Our Court's Modern Dred Scott Decision

Five members of the unelected politburo that is our Supreme Court have created a new Constitutional right out of thin air - the right of homosexual to marry, in today's 5-4 decision in Obergefell v. Hodges. In so holding, they give their newly preferred policy decision a bare patina of bull shit legalese. But at the same time, they don't even try to hide the fact that this was a pure policy decision.

I won't bother to recount from the majority decision that claims justification under the Equal Protection clause and substantive due process, then pats themselves on the back for effecting social change not supported by the people of this nation. Their arrogance is beyond stomaching. Let's go to the dissents. Ironically, the dissent from CJ Roberts, infamous for his decisions in Obamacare, is directly on point:

Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing “formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.”

Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description — and dismissal — of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. Ante, at 9, 10, 23. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” Ante, at 19. The answer is surely there in one of those amicus briefs or studies.

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” . . .

By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.

Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority — actually spelled out in the Constitution.

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. . . There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today. . . .

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

This decision will make the controversy set off by Roe v. Wade seem like the smallest of ant hills. It will be used by the left to punish the religious and further drive religion from all aspects of public life. It may well set this nation on a path to insurrection, much like the Dred Scott was a trigger for the Civil War and much like the punitive laws stipping the colonists of their rights set this nation on a path to Revolution. The five members of the Supreme Court who decided this case will no doubt be toasted around D.C. tonight and go to sleep quite happy with themselves. They will, I think, have a lot of blood on their hands before this one ends.

As I wrote below, our Court system needs to root and branch reform. As Chief Justice Roberts correctly notes, our Founders could not possibly imagine the role the activist judiciary has taken upon itself.

Update: After composing the above, I see that Mike Huckabee has come to the same conclusions. That said, I prefer the way he styles this as judicial tyranny. This from Hot Air:

“The Supreme Court has spoken with a very divided voice on something only the Supreme Being can do-redefine marriage. I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat.

“This ruling is not about marriage equality, it’s about marriage redefinition. This irrational, unconstitutional rejection of the expressed will of the people in over 30 states will prove to be one of the court’s most disastrous decisions, and they have had many. The only outcome worse than this flawed, failed decision would be for the President and Congress, two co-equal branches of government, to surrender in the face of this out-of-control act of unconstitutional, judicial tyranny.”

“The Supreme Court can no more repeal the laws of nature and nature’s God on marriage than it can the laws of gravity. Under our Constitution, the court cannot write a law, even though some cowardly politicians will wave the white flag and accept it without realizing that they are failing their sworn duty to reject abuses from the court. If accepted by Congress and this President, this decision will be a serious blow to religious liberty, which is the heart of the First Amendment.”

Bobby Jindal has a similar take.

Bookworm has some very cogent thoughts on the importance of this decision and how the left will try to use it:

This ruling may be the most consequential ruling ever to issue from the Supreme Court. Why? Because the Left will use it to destroy all religions except Islam (which they’re afraid to touch). They’ll use a magical new right to destroy one of the bedrock First Amendment rights.

Do read her entire insightful post.

And how did I miss Justice Scalia's dissent:

. . . [I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. . . .

. . . It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):

“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”

“[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”

But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ” One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.” Thus, rather than focusing on the People’s understanding of “liberty” — at the time of ratification or even today — the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.

This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

. . . [T]o allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

But what really astounds is the hubris reflected in today’s judicial Putsch. . . . They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

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Scalia On Originalism & Activism

Although the election Tuesday is incredibly important, it is the Supreme Court that has had the longest lasting and most deleterious effect on our nation. Justice Scalia explains the problem - and at the start of this interview, the very simple solution.



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Scalia & Oral Argument On Obamacare

So will the Supreme Court uphold or strike down Obamacare in whole or in part? It's impossible to project, and I won't try. I will simply note that if they do uphold it, they will be expanding the power of the federal government to the point that it would have the power to force each and every person who participated in the Boston Tea Party to buy East India Trading Company tea. Somehow, I don't think that was within the intent of our Founders when they drafted our Constitution. Our nation will be changed fundamentally.

But all of that said, the Supreme Court arguments were wholly worthwhile if for nothing else than listening to Justice Scalia questioning the Obama administration advocate on why the Obamacare mandate is outside the Constitution and prior Supreme Court precedent.  Do enjoy this.



(H/T Hot Air)

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21st Century Radical Secularism Meets Jefferson Meets Scalia (Part II)

This is Part II of a three part post.

Part I identifies the intent of the drafters in writing the First Amendment's Free Exercise of Religion clause and explains why the Obama HHS mandate is unconstitutional in consideration thereof.

This Part II deals with how the Supreme Court, and particularly Justice Scalia, have strayed from the original intent of the Free Exercise clause, but would still find the HHS Mandate unconstitutional.

Part III will deal with how the founders did not forsee or account for the rise of radical secularism, which is a religion unto itself, and how that impacts the Free Exercise clause.

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Part II Summary

Under current federal law (the Religious Freedom Restoration Act - RFRA), the federal government would stand next to no chance of winning in a suit brought over the Obama HHS mandate as applied to Catholic institutions.  But RFRA - a Congressional power grab on the issue of Constitutional interpretation - is likely itself to be found unconstitutional as applied to the federal government.

If RFRA doesn't apply, then Justice Scalia's 1990 interpretation of the Free Exercise clause, one that severely circumscribes the scope of the clause, would mean that the Obama HHS mandate is lawful.  But Scalia admits in his opinion that he wrote his bright line rule to cut off litigation from minor religions that have sprung up after the signing of our Constitution.  Scalia, like Jefferson before him, implicitly assumes that the government would not encroach on core, mainstream religious beliefs extant at the time of the adoption of the Bill of Rights.  Thus, a case brought today under the HHS mandate would most likely result in a complete reexamination of the original intent of the drafters in passing the Free Exercise of Religion clause.  And if that happens, then the Court would likely find that the HHS mandate is unconstitutional.      

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Part II Discussion:

The First Amendment to the Constitution provides, in relevant part, that "Congress shall make no law . . . prohibiting the free exercise" of religion. As explained in Part I, the original intent of the drafters of this provision, as identified in the 1878 case of Reynolds v. United States, was to keep government from legislating in the area of then extant mainstream religious beliefs, but to allow the government to legislate against acts done under the color of religion that threaten societal order and duties.

As the scope of government has grown over the past near two and a half centuries, and as both minor religious offshoots, such as Jehovah's Witnesses, have proliferated and as people have become inventive in trying to make use of the Free Exercise clause, the Supreme Court has done a significant number of Free Exercise cases.  The Free Exercise clause was used to challenge everything from payment of income taxes, payment of SSI taxes, minimum wage laws, and the draft to name but a very few.  Prior to 1990, the Court had developed "Sherbert" test for Free Exercise cases that it applied on an ad hoc basis.  "Under the Sherbert test, governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest."

That changed in 1990, when Justice Scalia authored the opinion in Employment Division, Dept. of H.R., Oregon v. Smith, a case involving native Americans who claimed the right to use peyote as part of their religious services.  The plaintiff's argued that Sherbert should be applied to their case. Scalia, whose love of originalism exists in conflict with his love of bright line rules, held that the Sherbert test would henceforth be limited to employment compensation matters.  His concern was that the Sherbert test, if generally applied, would produce "a private right to ignore generally applicable laws:"  He as much as admits at the conclusion of his opinion that his goal was to cut off litigation arising out of claims outside the mainstream of religious beliefs, in essence assuming, as did Jefferson two centuries previously, that the Free Exercise clause would protect mainstream religious beliefs because government would never encroach upon them:

It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

Ultimately, Scalia adopted the brightest line of all -  that a case could not succeed solely on Free Exercise grounds unless the government act at issue was directed explicitly at religion.  The problem with Scalia's solution is that it went too far - and his assumption was wrong.  His reshaping of the law now allows the government, as Obama has done, to encroach on what Jefferson called "the rights of conscience" of mainstream religion that the Free Exercise clause was designed to protect.  It disadvantages all ancient religious practices, not merely those that "are not widely engaged in."

Congress reacted, passing the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq.  Under RFRA,  laws interfering with free exercise of religion under would have to be supported by a compelling state interest and be the least restrictive of religious freedom as possible.  The Supreme Court would later, in City of Boerne v. Flores, declare RFRA to be unconstitutional as applied to the states because it exceeded the bounds of Congressional authority.  The decision was based on whether the Supreme Court or Congress has ultimate authority to interpret the Constitution.  Yet because the Boerne Court did not address whether RFRA still stands as to federal law, it remains today as the law limiting federal government action.  As NRO points out, the practical effect of the RFRA two prong test would be to make it next to impossible for the U.S. government to succeed in a case over the Obama HHS mandate. 

So here's what all of this boils down to.  In a case over whether the Obama HHS mandate can be lawfully applied to force Catholic institutions to fund contraception and the morning after abortion pill, the Court would have two major questions to answer.  One, whether RFRA is unconstitutional as applied to the federal government.  I think that likely.  Which would then raise the second question, whether the bright line test in Smith applies in a situation where it is not minor religious practices that "are not widely engaged in" at issue, but the ancient, mainstream and core issue of Catholic beliefs as to contraception and sanctity of life.  I cannot seeing the Court doing that, as it would mean truly gutting the Free Exercise clause.  

And that last will cause some amazing linguistic contortions in the Court.  For our nation, at its inception, was a Christian nation that made room for all within its ambit, subject only to restrictions that define the outer edges of what was acceptable to such a Christian nation.  Indeed, that was the whole basis for the decision in the first Free Exercise case heard by the Supreme Court, Reynolds, which I addressed in Part I here.  That is decidedly not politically correct to admit after six decades of radical left wing efforts to remove Christianity wholly from our laws and the public square.  How the Court might modify Smith without admitting to all the rest would be interesting to see indeed.

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21st Century Radical Secularism Meets Jefferson Meets Scalia (Part I)

This is Part I of a three part post. This part deals with the intent of the drafters in writing the First Amendment's Free Exercise of Religion clause and why the Obama HHS mandate is unconstitutional in consideration thereof.

Part II, here, deals with how the Supreme Court, and particularly Justice Scalia, have strayed from the original intent of the Free Exercise clause, but would still find the HHS Mandate unconstitutional.

Part III will deal with how the founders did not forsee or account for the rise of radical secularism, which is a religion unto itself, and how that impacts the Free Exercise clause.

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Part I Summary

The Obama HHS mandate would force Catholic institutions to fund healthcare plans that directly violate the most sacred and core belief of the Catholic faith, sanctity of life. The mandate would force Catholic institutions to provide for contraception, sterilization, and Plan-B abortion, or in the alternative, be penalized or voluntarily dissolve. Such an act violates the Free Exercise clause of the First Amendment as it was intended to be interpreted by our Founders.

The original intent of the drafters, as explained by Thomas Jefferson, was to draw a big circle around then extant mainstream religious beliefs and put those beyond the scope of government legislation. Under the Free Exercise Clause, the government could only legislate to stop an affirmative action done under the color of religion that threatened the social order. Catholic opposition to abortion and contraception was an openly held belief at the time, and thus fall within the ambit of the Free Exercise clause's protections.

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Part I Discussion:

The First Amendment to the Constitution provides, in relevant part, that "Congress shall make no law . . . prohibiting the free exercise" of religion. It was over a hundred years from the signing of the Constitution that the Supreme Court was first called on to interpret the Free Exercise Clause in the 1878 case of Reynolds v. United States. In that case, a Mormon criminally charged with polygamy argued that he was only acting in accord with the precepts of his religion. The Court looked back to the drafters to find how they interpreted the "Free Exercise" clause:

[In a bill] 'for establishing religious freedom,' drafted by [Thomas} Jefferson, . . . religious freedom is defined; and after a recital 'that to suffer the civil magistrate to intrude his powers into the field of [religious beliefs and principles], and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,' it is declared 'that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.' In these two sentences is found the true distinction between what properly belongs to the church and what to the State.

. . . Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association, took occasion to say: 'Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,-I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.'

Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere [religious beliefs], but was left free to reach actions which were in violation of social duties or subversive of good order.

(emphasis added, citations omitted)

The Reynolds Court found that at the time of the drafting of the Constitution, all sects of the Christian faith in Europe and America had, since ancient times, practiced monogamy and had outlawed polygamy. It wan't until the Mormon faith was created in 1830 and preached polygamy as one of its tenets that polygamy in the U.S. became an issue. The Court further found that polygamy was universally held to be criminal in the 13 states at the time that the Constitution was signed.

Thus the Court found that the Constitutional prohibition against free exercise of religion did not contemplate polygamy as within its ambit. The Court, describing polygamy as "odious" to the religious traditions protected by the Constitution, and further finding it to be an "act" that threatened the social order, the Court held that polygamy could be prohibited by the state.

Also implicit in the Court's decision was that the Free Exercise clause protected mainstream Christian and Judaism and their religious doctrines extant in the U.S. at the time the Constitution was signed. Other religious beliefs and or religious beliefs claimed thereafter, to the extent that they conflicted with "peace and good order" and "societal duties," could not claim the protections of the Free Exercise clause. To this point, the Court said:

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

Today's Christian and Catholic Church doctrines on abortion and contraception are the same as they were at the time of the signing of the Constitution. As to contraception, "the Catholic Church has been opposed to contraception for as far back as one can historically trace." Likewise, there is no question that issues of sanctity of life and the view of abortion as a sin were part of Christianity virtually from its founding.:

There was universal condemnation of abortion in the early Church. The practice was roundly condemned in early Christian writings including the Didache and the writings of Clement of Alexandria, Ambrose, Jerome, John Chrysostom, and Augustine.

David Braine in his study concludes that:

For the whole of Christian history until appreciably after 1900 . . . there was virtually complete unanimity amongst Christians, evangelical, catholic, orthodox, that, unless, at the direct command of God, it was in all cases wrong directly to take innocent human life.

So looking at this from the standpoint of an originalist, there appears little doubt that the decision of the Obama administration to force Catholic institutions to fund contraceptives and Plan B abortion, or in the alternative to be penalized or choose to dissolve, violates the 1st Amendment's clause on the Free Exercise of Religion. The Catholic Church beliefs on contraception and abortion were core beliefs at the time of the signing of the Constitution. The Church has taken no affirmative "act," and as Jefferson points out, the limitation of the government to prohibit the free exercise of religion was meant to vindicate "the rights of conscience." It is hard to see how attacking a core value of the Church could be categorized as anything other than an attack on the conscience. Moreover, as Jefferson made clear, he saw the Free Exercise clause as being in perfect balance with the then extant religions at the time the Constitution was signed, commenting that he saw "no natural right in opposition to his social duties." Today, the natural rights remain unchanged, it is only government imposition of new "societal duties" that unconstitutionally encroach on Jefferson's - and the Catholic Church's - natural rights.

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Judicial Activism & The Next Supreme Court

The activist wing of the Supreme Court, that wing associated with the "living Constitution" theory and internationalism, has shown their true colors. The case of Kennedy v. Louisiana was a decision by the five activists on the Court holding that capital punishment could not be constitutionally imposed for child rape. Faced with evidence that the legal justification underlying their policy decision was demonstrably wrong, the activists have refused to revisit their decision. This is proof that they are legislating their policy preferences from the bench and only thereafter attempting to justify their decision with a bare patina of legal reasoning.
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I have posted previously on judicial activism and the fundamental danger it presents to our country. The term "judicial activism" refers to unelected judges who disregard the intent of the founders, twist precedent and ignore the limited powers of the court to make law of their own policy preferences. Three years ago, activists extinguished our 5th Amendment protection against government taking our private property and transferring it to another private party. A few months ago, activists crafted a vast expanion of Court powers to oversee decisions of national security and war. We have seen activists come within one vote of gutting the Second Amendment. And those are only a few of the activist decisions over the past few years. None of those decisions could be justified on original intent of the founders, nor could they be justified on precedent. Instead, these were policy decisions founded on faulty reasoning, twisting of precedent, and, under the relatively recent activist theory of internationalism, cherry-picking of precedent and laws from foreign jurisdictions.

If more proof of that were needed, it could not be clearer than in the case of Kennedy v. Louisiana, the recent Supreme Court case holding capital punishment for child rapists unconstitutional. I critiqued in a post here the legal reasoning of the activist wing of the Court in Kennedy. The foundation of the Court's reasoning was:

[T]he Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.” Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that “currently prevail.” The [8th] Amendment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society."

The activists then cast about for cases and facts that would support their policy preference. They held that a "consensus" existed at law that capital punishment should not be imposed on child rapists. Shortly after the Court announced the decision, a gaping hole in the activists' reasoning was brought to their attention. Congress had passed a law in 2006 applying to the military that allowed execution for child rape.

That law directly undercut the reasoning by which the activists on the Court reached their decision. If the activists were really engaged in anything other than announcing their policy preferences as Constitutional law, then they would have reopened the case and decided it anew. Instead, today, the five activisits on the Court who formed the majority in Kennedy voted to deny a rehearing. This was the reaction from Justice Scalia:

"The views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down" to its own judgment that the death penalty is too severe a punishment for a crime that does not result in death. . . . Of course, the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.'"

If you like judicial activism, you'll love a President Obama. Given his opposition to both Judges Alito and Roberts as well as his devotion to radical philosophy, you could expect him to nominate judges who would rip Constituional law from its Constitutional moorings and move it into a whole new direction. It would be activism on steroids. This is a post from a few weeks ago by Power Line, speculating on likely Supreme Court nominees by a President Obama:

Over at Bench Memos, our friend Ed Whelan has started a series in which he considers some of the individuals who have been mentioned as prospective nominees to the Surpeme Court, should Barack Obama be elected. Ed begins with Harold Koh, dean of Yale law school.

Koh is a self-described "judicial transnationalist." Here is how Koh explains this philosophy:

[The transnationalist] tends to follow an approach suggested by Justice Blackmun in the late 1980s: that U.S. courts must look beyond national interest to the “mutual interests of all nations in a smoothly functioning international legal regime” and must “consider if there is a course that furthers, rather than impedes, the development of an ordered international system.”

Generally speaking, the transnationalists tend to emphasize the interdependence between the United States and the rest of the world, while the nationalists tend instead to focus more on preserving American autonomy. The transnationalists believe in and promote the blending of international and domestic law; while nationalists continue to maintain a rigid separation of domestic from foreign law. The transnationalists view domestic courts as having a critical role to play in domesticating international law into U.S. law, while nationalists argue instead that only the political branches can internalize international law. The transnationalists believe that U.S. courts can and should use their interpretive powers to promote the development of a global legal system, while the nationalists tend to claim that U.S. courts should limit their attention to the development of a national system.

Ed notes that, true to his transnationalist philosophy, Koh filed an amicus brief in Lawrence v. Texas arguing that international and foreign court decisions compelled the Supreme Court to strike down Texas’s ban on homosexual sodomy. And he submitted an amicus brief (to the Connecticut supreme court) arguing that comparative precedents from foreign countries require recognition of a constitutional right to same-sex marriage.

Read the entire post. Actually, of all the damage a President Obama could do to our country, it is in the choices he will make regarding Supreme Court nominees that he could do the most fundamental mischief.

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The Supreme Court: Originalism, Activism, and America’s Future

There are two broad schools of Constitutional interpretation today – originalism and the "living constitution" theory. The latter is pure judicial activism dressed in a bare patina of Constitutional justification. In the last week, we have been treated to the best – an originalist Second Amendment decision - and worst – an activist habeas corpus decision - of the Supreme Court by Judges applying those two schools of thought.

Originalists attempt to interpret the Constitution by determining what the people who drafted it and voted for it understood it to mean at the time. An intellectually honest originalist does not announce new policy, he or she interprets history and precedent. That is a bit oversimplified - originalism is certainly not always that clean and can become muddled as precedent builds (and see the discussion here). But because there is always a strong bias to stay limited to what the Constitution says and what the drafters meant, it provides a carefully circumscribed role for unelected judges, thus paying the maximum deference to democracy.

When a Court stops interpreting the meaning of the Constitution and starts to impose its own policy views under the color of a "living constitution," it transforms into a Politburo legislating by fiat. Judicial activists and the left who champions them are the people who see an activist Court as a way around democracy and an irreplacable tool to remake society.

The Goracle did a good job of describing the "living Constitution" theory in his 2000 election campaign, as well as demonstating the left's total embrace of judicial activism:

I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.

That is scary. That is pure judicial activism of the type which:

- came within one vote yesterday of allowing the government the power to disarm all Americans - and will no doubt, if given the chance to gain a majority, so narrow the right as to render it meaningless

- now allows government to take your private property and give it to another private party for their own purpose, even though the plain language of the 5th Amendment clearly forbids it as unconstitutional.

- now holds that modern foreign law can be used to interpret the U.S. Constitution, thus allowing our modern activists to arrive at any policy decision they so desire and then to turn it into Constitutional law, irrespective of how far removed it may be from the original meaning of the Constitution.

- in a vast expansion of the power of the Court, and in what may turn out to be the most costly decision ever to our nation, the activist wing of the Supreme Court twisted precedent out of recognition to arrive at a decision that has inserted the Judicial Branch into the national security and defense roles of our President and Congress. The activist wing of the Supreme Court has taken for itself powers clearly authorized only to the other branches by the plain language of the Constitution. As law professor Kenneth Anderson, cogently opined, "the Court seems to be marking out a long-term trajectory of forcing a reconception of war, even combat, as a form of police work."

- have greatly limited the use of the death penalty, irrespective of the intent of the founders, in how the states can apply it and by what method. While some of these restrictions are valid as a means of insuring due process, others are examples of pure policy decisions / Constitutional legislation by the Court.

- have created numerous rights out of whole cloth, taking social policy, such as whether to allow abortions and under what circumstance, out of the hands of the people and the states and making Constitutional law of their personal policy preferences. (Note here that originalists hold questions such as abortion to be outside the text of the Constitution and thus wholly states rights issues, beyond the scope of the Supreme Court's jurisdiction and beyond the competence of the federal government to regulate.)

- have read into the anti-establishment clause a "wall between church and state" and used that theory to dismember any hint of religion in the pubic square, thus promoting, whether intentionally or in the breech, the religion of the left - radical secularism.

There is no greater internal threat to our nation than an activist Supreme Court acting without respect for democracy and unconstrained by the original intent of the founders. Two very recent examples show the different methods used by originalists and activists respectively and serve as textbook examples of these philosophies in action.

The recent decision of Kennedy vLouisiana, written by Justice Kennedy and decided in a 5-4 decision, is an example of the judicial activism that has run rampant over the past sixty years in respect to the death penalty. The case interpreted whether a death sentence imposed for an incredibly brutal rape of a young child was Constitutional under the Eighth Amendment. That Amendment holds: "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Nearly the first words in Justice Kennedy’s opinion were to quote a 1958 Supreme Court case that was a part of the great move towards judicial activism [citations removed for ease of reading]:

. . . [T]he Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.” Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that “currently prevail.” The [8th] Amendment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society."

Suffice it to say, it was almost two centuries after the founding of the country that an activist wing of the Supreme Court decided to unglue the 8th Amendment from its original meaning and move it into the realm of judge-made policy cast as Constitutional law. Who determines what the "standards of decency" should be and what "norms" currently prevail? Shouldn't it be the people of Louisiana, acting throught their democratically elected legislature, who decide what is appropriate - at least so long as they do not violate the original meaning of the 8th Amendment? Or should it be the role of the unlected and unaccountable left wing of the Supreme Court to magically devine these "norms" and "evolving standards" for Louisiana based on whatever select data they choose to justify their decision? That data certainly isin't the national polls on the topic of imposing the death penalty for child rape. As the Jim Lindrgen wrote at the Volokh Conspiracy, after examining polls taken on the topic:

If the American public has a “national consensus” about child rape, it is that the death penalty is appropriate and that the courts are too lenient in punishing first-time offenders. But that’s not the sort of national consensus that Justice Anthony Kennedy wants to follow.

And indeed, the Supreme Court in Kennedy found an alternate consensus which, as explained by Justice Alito in his dissent, hardly qualified for the proposition which the activists used it. Regardless, the activists struck down Louisian's law as violative of their current policy preferences - or as those preferences are now known, Constitutional law.

To those who would argue that we should not be stuck in Revolutionary era concrete, please note that our Founders allowed for that by providing methods for amending the Constitution. The methods listed in the Constitution are democratic. We certainly can amend the 8th Amendment to limit the scope of what is "cruel and unusual" to a democratically accepted norm in the 21st century. But having 5 of 9 unelected judges impose those changes based on their whim and under the label of the "living Constituion" is not one of the methods you will find enumerated in the Constitution.

Compare this to Justice Scalia’s opinion in Heller v. District of Columbia, a primer in Constitutional interpretation by an originalist. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Scalia begins with an examination of how the language of the Second Amendment would have been defined and understood at the time the Amendment was drafted.

Scalia notes that the term "the people" is used throughout the Bill of Rights to provide rights to individuals. To interpret "keep and bear arms," he uses dictionaries from the Colonial period and refers to that era's seminal treatise on British law, William Blackstone’s 1769 Commentaries on the Laws of England. Scalia then looked to the history of the Second Amendment, finding it did not create a new right out of whole cloth, but rather protected a preexisting right inherited from well established British law of the period. That law, blogged here, provided an individual right to bear arms for self defense and a defense against the tyrannical acts of government. Using a similar inquiry for the prefatory clause, he finds that the term "militia" meant, in 1789, all able-bodied men and that the term "free State" was a term of art in the period that could refer to a State or to individuals in a state.

Scalia also looked to the various treatises and case law in the years following ratification to see how the Amendment was interpreted, including what limits were recognized upon the right. And he finishes with this thought:

Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an "interest-balancing" approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

There really is a war going on in America. It is a war between those who wish to preserve the society created by our founders, one based on capitalism, federalism, certain individual rights and a respect for religion versus those on the left, espousing views of socialism and secularlism who want to radically remake society to accord with their own views. There is nothing wrong with that so long as the fight takes place at the ballot box. The problem is that a centerpiece of the left's efforts is to use activist courts to circumvent democracy.

The next President will choose at least one and as many as four Supreme Court justices. He will remake the Court for the next several decades. And if that Court is activist, God help America, for America will come to the end of those decades bearing little resemblance to the nation we created in 1776, nor for that matter the world's most successful nation that existed at our bi-centennial.

Update: An extremely important point is made by David Bernstein writing at the Volokh Conspiracy, that I neglected to include above. Any suggestion that the practitioners of judicial activism are the protectors of our civil rights as against government encroachment is a pure fairy tale. Judicial activists regulalry expand the power of government as against the individual, unless of course it is some new right that fits within the modern socialist pantheon. As Mr. Bernstein writes:

The Supreme Court's decision in District of Columbia v. Heller, upholding the Second Amendment right of individuals to own firearms, should finally lay to rest the widespread myth that the defining difference between liberal and conservative justices is that the former support "individual rights" and "civil liberties," while the latter routinely defer to government assertions of authority. The Heller dissent presents the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides. Or perhaps it's not as remarkable as we've been led to think.

And related to that is this observation from Hot Air that I must admit I missed in reading the Heller opinon - I plead brain death by the time I got towards the end of Steven's dissent. At any rate, it is Stevens, just unbelievably trying to cast the Bill of Rights as an enabler of government control rather than a brake on it:

The quote of the day comes not from Scalia but from Stevens in dissent:

The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice—the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.

Yeah, that’s … the whole scheme of the Constitution, isn’t it? To limit the power of government? Or does that principle only apply to Article II anymore?

That really is a Freudian slip of epic proportions by an activist Supreme Court justice more concerned with his policies and government control than the individual rights of Americans. Any elementary school child can likely tell you that the Bill of Rights enumerates individual rights safe against government transgression. Enumerated powers of government appear elsewhere in the Constitution - unless, as Stevens makes clear, an activist judge has a policy preference in conflict. These people really are a clear and present danger to democracy and our nation.

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A Constitutional Lesson In British History

In a post below, responding to a post by Dr. David Abbott at Brits At Their Best, I added my agreement to his assertion that the British have forgotten - or as I see it, have been taught to devalue - their history. In either case, both roads lead to the current circumstance, where the British have passively acceded over time to giving up the freedoms and liberties hard earned by their progenitors. One of the freedoms the British people held for centuries was an individual right to own and bear guns. That right has been extinguished over the past century. This is at variance with America, yet we both started from precisely the same place in 1776. In the U.S. Supreme Court's decision yesterday in Heller v. District of Columbia, Justice Scalia explained the British history of this right to bear arms.
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This from Justice Scalia's opinion in Heller [citations removed for ease of reading]:

. . . Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” This right has long been understood to be the predecessor to our Second Amendment. It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. But it was secured to them as individuals, according to “libertarian political principles,” not as members of a fighting force.

By the time of the founding [i.e., the drafting of the U.S. Constitution in 1789], the right to have arms had become fundamental for English subjects. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and selfpreservation,” and “the right of having and using arms for self-preservation and defence.” Other contemporary authorities concurred. Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. . . .

While the British wrote down the right of individuals to bear arms as against the Crown in the 1689 Bill of Rights, they wrote down no limitation on Parliament circumscribing Parliament's ability to extinguish their rights. Thus Britain lives under a tyranny of sorts today. Without any recognized Constitution, and with Parliament over a century ago having claimed for itself unlimited sovereignty, there are no permanent rights in Britain. Thus today you have in Britian a populace that has not only been largely disarmed of firearms over the past century, but a populace wherein the law abiding among them are prevented from carrying any sort of weapon for self defense. Even carrying the innocuous pepper spray is illegal.

And then of course there is the penultimate tyrannical act. In what amounts to a coup, the current Labour government has broken its promise to the people of Britain, given but three years ago, to give the people a vote in the decision to extinguish the sovereignty of Britain and become a province in a socialist and anti-democratic EU superstate. By this act, and in the even larger sense that this transfer of sovereignty severly and forever more degrades the democratic right of the British to choose their government, Labour evinces utter disdain for the liberty of Britian's citizens. And with that in mind, there is at least one more passage highly apropos from Justice Scalia's decision:

St. George Tucker’s version of Blackstone’s Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the Second Amendment. See 2 Tucker’s Blackstone 143. In Note D, entitled, “View of the Constitution of the United States,” Tucker elaborated on the Second Amendment: “This may be considered as the true palladium of liberty . . . . The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” . . .

I think the appropriate phrase to finish on is the truism, "those who do not remember history are doomed to repeat it."

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The Second Amendment (Updated)

The case of District of Columbia v. Heller has been decided by the Supreme Court in a bare 5 to 4 decision with a majority opinion authored by Justice Scalia. The opinion is seminal in establishing that the Second Amendment provides Americans with an individual right to keep and bear arms, leaving open for future cases the outer contours of the right. The holdings of the opinion are:
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1. The right to keep and bear arms is an individual right related to the right of self defense.

2. The right protects against any absolute prohibition of handguns held and used for self-defense in the home.

3. The right protects against any law that would require a lawfully owned firearm to be rendered unfireable in the home, or otherwise not immediately firable for self defense.

4. The right protected by the Second Amendment is the right to keep and bear arms that were “in common use at the time” of the Second Amendment's passage. The Court interprets this to mean there can be limitations imposed on possession of modern advanced weaponry and does nothing to disturb the holding in the 1939 case of Miller v. that upheld federal law restricting possession of classes of weapons, such as automatic weapons and sawed off shotguns.

5. Prohibitions on carrying concealed weapons are lawful.

6. This case leaves open the door for federal regulation of guns in certain aspects. Quote: "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

[Update - should have included this: 7. The Court makes clear that licensure and registration requirements are acceptable so long as they do not otherwise infringe on the right to keep and bear arms.]

8. The critical issue of whether states must respect the Second Amendment is still an open issue. The Heller Case involved the District of Columbia - an area subject to federal law and without the rights of a state. The Bill of Rights protects against federal law encroachment on rights enumerated in the Bill of Rights, but at the time it was written did not clearly apply stop state law encroachment on the same rights. It wasn't until passage of the Fourteenth Amendment after the Civil War that at least some of the rights enumerated in the Bill of Rights were held to apply equally to limit state interference. The relevant part of the 14th Amendment is the "privleges and immunities" clause:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

U.S. Const., 14th Am., Sec. 1.

This clause has been held at various time to "incorporate" protections against fedral law encroachment articulated in the Bill of Rights against similar state law encroachment. You can find a good discussion of this legal issue here.

The Court in Heller does not decide whether the Second Amendment limitation against federal infringement of the right to individually keep and bear arms similarly limits the right of a state to do so. The Court intimates that it will. As the explained at the Volokh Conspiracy:

The majority doesn't clearly signal its view on the question, but it does suggest that simply citing some late 1800s cases which rejected incorporation (at a time when incorporation was generally being rejected as to nearly all of the Bill of Rights) will not suffice. Here's footnote 23, on page 48 of the majority oinion:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Cruikshank's judgment that the First Amendment wasn't incorporated was of course reversed by "later cases" starting in the 1920s.

Read the entire post.

A final parting thought. How much in danger are our rights from an activist Court? But for one vote, the right of an individual to keep and bear arms could have been taken away from us. By the skin on our collective teeth, we dodged that bullet today. But we are in every bit as much danger from an activist court as we are from external enemies.

Update: The very first rabid Moonbat siting was by Confederate Yankee:

. . . within moments [of the decision], a commenter to the liberal blog Crooks and Liars said Justice Antonin Scalia, who wrote the majority decision on the case, should be murdered. . . .

Update: As noted by a sharp-eyed "Jabba the Tutt" in the comments, this is the same David Ehrenstein that created the meme of Barack the Magic Negro.

The NYT carries a story on the reaction of gun control advocates:

Gun-control advocates across the country reacted with shock and outrage at the Supreme Court’s decision to strike down the District of Columbia’s ban on handguns today, saying the ruling would threaten gun-control measures in other states. . . .

Read the entire article. Shock and outrage? Whether the Second Amendment was written so as to provide an individual right to gun ownership is not a policy decision to be made by an unelected supra-legislature of activists. The mindset of the left is a clear and present danger to the continued freedoms of this country and our viability as a nation.

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Boumediene - Judicial Overreach By The Activist Wing Of The Supreme Court

The activist wing of the Supreme Court, with their 5-4 decision in Boumediene v. Bush has just done incredible damage to our nation. Never before in history has ours or any other nation treated foreign combatants in wartime to extensive legal protection the same as if they were a citizen of that country being held on criminal charges. The Supreme Court today has grossly overstepped the Constitutional limits placed on the third branch of government. They have made the judiciary at least partial arbiters of our national security, they have made it far more difficult to take and hold combatants captured on foreign battlefields, and they have made it far more difficult to maintain our national security secrets.

The Boumediene case (see decision here) was brought by several detainees at Guantanamo Bay asking that the Supreme Court grant them a right to file a habeas corpus petition in our federal court system. Habeas corpus is an ancient common law legal theory enshrined in our Constitution in what is commonly called the Suspension Clause:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

U.S. Const., Art. 1, Sec. 9, Cl. 2. The writ itself allows a person being held in detention to petition a federal court to have the authority responsible for detaining the person appear in federal court and show that the detention of the person is lawful. The burden of proof is on the detaining authority. Thus the government would have to provide evidence in Court, admissible under the Federal Rules of Evidence - a framework wholly ill suited for national security matters and involving personel serving half a world away - that the individual held was in fact an enemy combatant or member of al Qaeda, etc.

What the Court has done in Boumediene has been to extend the Writ of Habeas Corpus to non-citizens who are not present within the territory of the U.S. and who were retained as part of a war authorized by Congress. Carried to its logical conclusion, the Supreme Court just extended our Constitution to the citizens of the world, irrespective of their combatant status. Further, the Court took this step despite the laws passed by Congress specifically suspending habeas corpus for detainees.

Update 2: Ilya Somin at the Volokh Conspiracy does a good job of describing how unprecedented and far reaching this decision is:

. . . In earlier cases such as Rasul v. Bush, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld, the Court invalidated unilateral actions taken the by the executive, repudiating the Bush Administration's ultra-expansive interpretation of wartime executive power. However, Hamdan specifically left open the possibility that the administration's Guantanamo policies might be constitutional if authorized by congressional legislation. The Republican Congress (for the most part) provided that authorization in the Military Commissions Act of 2006.

In Boumediene, the Court challenges congressional power as well as the executive. It strikes down as unconstitutional several provisions of the Detainee Treatment Act of 2005 and the MCA. This is a nearly unprecedented situation where the Court rejected an important assertion of wartime power backed by both of the other branches of government. To my knowledge, virtually every previous case in which the Court ruled an important wartime policy unconstitutional was one where the policy in question was adopted by the executive acting alone. . .

Read the entire post.

All of this turns case law on its head and extends the power of the Court to oversee national security. It tosses out all of the laws passed by Congress to deal with prior challenges on habeas grounds. It will place an impossible onus on our military and our national security operatives to provide evidence – and in some cases classified information - in civil courts. Are we going to be sending back squad leaders and company commanders from the front line to provide testimony in U.S. courts? Do we have to provide the defense with the means and methods by which we collected our intelligence information? What a Pandora’s Box the activist wing of the Supreme Court has opened with this decision.

The ramifications of this decision are thoroughly explored by Supreme Court Justice Antonin Scalia in his dissent:

America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: at the Marine barracks in Lebanon, at the Khobar Towers in Dhahran, at our embassies in Dar es Salaam and Nairobi, and on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60–61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, at the Pentagon in Washington, D. C., and in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today. The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when he established the prison at Guantanamo Bay for enemy aliens. . . .

In the long term, then, the Court’s decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110–90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.

These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As THE CHIEF JUSTICE’s dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court’s contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase. But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. See ante, at 54–55. During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14–15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities. See id., at 15.

And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006), when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:

“Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary.

“Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine— through democratic means—how best to do so. The Constitution places its faith in those democratic means.” Id., at 636 (BREYER, J., concurring).

Turns out they were just kidding. For in response, Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. As the Solicitor General argued, “the Military Commissions Act and the Detainee Treatment Act . . . represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.” Brief for Respondents 10–11 (internal quotation marks omitted).

But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is “apparent.” Ante, at 40. “The Government,” it declares, “presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.” Id., at 39. What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails. . . .

McCain has many faults - and listening to him trash "greedy big oil" at his Town Hall meeting on Fox tonight made my tourette's kick in - but at least he will choose conservative judges. The damage being done to the U.S. by the activist wing of the Supreme Court is incalculable. God help us if we have Obama choosing Justices who, like the five activists on the Court, believe the Constitution should say whatever they want it to say on any particular day. Two years ago, in Kelo v. New London, the activist wing of the Court gutted the plain language of the Fifth Amendment to give government the right to take private property. Today's decision is, if anything, far worse, for it will do untold damage to our national security. In the long run, an activist Supreme Court steeped in the socialist philosophy of the left and with no concern for what the drafters of our Constitution intended is every bit as much a threat to our society as is radical Islam.

Update: Dafydd at Big Lizards has an excellent post discussing the ramifications of this decision and noting that the next President will likely appoint anywhere from one to three Supreme Court justice.

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Supreme Court Justice Scalia

The CBS show 60 Minutes recently interviewed Supreme Court Justice Antonin Scalia. He spoke on a wide range of topics, including originalism, abortion as a Constitutional right, and the Supreme Court decision in Gore.
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This was actually a very good interview, though the interviewer did not know enough about the law to get to the very bottom of Scalia’s philosophy on originalism. Nor did the author touch on the recent move by the far left of the Court to base their U.S. Constitutional decisions on foreign law, nor the far left decision in Kelo, essentially gutting the Fifth Amendment. That said, the interview gives a humanizing look at Justice Scalia as well as at least a taste of his judicial philosophy on issues that go to the heart of the nation America was and may become.

At 72, Justice Scalia is still a maverick, championing a philosophy known as "orginalism," which means interpreting the Constitution based on what it originally meant to the people who ratified it over 200 years ago.

Scalia has no patience with so-called activist judges, who create rights not in the Constitution - like a right to abortion - by interpreting the Constitution as a "living document" that adapts to changing values.

Asked what's wrong with the living Constitution, Scalia tells Stahl, "What's wrong with it is, it's wonderful imagery and it puts me on the defensive as defending presumably a dead Constitution."

"It is an enduring Constitution that I want to defend," he says.

"But what you're saying is, let's try to figure out the mindset of people back 200 years ago? Right?" Stahl asks.

"Well, it isn't the mindset. It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution," Scalia says.

"As opposed to what people today think it means," Stahl asks.

"As opposed to what people today would like," Scalia says.

"But you do admit that values change? We do adapt. We move," Stahl asks.

"That's fine. And so do laws change. Because values change, legislatures abolish the death penalty, permit same-sex marriage if they want, abolish laws against homosexual conduct. That's how the change in a society occurs. Society doesn't change through a Constitution," Scalia argues.

. . . "I’m surprised at how many people really, really hate you. These are some things we've been told: 'He’s evil.' 'He's a Neanderthal.' 'He’s going to drag us back to 1789.' They're threatened by what you represent and what you believe in," Stahl remarks.

"These are people that don't understand what my interpretive philosophy is. I'm not saying no progress. I'm saying we should progress democratically," Scalia says.

Back at the Oxford Union, Scalia told the students, "You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise. It can…I was going to say it can split the baby! I should not use… A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change."

But his critics argue that originalism is a cover for what they see as Scalia's real intention: to turn back some pivotal court decisions of the 1960s and 70s.

. . . He's been labeled a "counterrevolutionary."

"A counterrevolutionary!" Scalia reacts. "Sounds exciting."

The critics say his aim is to undo Roe v. Wade and affirmative action, and to allow more religion in public life.

"The public sense of you is that [you] make your decisions based on your social beliefs," Stahl says, with Scalia shaking his head. "That is the perception."

"I'm a law-and-order guy. I mean, I confess I'm a social conservative, but it does not affect my views on cases," Scalia says. "On the abortion thing for example, if indeed I were, you know, trying to impose my own views, I would not only be opposed to Roe versus Wade, I would be in favor of the opposite view, which the anti-abortion people would like adopted, which is to interpret the Constitution to mean that a state must prohibit abortion."

Scalia says he's against that.

"It's just not in the Constitution," Stahl asks.

"There's nothing there," he says. "They did not write about that."

His philosophy has occasionally led him to decisions he deplores, like his upholding the constitutionality of flag burning, as he told a group of students in Missouri.

"If it was up to me, I would have thrown this bearded, sandal-wearing flag burner into jail, but it was not up to me," Scalia told the students.

To Scalia, flag burning was protected by the founding fathers in the First Amendment, which is his only criterion, he says, under originalism.

"But do you respect that there is another way to look at this?" Stahl asks.

"You know the story of the Baptist preacher who was asked if he believed in total-immersion baptism? And he said, 'Believe in it? Why I've seen it done!' I have to say the same thing about your question. There must be other views because I've seen them," Scalia says.

"Yeah, but do you respect them? You don't, do you?" Stahl asks.

"I respect the people who have them, but I think those views are just flat out wrong," Scalia says.

He's talking about some of his fellow justices, like Ruth Bader Ginsburg, a liberal who is - and this never ceases to surprise people - one of Scalia's best friends, both on and off the court.

To Ginsburg, the Constitution evolves and should reflect changes in society; that going back to what was meant originally when they wrote, for instance, "We the People," makes little sense.

. . . Of all the cases that have come before him on the court, Bush v. Gore may have been the most controversial. It has been reported that he played a pivotal role in urging the other justices to end the Florida recount, thereby handing the 2000 election to George Bush. The subject came up at the Oxford Union.

"Supposing yourself as a Supreme Court justice were granted the power to appoint the next president of the United States. Who would you pick and why? And would he or she be better than your last choice?" a student asked Scalia.

"You wanna talk about Bush versus Gore. I perceive that," he replied. "I and my court owe no apology whatever for Bush versus Gore. We did the right thing. So there!"

"People say that that decision was not based on judicial philosophy but on politics," Stahl asks.

"I say nonsense," Scalia says.

Was it political?

"Gee, I really don’t wanna get into - I mean this is - get over it. It's so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn't even close. The vote was seven to two," Scalia says.

Moreover, he says it was not the court that made this a judicial question.

"It was Al Gore who made it a judicial question. It was he who brought it into the Florida courts. We didn't go looking for trouble. It was he who said, 'I want this to be decided by the courts.' What are we supposed to say? 'Oh, not important enough,'" Scalia jokes.

"It ended up being a political decision" Stahl points out.

"Well you say that. I don't say that," Scalia replies.

"You don’t think it handed the election to George Bush?" Stahl asks.

"Well how does that make it a political decision?" Scalia asks.

"It decided the election," Stahl says.

"If that’s all you mean by it, yes," Scalia says.

"That’s all I mean by it," Stahl says.

"Oh, ok. I suppose it did. Although you should add to that that it would have come out the same way, no matter what," Scalia says.

The justice has been explaining his positions publicly more and more, and even delving into some thorny issues, like torture.

"I don't like torture," Scalia says. "Although defining it is going to be a nice trick. But who's in favor of it? Nobody. And we have a law against torture. But if the - everything that is hateful and odious is not covered by some provision of the Constitution," he says.

"If someone's in custody, as in Abu Ghraib, and they are brutalized by a law enforcement person, if you listen to the expression 'cruel and unusual punishment,' doesn't that apply?" Stahl asks.

"No, No," Scalia replies.

"Cruel and unusual punishment?" Stahl asks.

"To the contrary," Scalia says. "Has anybody ever referred to torture as punishment? I don't think so."

"Well, I think if you are in custody, and you have a policeman who's taken you into custody…," Stahl says.

"And you say he's punishing you?" Scalia asks.

"Sure," Stahl replies.

"What's he punishing you for? You punish somebody…," Scalia says.

"Well because he assumes you, one, either committed a crime…or that you know something that he wants to know," Stahl says.

"It's the latter. And when he's hurting you in order to get information from you…you don’t say he's punishing you. What’s he punishing you for? He's trying to extract…," Scalia says.

"Because he thinks you are a terrorist and he's going to beat the you-know-what out of you…," Stahl replies.

"Anyway, that’s my view," Scalia says. "And it happens to be correct."

. . . "What is the connection between your Catholicism, your Jesuit education, and your judicial philosophy?" Stahl asks.

"It has nothing to do with how I decide cases," Scalia replies. "My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons. You don't count pregnant women twice."

. . . His new book, "Making Your Case, The Art Of Persuading Judges," is surprisingly breezy in that it’s a primer for lawyers on how to win cases. His co-author is Bryan Garner, an expert on legal writing.

"You say things in it like, ‘Be prepared. Look the judge in the eye.’ You almost make it sound like lawyers are imbeciles," Stahl says.

"You would be surprised," Scalia replies, laughing.

. . . "You’ve apparently had some down times in your tenure on the court so far. And I’m pointing to the term of 1995-96 when you wrote to former Justice Blackmun at the time, and here's what you said: 'I am more discouraged than I have been at the end of any of my previous nine terms.' You also wrote that you were beginning to repeat yourself, and you did not see much 'use in it anymore,'" Stahl remarks.

"Gee, I hadn’t remembered that I’d written it," Scalia says.

"It says, 'I am beginning to repeat myself,'" Stahl says.

"That's true. That is something that gives me some concern. I mean after a while, you know, I’m saying the same things in today’s dissent that I said in a dissent 20 years ago," Scalia explains.

"Around that same time you wrote, 'The court must be living in another world. Day by day, case by case it is busy designing a Constitution for a country I don't recognize,'" Stahl says.

"Yeah. That's how I felt," Scalia says.

"Past?" Stahl asks.

"It’s been less dire in more recent years," Scalia replies.

"In other words, you’ve had down times," Stahl asks.

"Yeah, I think so. I’m happier sometimes than at other times. And the end of a term, I don’t care what term it is, it’s usually a disappointment," Scalia says.

That's because - until recently - he was often on the losing side in cases he cared about most. Over the last several years Scalia has reached outside the court, speaking out publicly about his philosophy, in hopes of influencing the next generation. It’s a role he relishes.

"Little kids come to the court, they’re brought by their teachers. And they recite very proudly what they’ve been taught. I mean, this is how widespread the no-'The Constitution is a living document.' And I have to tell them 'It’s a dead document,'" Scalia told the students at the Oxford Union.

Read the entire article. The issues he raises are of great importance. If you are unfamiliar with Scalia’s judicial philosophy and how they apply, I would strongly recommend to you:

Justice Scalia's 2005 Speech on the Living Constitution

Transcript of the debate between Justices Scalia and Breyer on the issue of using foreign law to determine the meaning of the U.S. Constitution

The Living Constitution, Eminent Domain and Private Property Rights

The Constitution and the Red Herring of Abortion - Gonzalez v. Carhart

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