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Contributors
Mark Alexander- Contributor
[Courtesty of The Federalist Patriot]
Mark
Morrison Alexander is Executive Editor and Publisher of The
Federalist Patriot, the Web's "Conservative E-Journal
of Record" and now the
most widely subscribed Internet-based publication. [go
to Alexander index]
 Judicial
Supremacists and the Despotic Branch
The Constitution is whatever judges want it to be...
[Mark Alexander] 3/21/05 |
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"The Constitution...is
a mere thing of wax in the hands of the judiciary which they
may twist and shape into any form they please." --Thomas Jefferson
Our Constitution
suffered some serious setbacks earlier this month. The future
of liberty and the rule of law suffered likewise.
It's bad
enough that Democrat obstructionists are once again denying
President George Bush's federal-bench nominees their constitutionally
prescribed up-or-down vote by the full Senate. In a fine example
of why we need those nominees on the bench, Leftists on the
Supreme Court are, again, "interpreting" the so-called "living
Constitution" as a method of altering that venerable document
by judicial diktat.
Worse yet,
these Left-judiciary Supremacists -- Justice Anthony Kennedy
and Court Jesters Ruth Bader Ginsburg, Stephen Breyer, David
Souter and John Paul Stevens -- cited "national consensus" as
a factor in the recent Roper v. Simmons ruling. In
other words, they disregarded the Constitution's prescription
for federalism and republican government in the name of unmitigated
democracy. Which is to say, while riding roughshod over the
Ninth and Tenth Amendments as they overturned the laws of 19
states, the Supremes blithely pushed the nation one step closer
toward what everyone since Plato has described as governance
in its most degenerative form.
Writing for
the majority, Kennedy claimed that Americans had reached a "national
consensus" against capital punishment for "children," citing
as evidence that only 20 states allow a 17-year-old to be sentenced
to death. Of course, Kennedy's logic is utterly at odds with
decisions such as Roe v. Wade. In that 1973 decision, the Supremes
serendipitously discovered a right to privacy that allowed
for the aborting of children, despite the fact that all 50
states had laws at the time either prohibiting or tightly regulating
abortion. So we must ask you, Justice Kennedy -- what's all
this rubbish about a "national consensus?"
You recall,
of course, that in a recent case, the Supremacists discovered
a clause in the Constitution specifically stating that a 14-year-old
is mature enough to abort the life of her child without parental
consent. Now, in Roper v. Simmons, they've found a
contradictory clause, which avers that a 17-year-old is not
mature enough to be held accountable for capital murder.
Adding grievous
insult to this "national consensus" injury, Kennedy cited "international
consensus" noting "the overwhelming weight of international
opinion" as a factor in the Court's decision. Kennedy referenced
the UN Convention on the Rights of the Child when writing, "The
United States is the only country in the world that continues
to give official sanction to the juvenile death penalty." Here,
his message was all too clear: The High Court is building a
tradition of referring "to the laws of other countries and
to international authorities as instructive for its interpretation" of
the U.S. Constitution.
Sadly, noting
international standards and conventions in rulings seems to
be the latest fashion among the Supremacists.
In 2003,
Justices Ginsburg and Breyer upheld an affirmative-action policy
at the University of Michigan, noting an international treaty
endorsing race-based advancement for minorities. Stevens, for
his part, cited international law in overturning another capital
case: "Within the world community, the...death penalty...is
overwhelmingly disapproved." Furthermore, in Lawrence v. Texas,
Kennedy wrote that the European Court of Human Rights has affirmed
the "rights of homosexual adults to engage in intimate, consensual
conduct."
Justice Sandra
Day O'Connor said recently, "I suspect that over time we will
rely increasingly...on international and foreign courts in
examining domestic issues." Justice Breyer added, "We see all
the time, Justice O'Connor and I, and the others, how the world
really -- it's trite but it's true -- is growing together.
The challenge [will be] whether our Constitution...fits into
the governing documents of other nations."
"How our
Constitution fits?"
Justice Antonin
Scalia, a dependable constitutional constructionist, protested
on behalf of the dissenters that capital punishment should,
rightly in accordance with constitutional federalism, be determined
by individual states. "Because I do not believe that the meaning
of our Eighth Amendment, any more than the meaning of other
provisions of our Constitution, should be determined by the
subjective views of five Members of this Court and like-minded
foreigners, I dissent. ... To invoke alien law when it agrees
with one's own thinking, and ignore it otherwise, is not reasoned
decision-making, but sophistry." Just so.
Perhaps Justice
Scalia recalls this admonition from Founder George Washington: "Against
the insidious wiles of foreign influence...the jealousy of
a free people ought to be constantly awake; since history and
experience prove that foreign influence is one of the most
baneful foes of Republican Government."
Clearly,
international consensus has no standing whatsoever in the constitutional
rule of law in the United States. For that matter, the only
relevant "national consensus" is that prescribed by our Constitution
for its amendment -- a consensus of the people as represented
by three-fourths of the legislatures of the several states.
But such
facts are lost on Left-judicial activists who are content to
legislate from the bench. Just consider this recent comment
from Justice Breyer: "The extent to which the Constitution
is flexible is a function of what provisions you're talking
about." In other words, if he likes it the way it was written,
it stands as is. If not, he interprets it, in the words of
the august Sen. Sam Ervin, "to mean what it would have said
if he, instead of the Founding Fathers, had written it."
Which brings
us to the Senate Judiciary Democrats' filibuster of President
Bush's nominees. Plainly, the Constitution intended that Executive
Branch appointments be subject to confirmation by the full
Senate, and that such consideration not be obstructed by a
handful of wild-eyed Leftists such as Ted Kennedy.
Why are Senate
Democrats so insistent on blocking the President's nominations?
Because they
know the real locus of central government power resides on
the federal bench. Many of President Bush's nominees are constitutional
constructionists, as intended by our Founders -- those who
issue rulings based on the letter of constitutional law rather
than interpret it according to their constituent agenda. Yet
Kennedy and his ilk are bent on denying consideration of these
fine constructionist judges, for they know that the President
will likely advance the names of two such nominees to the Supreme
Court in this term.
As for the
constitutionality of their filibuster, even liberal Georgetown
law professor Susan Low Bloch argues that supermajority requirements
(to overcome the filibuster) for nominations "upset the carefully
crafted rules concerning appointment of both executive officials
and judges and...unilaterally limit the power the Constitution
gives to the President in the appointments process. This [allows]
the Senate to aggrandize its own role and would unconstitutionally
distort the balance of powers established by the Constitution." Clearly,
then, filibuster as a method for obstruction of Senate judicial
confirmations circumvents the Constitution in both letter and
spirit.
That has
prompted Senate Majority Leader Bill Frist to consider what
he calls the "nuclear option" -- change the Senate rules on
such committee obstructions in order to get the President's
nominees before the full Senate for an up or down vote -- as
constitutionally mandated. In fact, it is the Democrats who
have exercised the "nuclear option" by circumventing the Constitution!
So what does
the Constitution actually prescribe with regard to federalism
and the conduct of federal judges, including the Supremes?
The Federalist
Papers constitute the definitive explication of our national
Constitution. In Federalist No. 32 Alexander Hamilton writes, "[T]here
is not a syllable in the [Constitution] which directly empowers
the national courts to construe the laws according to the spirit
of the Constitution, or which gives them any greater latitude
in this respect than may be claimed by the courts of every
State." On the subject of federalism, he wrote in No. 81 "...the
plan of the [Constitutional] convention aims only at a partial
union or consolidation, the State governments would clearly
retain all the rights of sovereignty which they before had,
and which were not, by that act, exclusively delegated to the
United States."
In Federalist
No. 45, the author of our Constitution, James Madison, notes: "The
powers delegated by the proposed Constitution to the federal
government are few and defined. Those which are to remain in
the State governments are numerous and indefinite. The former
will be exercised principally on external objects, as war,
peace, negotiation and foreign commerce. ... The powers reserved
to the several States will extend to all the objects which
in the ordinary course of affairs, concern the lives and liberties,
and properties of the people, and the internal order, improvement
and prosperity of the State."
Madison's
outline notwithstanding, the scope of activities of the legislative
and judicial branches today hardly resemble the limits of our
Constitution -- yet nothing in its amendments allows that scope.
Concerned
for the potential tyranny of the judiciary, Thomas Jefferson
warned: "The opinion which gives to the judges the right to
decide what laws are constitutional and what not, not only
for themselves in their own sphere of action but for the Legislature
and Executive also in their spheres, would make the Judiciary
a despotic branch. ... The Constitution on this hypothesis
is a mere thing of wax in the hands of the judiciary, which
they may twist and shape into any form they please. ... It
has long, however, been my opinion, and I have never shrunk
from its expression...that the germ of dissolution of our federal
government is in the constitution of the federal Judiciary;
working like gravity by night and by day, gaining a little
today and a little tomorrow, and advancing its noiseless step
like a thief, over the field of jurisdiction, until all shall
be usurped."
Jefferson
continued: "At the establishment of our constitutions, the
judiciary bodies were supposed to be the most helpless and
harmless members of the government. 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."
Some 200
years later, they are as dangerous as ever. Notes Justice Scalia, "As
long as judges tinker with the Constitution to 'do what the
people want,' instead of what the document actually commands,
politicians who pick and confirm new federal judges will naturally
want only those who agree with them politically."
The time
is long overdue for Congress to make amends for failing to
check the unbalanced and growing powers being arrogated by
these judicial tyrants -- and altering the Senate rules is
a good start. But our current circumstances are worse than
nearly all analysts are admitting. Not only should these moderate-conservative
Bush judicial nominees be seated, but those judges who are
in violation of their oaths of office should be unseated by
impeachment.
However,
as Jefferson noted long ago, "We have...[required] a vote of
two-thirds in one of the Houses for removing a judge; a vote
so impossible where any defense is made before men of ordinary
prejudices and passions, that our judges are effectually independent
of the nation. ... For experience has already shown that the
impeachment it has provided is not even a scare-crow."
And a final
memo to activist judges and their congressional puppeteers:
American military personnel have been wounded and killed in
great numbers upholding their oath to "Support and defend the
Constitution of the United States...," not your interpretation
of the Constitution. You have sworn to do the same.
Perhaps it
is time to remove judges who do not "faithfully discharge the
duties of the office" upon which they have entered. tOR
copyright
2005 Federalist Patriot
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