Krauthammer & The Tyranny of The Supreme Court

Anyone who celebrates this decision, wholly irrespective of where they fall on the issue of gay marriage, is an idiot who has no understanding of the law or the Constitution. If this stands, we are no longer are nation of laws; we are no longer a democracy.
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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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A Nation Of Men, Not Laws

Our Court system (like our regulatory bureaucracy) needs to be torn out root and branch. It is a cancer in our nation that no longer functions to maintain the rule of law. We are now a nation of men. Yesterday's two horrendous decisions by the Supreme Court offer yet more proof, if more is needed. In Texas Department of Housing v. The Inclusive Communities Project, the Court considered whether disparate impact theory can be used, standing alone, to establish racism under the Fair Housing Act. In King v. Burwell, the Court considered whether certain language in the statute limited federal subsidies to people in states that had established their own health care exchanges. Both cases involved "statutory construction."

Centuries old rules of statutory construction hold that, if a law is clear and unambiguous on its face, then the Court should construe it as written. If the law is ambiguous, than the Court has several methods to apply to construe the statute, including looking to legislative history. What the Court cannot do with any legitimacy is jettison those practices in order to insert their own policy preferences, in essence, unconstitutionally rewriting laws to suit their own ends. Yet that is what the Court did in yesterday in the above two cases that will substantially impact our nation.

In Texas v. The Inclusive Communities Project, the issue was whether disparate impact theory can stand alone as proof of racism in FHA cases. Since the 1960's, when someone dreamed up disparate impact theory, the left has seized upon it to prove institutional racism without the slightest proof of any actual racism. It is a horribly distorting theory that has been used in every possible scenario, from employment to housing to banking and many others. Indeed, it is that theory which, more than anything else, drove our nation into the Great Recession from which we have still not recovered. The theory is this - if a policy or simple selection shows that it is disparately impacting upon one of the left's victim classes, regardless if the policy is completely color blind and based on legitimate and validated concerns, such as, let's say, credit rating standards, then the institution can be held guilty of racism. No single legal theory has done more damage to our nation, nor been more abused by the left. It is not a theory that punishes racism, it is a theory that makes every business race centric and punishes legitimate standards.

In 2010, the Supreme Court held disparate impact theory unlawful in the employment context in Rici. It appeared that the Court was on its way to removing this cancerous theory from litigation. At least until the Texas case yesterday, when the Supreme Court held that disparate impact can be used in litigation against the FHA. You can read Justice Thomas's dissent beginning at page 32. The Fair Housing laws are silent on whether disparate impact can be used to establish a claim of racism. The legislative history is crystal clear that a showing of actual racism, "disparate treatment," is necessary to bring suit under the Fair Housing laws. The activist wing of the Supreme Court, this time without Chief Justice Roberts, ignored that legislative history to uphold use of disparate impact theory. What a travesty.

So the race hustlers can chalk up a huge win compliments of an out of control Court that is no longer a judicial body, but rather a highly politicized third policy arm of our government. The people the race hustlers purported to help, are not going to see it as a win, though:

Michael Skojec, a lawyer who filed a brief on behalf of Texas’s position, says what the country should be “trying to do is get people not to consider race, or think of people in racial terms”: “The disparate-impact concept encourages and requires people to think about race in every decision.” He points out that the city of Houston has over 43,000 families on its waiting lists for affordable housing, almost all of them black. But forcing the Texas Housing Authority to change its tax-credit allocations will mean that most of them will have to wait far longer to get a better place to live.

Then in yesterday's other obscenity, King v. Burwell, the activist wing of the Court, this time with Chief Justice Roberts, took it upon themselves to rewrite the plain language of Obamacare to allow the law to survive. This from Justice Scalia's well grounded dissent:

Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges. “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” . . . Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.

. . . .

Today’s opinion changes the usual rules of statutory interpretation for the sake of the Affordable Care Act. That, alas, is not a novelty. In National Federation of Independent Business v. Sebelius, 567 U. S. ___, this Court revised major components of the statute in order to save them from unconstitutionality. The Act that Congress passed provides that every individual “shall” maintain insurance or else pay a “penalty.” 26 U. S. C. §5000A. This Court, however, saw that the Commerce Clause does not authorize a federal mandate to buy health insurance. So it rewrote the mandate-cum-penalty as a tax. . . . The Act that Congress passed also requires every State to accept an expansion of its Medicaid program, or else risk losing all Medicaid funding. 42 U. S. C. §1396c. This Court, however, saw that the Spending Clause does not authorize this coercive condition. So it rewrote the law to withhold only the incremental funds associated with the Medicaid expansion. . . . Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.

This is no longer a nation of laws. And unless the Courts, now the most dangerous branch of government, are uprooted and we start over with reforms in the nature of those proposed by Newt Gingrich, this nation will be forever dragged further and further away from the Constitutional framework drafted by our Founders into an activist nightmare.

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Watcher's Council Forum: How Will The Supreme Court Rule On Same-Sex Marriage?

Each week, the Watcher's Council hosts a forum on a topic du jour, as well as a weekly contest among the members for best post. This week's forum question is "how will the Supreme Court rule on same sex marriage?" I have kindly been invited to respond.

Update: The forum is now posted here. Do click over to see how the rest of the respondents answered this question.

The Supreme Court is currently considering same sex marriage in the case of Obergefell v. Hodges. I expect that they will decide the case by discovering that there is a right to gay marriage in the Constitution. It has been, they will claim, perfectly hidden in plain sight in the Constitution for a century and a half.

I also expect the Court's decision to break the camel's back as these supremely arrogant judges force left wing social policy down the throat of this nation and begin a final, direct assault on the rights of conscience of the religious in our land. If you thought the activist Roe v. Wade decision caused turmoil, I can assure you, you haven't seen anything yet. As Bookworm Room pointed out some time ago, unlike with abortion, this decision will, for the first time in our nation's history, make it unlawful to live by the same Judeo-Christian beliefs that have been part of our nation since the Founding.

As I pointed out in The Supreme Court: Originalism, Judicial Activism, & America's Future, there are two schools of Constitutional interpretation, originalism and activism:

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 irreplaceable tool to remake society.

The left has been relying on judicial activism for the past century to work fundamental, unconstitutional and non-democratic changes to our society, and they have engaged in what has amounted to a jihad on the Judeo-Christian religions. Finding that a right to homosexual marriage has been hiding in the Fourteenth Amendment for the past 147 years would set the stage for the last step in that jihad.

The Fourteenth Amendment holds, in relevant part, that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws" - the so called Equal Protection clause. The Fourteenth Amendment was passed in 1868, in the wake of the Civil War and the abolition of slavery, for the purpose of insuring that blacks were treated to no legal disability in this nation. There is no evidence whatsoever that those who passed this law intended its provisions to extend to homosexuality. To the contrary, homosexuality was then under legal disability throughout most of the states. To claim now that the Equal Protection clause includes homosexual marriage in its ambit is to make an utter mockery of the Constitution and our system of government. This is not a nation of laws; it is now a nation subject to the whims of activist judges who, in acts of supreme arrogance, corrupt our entire government when they impose social policy at odds with the will of the people of this nation and their elected representatives.

What should happen is that the nine members of the Supreme Court should examine intent of those who drafted and voted for passage of the Fourteenth Amendment in 1868. That would inevitably lead to the conclusion that homosexuality is not a "right" enshrined in the 14th Am., and that that there is no Constitutional right to homosexual marriage. The only way to change that at the federal level is through a Constitutional Amendment as set forth in Article V. Barring that, because the Constitution does not concern itself with homosexuality or marriage, this is an issue of social policy that, per the Xth Amendment, should be left to the states. Period.

But what we have on the Court today are at least four judges who live to impose their left wing social policy preferences on our nation, and Justice Kennedy, who has shown himself ready to join the four in support of homosexuality and against the rights of the religious in this nation. Two years ago, Kennedy and the other four struck down the Defense of Marriage Act and refused to hear an appeal seeking to uphold California's referendum on Section 8, defining marriage as between a man and a woman. Last year the Supreme Court let stand a New Mexico decision punishing a Christian photographer targeted by the gay mafia for refusing to photorgaph a gay wedding ceremony. The handwriting is on the wall on this one. We'll see what follows after.

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The Watcher's Council Forum: Is America In Decline? Why Or Why Not?

Each week, the Watcher's Council hosts a forum, in addition to holding a weekly contest for best posts among the members of the Council. I have been kindly invited to respond to this week's question. Update: The forum is up, with several different answers to the question, all worth your read.

It is beyond question that our nation is in decline. We stand mired in historic levels of debt, yet massive deficit spending by Congress continues unabated. Regulations are being pumped out by unelected bureaucrats at record pace, working fundamental changes to our nation that could never pass Congress. Yet Congress sits by and the odd Congresscritter only occasionally impotently complains in speeches. Medicare and Social Security threaten to bankrupt our nation in the foreseeable future unless reformed, yet Congress does not just nothing, but manages to compound the problems with Obamacare. We have a tyrannical President who unconstitutionally threatens our country's make up by unilaterally legislating the legalization of millions of illegal aliens, while an utterly supine Congress with the sole Constitutional authority to legislate is allowing this to happen. It appears that elections for either party no longer matter to change our national trajectory.

Our Supreme Court today sits as a sort of unelected Politburo deciding that the Constitution means whatever five of them want it to mean based on their whim of the day. What was supposed to be the least dangerous of our co-equal branches of government is now arguably the most dangerous. The left is using our military as a laboratory for insane social experiments, the worst being to allow women into front line combat units, something that can only be accomplished in any number by lowering the physical standards. And that does not even begin to consider the impact on unit cohesion. Space exploration as well as virtually everything to do with space is without doubt of incredible importance to our future. Moreover, it is vital that we continue to develop space defense technology to protect our many satellites upon which modern life is dependant. Space technology is an area where we have still a distinct advantage, yet Obama has killed our nation's space program. Lastly, our national security posture hasn't been this bad since the 1930's.

I think it would be fair to say we are not merely in decline, but rapidly approaching key tests during our descent that will determine our future. It is hard to say which will be the first key test, whether it will come in the form of severe economic stress as the interest rates rise on our outrageous national debt, or whether it will come in the choking of our economy by ever more far reaching regulations by the EPA and FCC, or whether it will come from foreign countries energized by our growing weakness. The only sure lesson of history is that the tests will come.

Our nation has proven resilient in the past, but in the past, we've been much better positioned to respond to challenges. In the past hundred years, we've faced the Depression and come through. But that was at a time when our massive excess industrial capacity sat untapped and we started from a point with no major deficits. We faced WWII and came through. But that was at a time when the other allied nations had strong militaries of their own, not the empty shells that they now have. We faced down the Soviet Union, but that was at a time when our military was at the pinnacle of its strength, not now when Obama has starved our military for funding, going so far as to change our national security posture from being able to fight two simultaneous wars to one. That was a change not based on any threat assessment, but rather a desire to divert the savings to his various welfare programs. And he has likewise overseen the devolution of our nuclear capacity -- something that has maintained the peace in Europe for 75 years -- because of his insane, utopian vision of a world without nuclear weapons. Somebody, please inform the North Koreans, the Iranians, and the other Middle Eastern nations now initiating their own nuclear weapons programs.

Bookworm Room has added her own cogent thoughts to this list above. To paraphrase, in the past, when challenges faced our nation, we had a fundamental love of country to join us. Our immigrants once came for the freedom to seek wealth. Yet today, "our immigrants come for handouts that they then wire to the tyrannies back home." And worst of all:

Our young people once thought that we brought freedom to the world; our young people now believe that we are evil. When a nation's young people think that they and their country are unworthy, the ink is on the suicide pact. And when they've been trained to think of themselves as fragile victims, you can bet that the first drop of blood spilled will seal that pact.

It is hard for me to believe that America will retain a dominant position in the world beyond another decade or so. Perhaps this would not matter if America was intrinsically evil as the left seems to think, or if those who would replace us were benign. The reality is that no nation is strong enough to take our place at the moment, and those who will vie for influence do not have a history of rule by law or democracy. Nor do I believe there is any leader we could elect in 2016 that could restore the Constitutional systems that have allowed us to flourish for much of the past two centuries.

That said, perhaps in response to the key tests and trials foreseeable on our national horizon, things might change. My pessimism is moderated by the reality that history has few straight lines, and great nations have rarely gone gentle into that good night. But my pessimism is made worse by the knowledge that, with key tests and trials come great costs in gold and in blood. The question is not whether America is in decline, but how low we must fall before we even begin to recover, and at what cost?

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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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Obama's Deeply Cynical Manipulation Of Public Opinion On Obamacare

This from Obama today when questioned at a news conference about the Supreme Court's review of the Patient Protection and Affordable Care Act of 2010 (PPACA):



So Obama is telling America that it would be an "unprecedented, extraordinary" act of "judicial activism" were "an unelected group of people" to "overturn a duly constituted and passed law" that was "passed by a strong majority of a democratically elected Congress." This deeply cynical man is attempting to poison the well of public opinion in advance of what may be an adverse Supreme Court decision striking down Obamacare, and he is not letting truth or reality slow him down the slightest.

The central purpose of the Supreme Court since Marbury v. Madison was decided in 1803 has been to review laws passed by Congress for constitutionality. There is nothing "unprecedented" or "extraordinary" about it. And Obama's argument against Constitutional review in this case - that because the PPACA was passed by a "majority in Congress" it should pass Constitutional muster - is ludicrous. All laws passed by Congress do so by a "majority" or they don't become law. If the mere passing of a law by Congress were the standard for constitutionality, then no law would ever be subject to review and our Constitution would be just meaningless words with no constraining effect. Update: As Doug Ross points out, the Supreme Court has acted in an "unprecedented" and "extraordinary" manner to strike down over 1,315 laws as unconstitutional in its history.

And let's be completely clear, this new found left wing antipathy for the "unelected group of people" sitting in Constitutional judgment could not be more hypocritical. The left's entire modus operandi for the past fifty years has been to solicit true judicial activism and use the Courts as an end run around democracy and majority rule. For but one recent example, where was the hue and cry from Obama and the left when an unelected Judge in California overruled the votes of 7 million Californians to divine a heretofore never seen right in the Equal Protection clause to gay marriage? Or for another, where was their outcry when the Supreme Court ruled Congress's laws regarding the procedure for handling terrorist detainees unconstitutional in Boumediene? As I recall, Obama was praising that decision. Apparently, constitutional review is only "unprecedented" and "extraordinary" when the ruling might go against the left.

And lastly, to state that striking down the PPACA for violating the Constitution would be an act "judicial activism" is to completely redefine the term. Obama is using that term to confuse the issue as much as possible. He is using it to create the fantasy that it is conservatives on the Court who seek to act without reference to the Constitution and prior precedent, rather than he and the left. Obama is further using this charge to paint the Supreme Court as the enemy of the people. Sounds pretty Bolshevik, doesn't it? It is all BS by the the truckload.

"Judicial activism" occurs when a Court creates new law not supported by the text of the Constitution or by prior decisions of the Court. That's what Congress has done here, not the Courts.

To uphold Obamacare, the Supreme Court would have to vastly expand the power of the federal government under the Commerce Clause. None of the prior cases under the Commerce Clause allow for the government to force people into an act of commerce (see here, with the relevant discussion beginning at page 20.) As Justice Anthony Kennedy pointed out during oral argument, "the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in a very fundamental way."

What that means is that, if the Supreme Court holds Obamacare unconstitutional, they will not have to overturn existing precedent in any way. The federal government would have - unfortunately - exactly the same expansive powers under the Commerce Clause that it had on the day Obama was inagurated. All the Court would have to hold is that the mandate forcing people into commerce is not supported by the text of the Constitution, nor by any of the prior decisions interpreting the Commerce Clause. To do so would be an act of judicial restraint - the polar opposite of "judicial activism." It is the Supreme Court doing precisely what it is meant to do - to keep our government within the constraints of the Constitution.

Obama's not that dumb. He is a former teacher of Constitutional Law, and I am sure that in between teaching classes on critical race theory, he managed to find some time to lead his class through Marbury v. Madison and the Commerce Clause. Rather, he is lying through his teeth in order to motivate his far left base, to effect the opinion of those in the middle who are uneducated on the law, to appeal to those who see the Constitution as an out dated impediment to achieving their goals, and to warn the Supreme Court that they will be demagogued severely if they don't vote his way.

As to the demagoguery, note that this is the second time Obama has made a boogeyman of the Supreme Court for issuing - or in this case, seemingly preparing to issue - a decision that he does not like. The first was his attack on the Court over the Citizens United decision. For that decision, you will recall Obama publicly criticizing the Court at the State of the Union speech in 2010. Imagine the hue and cry from Obama and the left should the Court strike down Obama's signature achievement as unconstitutional. This is shades of FDR who so intimidated the Supreme Court that they gave up interpreting the Constitution and in the end became a rubber stamp for approving the massive accretion of government power under the Commerce Clause. What Obama is exhibiting is not a respect for the rule of law in America, but like FDR before him, a wholesale disregard for it as an impediment to his remaking of our country.

Obama is so intellectually dishonest, he makes Nixon look like a paragon of veracity. Not a single word this man says can be trusted. And no need to take my word for it, just ask Cardinal Dolan. Democracy only works if people have the relevant facts. What Obama is doing is substituting falsehoods for the facts in an effort to subvert democracy.

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Word Games - Trying To Redefine "Judicial Activism"

Do you remember when today's "progressives" called themselves liberals? They don't today because the term "liberal" became too toxic, associated with all sorts of ills for which they were responsible. Thus the left rebranded. That is one word game the left follows, another is the art of "tenditious redefinition," to simply take a word that sums up an accusation against them, and turn it on its head. For example, does anyone actually believe that the People's Democratic Republic of North Korea is either democratic or a republic. At any rate, "tenditious redefinition" is what our left are doing today with the term "judicial activism."

"Judicial activism" has been used for years to refer to ignoring original intent and, equally, creating new law out of non-existent Constitutional cloth. Roe v. Wade (finding a right to abortion in the penumbras), Kelo v. New London (gutting the 5th Amenment), , Boumediene v. Bush (writing a role for the Courts into decisions of national security), and Trop v. Dulles (8th Amendment "evolving standards of decency"), all constitute clear examples of judicial activism. The polar opposite of "judicial activism" is originalism, where the Courts act within the constraints of the original intent of the drafters of our Constitution and existing precedent. The best example of this is the Heller case on the 2nd Amendment.

And yet now, the left, with Obamacare looking like its going to be overturned, is prepping the battlefield by claiming that to find Obamacare unconstitutional would be an act of "judicial activism." This is insane.

Obamacare would fundamentally change our federal government from one of enumerated powers - that it has been since 1783 - to one of unfettered power. As I point out in the post below, it would give the federal government the right to require that everyone who participated in the Boston Tea Party buy East India Trading Company tea. That is the polar opposite of what our Founding Fathers created when they signed onto the Constitution. To approve of this would be the most far reaching act of judicial activism our nation has ever seen.

According to the intellectually challenged EJ Dionne (the guy really is dumber than dirt), "It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.legislative power is supposed to rest in our government’s elected branches." Dionne would redefine "judicial activism" to be the mere striking down an act of Congress as unconstitutional, irrespective of whether it exceeds the bounds of the power of the legislature. And he is far from alone. Johnathan Chait in NY Magazine makes precisely the same argument, as does the NYT editorial board.

These arguments are not merely intellectually dishonest, they are insidious in their attempt to redefine words to suit their purposes. And while I disagree with every word Dahlia Lithwick writes at Slate, at least she brings a bit of intellectual honesty to the argument. Her argument is pragmatic, that the Court should uphold Obamacare because it makes the most sense in our modern era. Her complaint is an accurate one, that the conservative justices are looking back in time to define legislative power. She says they are looking back to 1804. She is only off by 21 years.

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The Left's Constitutional Wish List

Do the left wing in our country see our Constitution as an archaic obstacle to their goals? The recent evidence certainly points to it. The question then becomes, if the left could wage a magic wand, with what would they replace our Constitution?

It was about two years ago that the left's "go to guy" for policy issues, Ezra Klein, complained about the Constitution, that "the text is confusing because it was written more than a hundred years ago."  The left has been working through the Courts to work fundamental changes to the Constitution for 50 years, creating new rights out of whole cloth in many instances while, in other areas of  enumerated rights, limiting them. As to the latter, religion and property rights have been the arenas of the most judicial activism.

Thus it was no surprise when a sitting left wing Supreme Court Justice, Ruth Bader Ginsburg, should opine that Egypt should not look to the U.S. Constitution as a model, but rather to South Africa's Constitution, as it "embrace[s] basic human rights . . . [and] an independent judiciary." Nor is it surprising to see the New York Times weigh in with an editorial, suggesting that our Constitution has many faults. "The rights guaranteed by the American Constitution are parsimonious by international standards," and the Constitution is "difficult to amend." I add as a comment here that it is not difficult to amend our Constitution if you are a federal judge who wants to see their own personal policy choices made into Constitutional law. At any rate, the NYT author then launches into the crux of the left wing criticism of our Constitution:

Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.

It has its idiosyncrasies. Only 2 percent of the world’s constitutions protect, as the Second Amendment does, a right to bear arms."

As to a right to travel and a presumption of innocence, the NYT criticism is ridiculous.  Those have been fundamental rights recognized by our Courts since the time of our founding.  Likewise, the left  uniformly hates the thought of an armed populace.  But the real nub of the NYT criticism is that our Constitution does not make us all wards of the state by entitling us all to "food, education and welfare."    

 The South African Constitution so beloved of Justice Ginsburg goes further than merely "food, education and welfare."  It includes:

-  a right to housing;
-  makes affirmative action Constitutional;
-  has a provision requiring regulation of hate speech;
-  provides a right of all workers to unionize and strike;
-  provides a right to a clean environment;
-  allows property to be expropriated not merely for a public purpose, but also "in the public interest;
-  provides an extensive children's bill of rights; and finally,
-  it contains a clause that allows the government to limit the above rights as it deems necessary.

In short it is a leftie's wet dream.  It provides cradle to grave welfare, extensive unionization, it limits property rights, allows for government thought control under the auspices of hate speech, and finally, contains a catch all provision that allows the government to limit all of the above rights.  It is a Constitution that requires big government, massive taxation to provide  the welfare state, and that allows religious freedom on one hand but limits it on the other through hate speech laws and by requiring the state to assume functions that are traditionally charitable.  And on top of that, the catch all provision would allow the government expansive power to drive a gaping hole through every one of the rights.

If you want to see where the left would lead our nation, Ginsburg and the NYT are not exactly hiding the ball.  They would take us from a nation of limited government to a socialist nation with an expansive government.  Unfortunately, through judicial activisim, they are well on the way to achieving their goal.  It is a process that, as Newt Gingrich and Andrew McCarthy point out, must end.

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Another Anti-Democratic Court Outrage - The Ninth Circuit Upholds A Constitutional "Right" To Gay Marriage

Everything that is wrong with our of control court system is on display today in the Ninth Circuit Court's decision in Perry v. Schwarzenegger, upholding a lower court ruling that the will of over 7 million Californians who voted for Prop. 8 doesn't matter. Morality based on ancient Christian moral precepts doesn't matter. Gay marriage is a "constitutional right" in California.

You can find the entire opinion at Legal Insurrection.

 There is no question that at the time of the drafting of the Constitution and, 70 years later, the 14th Amendment, homosexuality was a legally proscribed practice across our nation.  Thus, using the originalist theory of Constitutional interpretation, gay marriage cannot today be recast as a Constitutional right absent an Amendment to the Constitution.  And indeed, this finding of gay marriage as a Constitutional right by the 9th Circuit is pure judicial activism, creating new rights out of whole cloth.  This is in almost every respect a replay of Roe v. Wade.

Gay marriage is a social issue raised to the fore today on the basis of changing social mores. Since it was not a right envisioned by the drafters of our Constitution and 14th Amendment, gay marriage is an issue that should be solely reserved to the states - and very much more specifically, the states' ballot boxes. This is not an issue for the Courts.

What we see in the Ninth Circuit opinion is just one more group of unelected judges who deem themselves the final arbiters of what U.S. social policy should be and who have no problem with unilaterally amending our Constitution. This despite the fact that the Constitution provides two different methods for amendment, neither of which provides for the unilateral decision of a gay district court judge or two left wing judges on the 9th Circuit Court to depart from the original intent of the drafters.

This is also one more attack on religion in this country - with the left seeking to delegitimize it and raise in its stead their own "anything goes - as long is it doesn't disagree with what we want" morality and mentality. We have seen that morality at work in just the past weeks, with the Obama administration decision to force Catholic institutions to pay for health insurance covering contraception and Plan-B abortion, and we have seen that mentality at work in the left's utterly vociferous reaction to the Komen charity's decision to stop funding Planned Parenthood.

Professor Jacobsen at Legal Insurrection summarizes the Perry court holding thusly: "since there was a prior right to samesex marriage (based on a California Supreme Court decision which gave rise to Prop. 8 ) — the taking away of that right without justification violated the 14th Amendment." So yes, the Ninth Circuit danced around affirmatively finding a right of gay marriage in the Equal Protection clause. That still does not change the fact that they should have dispensed with this case on the ground that the Equal Protection clause allows for no such right and that the will of Californians who voted for Prop 8 should be honored.

So why wasn't ancient morality derived from the Christian religion a sufficient "justification" to uphold Prop. 8. That is because, as a matter of law, Christian moral views are now deemed "irrational" and not afforded any weight.  That is a complete, judicialy imposed break with how our founding fathers saw the role of religion in America.  Compare and contrast this with the Northwest Ordinance, passed by the same people who voted to approve the First Amendment, that "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged;” [and compare as well as with] early Congresses [that] proceeded to make grants of land to serve religious purposes and to fund sectarian education . . ."

At any rate, the Supreme Court led the way in severing Christian morality from our laws when they held in Lawrence v. Texas that morality is no longer a justifiable basis for our laws. If you read that case, you will see that the majority simply disagreed with the Christian morality enshrined in the Texas state law proscribing sodomy. Ironically, what they did instead was to substitute their own moral choices. It was another major marker in the advance of secularism in this country over the will of the people and another major attack on the role of Christianity in the public square.

And thus today do we have the 9th Circuit Court in Perry v. Schwarzenegger ruling that there is no rational basis for denying gays the right to marry in California.  Newt Gingrich and Andrew McCarthy have this one right.  Our courts are completely out of control.  Something must be done to restore the constitutional balance - and preferably, that something will include tar and feathers.

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Levin On The Right-Wing Pundits' Insane War On Gingrich

This from Mark Levin, writing at the Right Scoop:

While Mark Levin is on vacation, he’s taken a little time to pen his thoughts on the ongoing disgusting attacks aimed at Newt Gingrich by those on the right, including Ann Coulter, George Will, and the NRO:
-----------------------------

Is Newt really Satan?

If you read the comments on some conservative sites you might think so.

Newt Gingrich is not my first choice for the GOP nomination. I have said if I were voting today, I would vote for either Michelle Bachmann or Rick Santorum. But I don’t feel the need to smear Newt, either.

My friend Ann Coulter says she would vote for Ron Paul over Newt Gingrich. Really? Despite his racism, anti-Semiticism, hate-America first pronouncements, 9/11 truther nuttiness, etc., etc.? What about this?

http://www.jbs.org/birchtube/viewvideo/1007/constitution/ron-paul-at-the-50th-anniversary-of-jbs

What about this?

http://www.usatoday.com/news/politics/story/2011-12-21/ron-paul-racist-newsletters/52147878/1

What about this?

http://thedaleygator.wordpress.com/2011/12/09/nutbag-ron-paul-bush-administration-reacted-with-glee-after-911/

What about this?

http://www.textfiles.com/politics/ron_paul.txt

The list goes on and on. Coulter is undoubtedly aware of all of this. How can she or any sensible person, let alone conservative, advocate for or defend this? She backed Chris Christie, telling me that if Mitt Romney is nominated he will lose as John McCain did, and it will be my fault (along with Rush’s and Sean’s). Now, she insists that only Romney can win and the conservatives in the field cannot. Perplexing.

George Will is slamming away at Newt again today, having previously suggested he was a Marxist. A Marxist? Is this the same Will who supported George H. W. Bush and Howard Baker over Ronald Reagan in 1979? Somehow he not only missed the Reagan Revolution, but he initially doubted it and opposed it. Your judgment, George, does not match your conceit, with all due respect.

Over at NR, the hits keep coming. My friend Ramesh Ponnuru is waxing on priest-like about Newt and his Catholic faith. It’s a very odd piece. But Ramesh backs Romney, not Rick Santorum, who is not only Catholic but is clearly a more reliable conservative than Romney. Perplexing.

Most of Newt’s attackers have announced for Romney or are at least fronting for him, overlooking or excusing most of Romney’s deceits — which continue to this day and most recently involve his flip-flopping on the Iraq War. Moreover, Will has not said who he supports, having previously backed Mitch Daniels. No doubt Michelle Bachmann is just too wacky and inexperienced for his tastes, much as Reagan was too old and unsteady back in 1979.

Having consulted a number of friends and colleagues from the Reagan era, they agree with me that we’ve not seen this kind of daily attack on a legitimate Republican primary candidate in modern times, despite Newt’s weaknesses and faults. And most are disgusted by it.

Boy, does Levin have this one right. To call this disgusting is an understatement. In truth, these attacks are more vitriolic than what we saw directed at Sarah Palin by the left. If you haven't seen George Will's column today at WaPo - I am not going to link such trash - it is insanity on steroids. He proclaims that Gingrich is the "anti-conservative" (I assume that is a play on the "anti-Christ") because Gingrich wants to put an end to judicial activism. If Will's name wasn't at the top, I would have thought it written by Paul Krugman or Glen Greenwald.

I e-mailed the following to Will this afternoon:

Your hatred of Gingrich has been palpable from the start of the campaign. It has clearly clouded your judgment.

Conservatives have been shaking their fists impotently at the Courts for their judicial activism - their Politburo like unilateral amendments to the Constitution working fundamental changes to our nation - for the past fifty years. Heretofore, the only solution to the problem was thought to be electing Presidents who will appoint judges grounded in originalism. That has been less than successful. Enter Newt Gingrich, who has completely changed the paradigm on this critical issue. He wants to make a systemic fix that will permanently restore the Constitutional balance between the three branches of our government as such balance was envisioned by the Founders. Andrew McCarthy and Judge Mukasey certainly support that. Yet you would label the effort anti-conservative merely because it comes from Gingrich?

I've lost all respect for you at this point Mr. Will. Your determination to excoriate Gingrich at all cost has descended into farce with your most recent column.

Just out of curiosity, do you have any respect for the 11th Commandment?.

A hat tip to Daily Gator for this post, as well as a congrats for being cited by Levin. Visit the Daily Gator's site for some additional videos detailing the pundit's war on Gingrich.

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Andrew McCarthy: Gingrich Has It Right On Our 'Imperial' Courts

This is the absurdity: The Constitution says it cannot be amended absent an elaborate process involving supermajorities of Congress and the states — but the courts have somehow convinced us that a 5–4 shakeout from nine unelected lawyers can do the trick.

Andrew McCarthy, Gingrich & The Courts, NRO, 21 Dec. 2011

Conservatives have been shaking their fists impotently at the Courts for their judicial activism - their Poliburo like unilateral amendments to the Constitution working fundamental changes to our nation - for the past fifty years. Heretofore, the only solution to the problem was thought to be electing Presidents who will appoint judges grounded in originalism. That has been less than successful. Enter Newt Gingrich, who has completely changed the paradigm on this critical issue. He wants to make a systemic fix that will permanently restore the Constitutional balance between the three branches of our government as such balance was envisioned by the Founders.

Noted lawyer and now columnist at NRO, Andrew McCarthy, reviews Newt Gingrich's plan to redress the balance. Mr. McCarthy first describes the underlying reasons that support Gingrich's focus on this critical issue. First up is a case that I previously described as "a vast expansion of the power of the Court" into the enumerated powers of Congress and the President, opining that it "may turn out to be the most costly decision ever to our nation." That case of judicial activism run amok was Boumediene v. Bush. This from Mr. McCarthy:

In a ruling that defied both logic and centuries of Anglo-American jurisprudence, the Court [in Boumediene] held that aliens captured outside the United States — aliens whose only connection to our body politic was to wage a terrorist war against us — were somehow vested with a constitutional right of access to our courts to challenge their detention.

These rulings are not simply legal outrages. They deny the sovereign power of the American people to enforce their natural right of self-defense — all for the benefit of foreign jihadists who target civilians for mass murder. Nor are they singular excesses. In the last three-quarters of a century, there has been an explosion of juristocracy, of politically unaccountable judges’ nullifying the American people’s democratically enacted choices. The courts have not merely been an advocate for our wartime enemies but a partisan in the culture wars — inventing abortion rights; eroding the bedrock principle of equal protection before the law; cossetting heinous criminals; banning public expressions of religious reverence; protecting the publication of child pornography while curbing political speech; cherry-picking international law as needed to reverse popular self-determination; and so on.

Having enumerated the assaults on our Constitution by the Courts, McCarthy notes that both he and former U.S. Attorney General Michael Mukasey embrace Gringrich's plan to right the Constituional balance, even though neither agrees with all of Gingrich's proposed fixes. This from Mr. McCarthy:

In the real world, there are many steps between the extreme we have now — sheep-like acquiescence to a continuing usurpation of power — and the extreme of making the offending judges disappear.

For example, the political branches may enact laws that deny the courts jurisdiction to hear certain kinds of cases. If the courts ignore these bars (as they did in the detainee cases), the political branches may enact laws reversing those decisions. If the courts persist in their obstinacy, theorizing that they are vested with the final power to divine the Constitution’s meaning (a power found nowhere in the Constitution), the political branches could enact a law, or propose a constitutional amendment, that explicitly empowers them to overturn decisions of the Supreme Court. Or they could simply refuse to enforce court rulings — the courts’ impotence in unilaterally imposing their judgments having been the principal reason Hamilton presumed the judiciary to be “the least dangerous” branch. Congress, moreover, could revisit the dubious tradition that judges can be impeached only for personal corruption, and not for persistently, egregiously overstepping their authority.

That last is a suggestion I raised in a post here. Mr. McCarthy concludes:

Gingrich deserves credit for forcing the vital issue beneath all of this, an issue that every GOP candidate ought to address. The Supreme Court has long purported to be the final authority on what the law is. It was one thing to take that position when the judges had a modest understanding of their role: namely, to resolve cases between litigants, without the grandiosity that would impose those rulings on every American. As Gingrich points out, however, for the last half-century, the Court has regarded itself as a permanent constitutional convention. This is the absurdity: The Constitution says it cannot be amended absent an elaborate process involving supermajorities of Congress and the states — but the courts have somehow convinced us that a 5–4 shakeout from nine unelected lawyers can do the trick. So the question for the candidates is, who is the sovereign? Who gets the final word on what the law is? Hint: The first three words of the Constitution are not, “We the Judges . . . ”

Mr. McCarthy's analysis tracks with my own on this issue. Correcting this vast overreach by our Courts over the past half century, restoring the balance to that envisioned by our Founders, is crucial for the future of our nation. That Gingrich has the courage to bring this up - against what will surely be withering attack from the left - is one of the primary reasons why I support him for President.

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Gingrich's Attempt To Redress Judicial Activism

Why does the Supreme Court have the power to decide whether a law is constitutional? Because they arrogated themselves that power near two decades after the signing of the Constitution, in the case of Marbury v . Madison. Article III of the Constitution is silent on any such power.

Why is the Supreme Court's say on the constitutionality of any particular law final, subject only to change by a Constitutional amendment? Again, because the Supreme Court said so, this time in the 1958 case of Cooper v. Aaron. That case represented a vast expansion of the power of the Court first articulated Marbury.

Newt Gingrich raises all of this as a major plank in his campaign for the President. And for all the impotent wailing and gnashing of teeth by conservatives on this issue over the past half century, Gingrich is the first person to come up with a comprehensive plan to restore the Constitutional balance of powers that existed at the time the framers drafted our Constitution. Gingrich's position paper on this issue can be found here.  He is under attack from all sides for merely raising the issue, let alone the boldness of his plan.  The plan he proposes is indeed a "first draft," and some of his proposals will likely not work.  But that in no way means his plan as a whole is unwarranted, nor that all of his ideas are unworkable.

As a threshold matter, I've been pounding on the issue of our judiciary as an unelected politburo for years.  I am in complete agreement with Newt on this issue.  To quote from my post, The Supreme Court: Originalism, Judicial Activism, & 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 holding that the Second Amendment does not provide an individual right to carry arms, thus giving the government the power to disarm all Americans . . .

- 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 cherry picked 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 and the means by which states can apply it. While some of these restrictions are valid as a means of insuring due process, others are examples of pure policy decisions 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. In creating these new rights, the Court is 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.

- overturned the votes of over 7 million Californians who said gay marriage should not be made legal within that state.  This was the decision of an unelected gay judge who held that gay marriage is a Constitutional right of all Americans under the Equal Protection clause.   At the time the Equal Protection clause was written, virtually every state in the Union had laws against homosexuality. There is no question then that homosexuality was not intended to be within the sphere of “equal protection under the laws.” Thus this is an issue of social policy left solely to the province of the people to decide.

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. . . .

When Newt says that the Courts were meant to be the least powerful branch of government, he is correct. And when Newt says that the Founders never envisioned a Supreme Court with the power it wields today - citing to the writings of Alexander Hamilton and James Madison in the Federalist Papers - he is also correct. Thus have the Courts become a politburo.

The Constitution provides for two means of amendment. Neither of those means include the unilateral amendment of the Constitution by Judges imposing their own view of what the law should be.

Newt's proposals to redress that balance are far reaching. The problem of course is how to limit the power and reach of the Court without making of the judiciary a less equal and wholly political body (though arguably it is a wholly political body today). We do not want to create of ourselves a new UK, where the Courts are neutered and the Parliament operates as a tyranny of the majority. It is a Gordian knot that Newt seeks to untie.

Hot Air's Jazz Shaw touches on this problem in his post, Newt's War On The Courts. The post, and the citations, are full of misstatements by Jazz as well as the people to whom he cites. In regard's to Gingrich's plan to impeach judges that depart from the Constitution in their decisions, there is much huffing and puffing that Article III of the Constitution provides that federal judges "serve for life." They are reading a different article III than I am. Specifically, Art. III, Sec. I provides "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . ." The question than becomes, what defines "good behavior." Clearly, the failure to adhere to the laws of our nation would be a violation of good behavior. That is what Gingrich is getting at, but unfortunately he does not bring clarity to his standards, thus leaving himself open to charges that impeachment would be used as a tool to punish judges merely for coming to a conclusion that he does not like. That is certainly not what Newt is arguing for in his position paper.

Jazz cites approvingly to an attorney blogging at OTB, Doug Mataconis, who opines:

In his position paper, Gingrich engages in a wholesale attack on the structure of American government as established in the Constitution, and as it has existed for the past two centuries, proposing to replace it with a system where majorities are given even more control over the levers of state while minorities are increasingly denied access to the one branch of government most likely to protect them from a rapacious and oppressive majority. It is an attack on the Constitution, on the Rule Of Law, and on individual liberty. The fact that it received so many cheers last night is very disturbing.

To call that analysis overheated, one sided and, indeed, superficial would be overly kind. As I've enumerated above, a Supreme Court that acts as a super-legislature presents a clear and present danger to our nation. What Shaw and Mataconis are arguing for is preservation of a system already broken and being misused to work fundamental change to our Constituion. Newt isn't advocating destruction, he is advocating repair. Nor is he advocating subjective control over the Courts, he is demanding fidelity to the Constitution as it was written and approved.

What Gingrich needs to advocate is passage of a law limiting the scope of a Court's use of authority to decide future cases, on one hand requiring that all Courts give the highest possible priority to the original intent of the drafters, while on the other hand proscribing use of "evolving standards" of society and foreign law to decide cases of Constitutional law. Now, can activist judges get around the above standards with a bit of creativity. Sure, but it would make it much harder and the devices they use would be far more obvious, thus opening themselves up to punitive measures in cases where the failure to adhere to published standards is clear and convincing. I would note that such a law would require careful analysis of the 200 plus years of existing precedent to see where wholesale application of originalism would throw our nation into chaos, such as in a total return to the original meaning of the Commerce Clause. That is an issue that would have to handled with careful guidance from the legislature. That said, such a law would go a long way to furthering Gingrich's effort to reestablish the Constitutional balance with the Courts as a co-equal branch of government rather than an extra-constitutional super-legislature.

Newt skips advocating for such a law among his suggested fixes, which is a gaping omission. He does, however, favor laws that would limit the jurisdiction of Federal Courts - something which has a long history and would go a long way to limiting the Court's ability to impose new social policy.

Newt is drawing a tremendous amount of fire for many of his other suggested fixes, such as abolishing entire Courts and using the power of the purse to prevent enforcement of decisions. These do indeed seem actions fraught with problems of their own. But this is a first draft.

The hue and cry being raised against Newt's plans seem to be largely an attack on taking any action to redress the Constitutional balance. But Newt has this exactly right. Something must be done to end our Court's tyrannical reign. It does threaten the very fabric of our society.

Update: Welcome Larwyn's Linx readers.

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