or moderates in the name of ideological balance. The Democrats put left-wing activists on the Court when they get the chance, even if, like Elena Kagan, they have to lie their way through their confirmations to get there. Democratic complaints about political hardball after the outrageous campaign of fantastical fiction and slander directed at Kavanaugh, the anti-Catholic hatred directed at Amy Coney Barrett by Senator Dianne Feinstein (D., Calif.), etc., are beneath contempt. So is threatening to create a constitutional crisis through a Court-packing scheme if a Democratic president and Senate are elected, threatening (more) riots and (further) arson, and other attempts at extortion.

On the matter of the Court-packing endorsed by Michelle Goldberg et al., Democrats should be careful about the precedents they set. Republicans may learn slowly, but they learn. Democrats spent generations engaged in partisan gerrymandering and then suddenly got religion on that subject when Republicans got good at it. They didn’t think their slander of Robert Bork and the politicization of the nomination process would come back to bite them, but it did. Mitch McConnell believed the politics were on his side, and he was right. A Democratic Senate might reorganize the federal courts in a way that gives their party a momentary advantage — which is banana-republic stuff, but that is what Michelle Goldberg of the Times advocates, and she is not alone — but there will be a Republican majority again. There’s one now. Is that a weapon you want to put in Mitch McConnell’s hand? In Donald Trump’s hand? Because the genie doesn’t go back into the bottle.

Justice Ginsburg could have retired some time ago — and probably should have. But she believed in 2016 that Hillary Rodham Clinton was going to win the election, and so she held on. That was a political miscalculation. But that happens from time to time. Dwight Eisenhower was asked about the greatest regrets of his time as president, and he answered: “I have made two mistakes, and they are both sitting on the Supreme Court.”

Ginsburg’s legacy is not a body of legal opinions but a deformed and disfigured judiciary, one in which the American people have — with good reason — lost some measure of faith. Setting that right will be the work of a generation. And that work begins with understanding that a judge’s concern is not justice or fairness or progress but the law, and that people who want to change the law should run for office.

 

https://www.nationalreview.com/the-tuesday/ruth-bader-ginsburg-didnt-understand-her-job/?utm_source=Sailthru&utm_medium=email&utm_campaign=TUE_20200922&utm_term=Tuesday-Smart

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Judge Rules Pennsylvania Governor’s Shutdown Orders Unconstitutional

Hmm. Some clear thinking about the Constitution from the Federal Bench. Hope to see more of it. mrossol

 

 
September 14, 2020 – The Epoch Times
 

A federal judge has struck down Pennsylvania Gov. Tom Wolf’s CCP virus restrictions that required people to stay at home, put limits on gatherings, and ordered “non-life-sustaining” businesses to stay shut down.

U.S. District Judge William Stickman IV on Sept. 14 sided with plaintiffs that included drive-in movie theaters, hair salons, farmers markets, and several GOP officials who sued as individuals. Butler, Greene, Fayette, and Washington counties were also listed as plaintiffs.

Stickman’s judgment stipulates that “the congregate gathering limits imposed by defendants’ mitigation orders violate the right of assembly enshrined in the First Amendment,” the “stay-at-home and business closure components of defendants’ orders violate the due process clause of the Fourteenth Amendment,” and “the business closure components of Defendants’ orders violate the Equal Protection Clause of the Fourteenth Amendment.”

The judge, who was appointed by President Donald Trump, argued that the actions taken by Wolf and Pennsylvania Secretary of Health Rachel Levine, who are both Democrats, “were undertaken with the good intention of addressing a public health emergency,” but that “even in an emergency, the authority of government is not unfettered.”

“The liberties protected by the Constitution are not fair-weather freedoms—in place when times are good but able to be cast aside in times of trouble,” Stickman said. “There is no question that this country has faced, and will face, emergencies of every sort.”

Stickman added that the solution to the crisis “can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment.”

Furthermore, he said, the Constitution “cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.”

Wolf has lifted a number of restrictions since the lawsuit was filed several months ago, allowing businesses to open again and canceling the statewide stay-at-home order. Pennsylvania also has a gathering limit of 25 people for events indoors and 250 for events outside.

Pennsylvania has reported that more than 145,000 people have contracted the CCP (Chinese Communist Party) virus since the beginning of the pandemic, while more than 7,800 have died.

Wolf’s spokesperson told The Associated Press that his office is reviewing the judge’s decision.

“It’s a complete and total victory for the counties, the businesses and the representatives,” said attorney Thomas W. King III, who represented the plaintiffs, as reported by Triblive. “You can’t order the entire population of Pennsylvania to stay at home.”

https://www.theepochtimes.com/judge-rules-pennsylvania-governors-shutdown-orders-unconstitutional_3499183.html?ref=brief_News&utm_source=morningbrief&utm_medium=email&utm_campaign=mb

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MY PERSPECTIVE ON THE CURRENT STATE OF AFFAIRS

This is a work-in-progress. It will be my attempt to outline my thinking on the current state of America and to a lesser extent, the rest of the western world, and then . . .

  1. Verifiable, objective truth
  2. There is objective good and evil, bad
  3. Man is inclined to evil, wrong
  4. Racism is primarily a function of the human heart.
  5. The Constitution of the United States is as good a “constituting framework” as there has been implemented in history.
  6. The United States experience, while not perfect, is about as good as the world has ever seen.
  7. More people have risk their lives trying to get to the USA than any other country. There is a reason why this is so.
  8. The nuclear family (one man-one woman) is the best institution for the well-being of society. Without wide-spread practice/adoption of this model, societal functioning becomes very frail.
  9. Slavery was never the intent of the founders of the United States, but was allowed as a compromise to get the bulk of the founding document.
  10. No country other than the USA has fought a civil war over the institution of slavery. The priority of the majority (the North) was to maintain the union of the states, AND abolish slavery.
  11. The response of many governmental office holders has been “unconstitutional” in their over-reach of authority.
  12. There is more systemic racism than many [non-black] Americans want to admit, but the American society is not built on a primarily racial framework, and there has been much reduction in “systemic racism” since 1776.
  13. The net affect of the Civil Rights Act of 1964 has been negative.
  14. The Democrat party has done more hinder progress of African Americans than help.
  15. The concept of “Systemic Racism” is being used to push America solidly into the progressive camp. See this post.
  16. “Systemic Racism” is not a logical construct. [Reference]

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The Astonishing Shredding of the Constitution by California-Based Judges and the Legislature

If the executive, or legislative, or judicial branch of government can suspend rights enumerated in the US Constitution “at will” than we have no “rights”; only “permissions”. mrossol

 

May 27, 2020 The Epoch Times. Thomas Del Beccaro – CONTRIBUTOR
 
 

As the nation prepares to reopen, the response to the COVID-19 crisis has taught us many lessons, not the least of which is that politicians and judges are willing to run roughshod over the Constitution if it suits their purposes.

Nowhere is that more true than in California.

Recently, a panel of 9th Circuit judges based in California, in a split opinion, upheld a ban on church services. Two judges who are sworn to uphold the law suspended the Constitution and wrote that if a “court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Meanwhile, California’s Gov. Gavin Newsom has “required” “Mortgage Payment Relief During COVID-19 Crisis.” Courts have suspended eviction and foreclosure proceedings and the legislature is considering a law that would allow “bars, restaurants and entertainment venues to renegotiate rent prices with their landlords if they’ve experienced a 40-percent drop in revenue or have limited their capacity by at least 25 percent to safely reopen their doors,” according to the Sacramento Bee.

In plain terms, our Founding Fathers would be horrified. But then again, they never imagined government spending topping 50 percent of the economy either—and that is just where we are headed with the response to COVID-19.

We would do well to remember that one of the main reasons we have a Constitution was the reaction of the post-Revolution politicians to a depression. After the Revolution, the colonies were deeply in debt and taxes were far higher than those imposed by England. Combined with lost trade and private debt, a deep recession ensued.

Debtors were suffering during those bad economic times and politicians came to their rescue by enacting various laws that permitted them to repay their debts in installments, shut down courts to prevent judgments, and printed paper money so that debtors who took out their loans in gold could pay it back with paper of lesser value.

The states were enacting laws at such a fast and furious pace that our founders saw the economic uncertainly and damage the reaction to the crisis was causing to trade across state lines and internationally. Alexander Hamilton thought Americans were “growing tired of an excess of democracy.” Others identified the problem as “a headstrong democracy,” a “prevailing rage of excess democracy,” or “democratical tyranny.”

The solution the founders fashioned, and again, a central reason we have a Constitution, was the famed contract clause. Article 1, Section 10, Clause 1 states: “No State shall . . . coin Money . . . or Law impairing the Obligation of Contracts . . .”

Keep in mind that our founders were often short and blunt with their words. They needed few words to convey that the states wouldn’t change the terms of the existing contracts by “impairing” them.

They enshrined that law in the Constitution precisely because states were passing laws that permitted debtors to get out from their debts, delay payments, or pay their debts with dubious paper money.

Who among us today thinks a state court would cite that history or that language?

As for not allowing church services, it must be said that judges sworn to uphold the Constitution can’t do so by suspending the Constitution. It is also worth remembering that the Revolutionary War was fought amid the deadly smallpox epidemic.

At the time, and to this day, there is no known cure. The mortality rate for those who contracted smallpox was 30 percent overall and 80 percent among children. Nevertheless, the founders fashioned the First Amendment that says, quite bluntly: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”

According to the two liberal judges who backed Newsom’s dubious restrictions on churches, “We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure.” The court opinion, of course, cites no evidence to back its “scientific” conclusion.

Of course, COVID-19 is nowhere near as dangerous as small pox, which was estimated to have killed somewhere between 300 and 500 million people. Such perspective, however, is lost today.

The legendary historian Will Durant once said, “History is an excellent teacher with few pupils.” It appears that many politicians and judges have missed class, too, and we are all the worse for it.

Thomas Del Beccaro is an acclaimed author, speaker, Fox News, Fox Business, and Epoch Times opinion writer, and the former chairman of the California Republican Party. He is the author of the historical perspectives, “The Divided Era” and “The New Conservative Paradigm.”

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

https://www.theepochtimes.com/the-astonishing-shredding-of-the-constitution-by-california-based-judges-and-the-legislature_3366419.html

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