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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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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NYT Op-Ed: Let's Give Up On The Constitution

Harvard educated Georgetown Professor of Constitutional Law Louis Michael Seidman has penned an op-ed in the NYT - Let's Give Up On The Constitution. He trashes the Constitution and argues for pure judicial activism - i.e., that judges disregard the original intent of the Founders who wrote and voted on the Constitution in favor of whatever the judge believes is the better solution. He is arguing for a dictatorship of the judiciary. If this is the tripe being taught to our best and brightest young minds, we as a nation are indeed in trouble.

According to Seidman, our nation is dysfunctional because of "our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions." As he sees it, "instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago."

Rather than get into the weeds of Seidman's many fatuous arguments, it is enough to address Seidman's penultimate argument - that we should at a minimum reduce the Constitution to a mere starting point for discussion of what policies our nation should implement. For, according to Seidman, if we as a nation can't at least do that, than . . .:

. . . perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

Seidman argument is the purist of deceits. Our judiciary claims the power - granted nowhere in the Constitution - to be the final arbiter of what the Constitution means. The Courts are not the starting point for debate, they are the end point of debate. And if our Judges have no fidelity to the Constituion, then what we are left with is a totalitarian state, where unelected judges are free to impose on our nation whatever policy they wish. That is anything but democracy.

Our Founders provided in our Constitution two separate means by which the people could alter or amend it. It is a measure of Seidman's extreme intellectual dishonesty that he studiously ignores that fact in his arguments, though it is not hard to guess why. Neither of those means of amending our Constitution - used many times over the past 200 plus years - involve Seidman's preferred solution of amending the Constitution by the unilateral decisions of unelected judges.

Twenty years ago, no mainstream professor would dare to have made an argument such as Seidman makes - not merely because it is fatuous, but because it ultimately an attack on the very core of our nation. But today, the progressive left is ascendant and they are taking no prisoners. They wish to remake our nation into a bureaucratic socialist state - a state left with only a bare patina of democracy to keep the unwashed masses fooled. Why not, if the nation can buy that Obama deserved re-election or that the right is at "war with women," they can be fooled by anything.

Update: I note that the Volokh Conspiracy make many of the same arguments as I do above in assessing Seidman's piece of progressive tripe.

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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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A Historical Perspective On Religion & Obama's HHS Mandate

This is the third part of a three part essay. Part 1 examined the original intent of the Founders in passing the Free Exercise clause. Part 2 looked at the current state of the law surrounding that clause.

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The first thing to understand about the Department of Health and Human Services’ birth-control mandate, and the last, is that it is an assault on both faithful Christians and the Constitution by leftists who consider themselves at “war” — their word — with bourgeois America. It has nothing to do with guaranteeing access to contraceptives, sterilization, and abortifacients.

Andrew McCarthy, The Contraceptive Mandate’s Shaky Justification, NRO, 11 Feb. 2012

Virtually all laws, at least beyond those that are purely administrative or relating to health and safety, are moral choices of one sort or another. They set the outer bounds of what is morally acceptable or required in our society. So it is no surprise that when Obama speaks of his latest mandate to require all health care plans to provide free contraception, sterilization and plan-B abortion for women, he does so in the language of morality – to fail to force this mandate on religious employers will, he says, “discriminate against women.”

For most of the past two millenium, the moral source of our laws in Western civilization has been the Judeo-Christian ethic. It has provided a stable and immutable framework for morality at the heart of Western civilization - one that places the greatest importance on the sanctity of individual human life. And, as many have noted, it likewise provided the basis for our nation:

Nineteenth century historians wrote extensively on the United States of America having a distinctively Protestant character in its outlook and founding political philosophy. . . .

The notion of a distinctive religious basis for American democracy and culture was first described and popularized by Alexis de Tocqueville in the 1840s, in his influential book, Democracy in America. In the second chapter, de Tocqueville describes America's unique religious heritage from the Puritans. His analysis showed the Puritans as providing the foundational values of America, based on their strong Hebrew Bible view of the world, which included fighting for earthly political justice, an emphasis on laws and education, and the "chosenness" which the Puritans identified with, giving them a sense of moral mission in founding America. As de Tocqueville observed, the Puritan's biblical outlook gave America a moral dimension which the Old World lacked. De Tocqueville believed these biblical values led to America's unique institutions of religious tolerance, public education, egalitarianism, and democracy.

And to the end of protecting religion in our country, our Founders wrote into the Bill of Rights that Congress could pass no law prohibiting the “free exercise” of religion. As Thomas Jefferson wrote at the time, that meant that Congress's legislative power did not extend to “rights of conscience,” only to affirmative acts taken under the color of religion that threatened the peace. And as I have noted here, the Catholic Church teachings on artificial birth control and abortion have been doctrinal matters of conscience that far predate the signing of our Bill of Rights and, indeed, extend back into antiquity.

Ironically, almost at the same time as Jefferson and Madison were crafting our First Amendment, half a world away, Christianity's mortal enemy, socialism, was being born in the crucible of the French Revolution. One of the first acts of the Revolutionary government was to initiate a systematic and brutal war on the Catholic Church and its clergy. As recounted at the American Spectator:

The secularists of the French Revolution regarded the Roman Catholic Church as the last obstacle to atheism's final triumph. Blurting this out, the French dilettante Denis Diderot proposed to his fellow revolutionaries that they strangle the last priest with the "guts of the last king."

Socialism is a radical ideology that sprang up largely in response to the ills of the industrial revolution. The goal of socialism is to deconstruct traditional Western society and remake it under the auspices of an omnipotent government that would use its police powers to create a new order of ostensible social and economic equality. Socialists replace God with government as the source of morality. As one particularly observant commentor at Legal Insurrection recently opined:

In any left revolution, be it progressive, bolshevik, socialist, fascist, maoist, or bolivaran, it is necessary to knock down organized religion. The Catholic Church competes for the hearts and minds of people and does so effectively, as do the evangelical Protestant churches, etc. Further, the Church is organized and so can put out a message of opposition. So at some point the revolution has to take the Church on, or lose.

And yet another immutable truth of history is that, as socialist governments fully consolidate power, they invariably devalue individual human life. Much of the 20th century's history is written in the blood of over 100 million people slaughtered as part of socialist experiments.

Sixty years after the French Revolution, Karl Marx, socialism's greatest philosopher, famously wrote in his Critique of Hegel’s Philosophy of Right that religion is the "opium of the people" and that "[t]he abolition of religion as the illusory happiness of the people is required for their real happiness." The British socialist party wrote in their 1911 manifesto that "it is a profound truth that Socialism is the natural enemy of religion." Lenin, the father of the Soviet Union's bloody experiment in Communism, wrote in 1905, “The modern class-conscious worker, reared by large-scale factory industry and enlightened by urban life, contemptuously casts aside religious prejudices, leaves heaven to the priests and bourgeois bigots, and tries to win a better life for himself here on earth.” Lenin further noted that “every socialist is, as a rule” an “atheist.” And Hitler himself was of like mind - "“National Socialism and Christianity cannot co-exist together."

And lest there be any doubt, there was Dutch socialist philosopher, Anton Pannekoek, who wrote in a 1907 essay - interesting in part for its incredibly naive belief in an incipient socialist utopia:

The socialist teachings have inoculated the laboring class with an entirely new conception of the world. The realization, that society is in a process of continual transformation, and that misery, poverty, exploitation, and all the suffering of the present are only temporary and will soon yield to an order of society, to be inaugurated by his class, in which peace, abundance, and fraternity shall reign, this realization must revolutionize the whole world conception of the laborer from the ground up. The theory of socialism furnishes the scientific foundation for this world conception. Political economy teaches us to understand the internal laws, which move the capitalist process, while historical materialism lays bare the effects of the economic revolution upon the conceptions and actions of people. And this stands irreconcilably opposed, as a materialistic doctrine, to religion.

Socialism arrived on U.S. shores in the mid 1870's. One of its early adherents was the father of Margaret Sanger, the founder of Planned Parenthood. Ms. Sanger, in a 1915 speech to the Fabian Society in London, described her father as “one of the early pioneers of Socialist thought” and noted that she herself was “rocked in the cradle of socialism.”

Sanger ultimately established Planned Parenthood to promote both contraception and abortion. As to abortion, Sanger, a nurse by training who worked among New York City's poor at the turn of the 20th century, saw many poor women suffering from “dangerous and illegal abortions.” In part motivated to help these women, and in part because she was a eugenicist who wanted to limit the birth rate of blacks, she became the leading advocate for abortion.

Sanger's motivation in pushing contraception overlapped with her motives for advocating abortion, but also went far beyond. She wanted to remove from sex any hindrance of ethical and moral limits, and, in order to promote sex among women, make sex free of the physical consequence of pregnancy.

[Sanger judged] the necessity of breaking down the "codes that have surrounded sexual behavior in the so-called Christian communities, the teachings of the churches concerning chastity and sexual purity, the prohibitions of the laws, and the hypocritical conventions of society."

As a consequence, Sanger became a direct opponent of Christianity, especially the Catholic faith, for the Church was the greatest obstacle opposing the release of the "dynamic energy" of sexuality, and such obstruction for Sanger was "nothing less than foolhardy."

"Instead of laying down hard and fast laws of sexual conduct, instead of attempting to inculcate rules and regulations," as the Church had done, "the teacher of Birth Control seeks to meet the needs of the people," she wrote.

Neither Sanger nor socialism itself was part of the original feminist movement. That movement concerned itself with seeking equality before the law for women, as well as securing their right to vote. The feminist movement didn't become radicalized until American socialists adopted feminism in the 1950's and 1960's and, along with American socialism's than recent adoption of the civil rights movement, made radical feminism part of their raison d'etre. It was then that Sanger's goals and ideas became mainstream as part of the “second,” and now “third wave” of the radicalized feminist movement.

The black civil rights movement, though co-opted and bastardized by the socialists in the 1960's, was long supported by the right - indeed, far more so than by the left. Likewise, gender equality and the right of women to be free from discrimination saw bipartisan support. So to the extent that calls for greater protections in these areas were mainstreamed, our nation was able to affirmatively act on them in the 1960's.

(Just as an aside, let me add here that the Socialist left in the U.S. has, in the past two decades, added others to their stable of victim classes that seek to drive Christianity and Judaism from their place in America - the far left wing of the gay rights activists and the political Islamists who dream of a world without Christians or Jews - or for that matter, gays or godless socialists.)

At any rate, the radical aspects of the socialist movement – attacks on religion, as well as pushing for unrestricted abortion and contraception, saw limited success at the ballot box through the mid-20th century. Consequently, socialists turned to the Courts to achieve what they could not through legislation.

In the mid-20th century, the American socialist left used the ACLU - an organization specifically formed to further socialism and communism - to bring a series of Court cases designed to remove religion from the public square and elevate the ethos articulated by Margaret Sanger. The socialists sought judicial activism – and by and large, the Courts complied. Though the Constitution says nothing about abortion or contraception, thus leaving the matters to the states and majority rule by default, the left asked the Court to enshrine abortion and contraception as federal Constitutional rights. Between 1965 (Griswold) and 1972 (Einstadt), the Supreme Court found a “right to privacy” in the “penumbras” of the Constitution such that access to contraception was made a Constitutional right. And then in 1973 (Roe), the Supreme Court, found the same for abortion.

As to religion, it has been under sustained attack by the socialist left through our Courts since 1947 (Everson). wherein the Supreme Court read the 1st Amendment clause prohibiting the federal government from establishing a national church to mean “a wall of separation between Church and State.” Where for almost two centuries there had been fairly substantial involvement of a generic Christianity in the public square, the Supreme Court, in a series of subsequent cases, changed that completely. In 1963 (Engle), the Court ruled prayer in school unconstitutional. In 1989 (Allegheny County), the Court ruled that a creche, prominently displayed in a Courthouse at Christmas, was unconstitutional. In 2005 (McCreary County), the Court held unconstitutional displays of the Ten Commandments in several Kentucky courthouses. But perhaps the biggest victory the left gained through the Court's was the 2002 decision in Lawrence v. Summers, a case seeking to hold Texas's laws against sodomy unconstitutional. Implicit in the holding of that case was a finding that Christian morality, standing alone, is no longer a “rational basis” to uphold our laws. The potential ramifications of that decision have not yet begun to be plumbed.

The election of Barack Obama brought to the White House the first true child of America's socialist movement. And though he nominally claims to be a Christian – he claims conversion not to the words of the bible, but to the political polemics of Rev. Jeremiah Wright – he has also publicly proclaimed that we are no longer a Christian nation. That was an aspirational statement at the time. It is difficult to believe that Obama's Christianity is anything other than a bare patina on his political ambitions.

Regardless, it is no surprise now to see Obama attempting to bring to fruition the socialist goal of weakening religion as an important force in America. With Obama in power, the socialist left has won at the ballot box and need not rely on the Courts, at least for the moment. Obama would see the Margaret Sanger's radical socialism become the moral underpinning of our laws, not merely as an alternative to Christianity as they exist now in our law, but over top of it. That is what Obama is doing with his HHS mandate to force all Christians, including Catholic institutions, to fund healthcare that will provide contraceptives, sterilizations, and plan-B abortion pills free to all women covered by the plan. And for Obama to portray this as a moral good – saying that to do anything else would be to discriminate against women – is simply obscene.

To direct this healthcare mandate at Christians is a raw power play, nothing more and nothing less. If Obama succeeds in this, then indeed, we really will have made the final push into a brave new world. The Courts have raised socialist ethos above religion as the basis of our laws, and now Obama intends to use the socialitst ethos to to significantly drive religion even further from its historic and Constitutionally protected role in our society. Obama's aspirational statement will be made good. For the first time in our history, we really will not be a Christian nation. This is a critical moment in our nation's history.

As I wrote in Part I of this three-part essay, the original intent of our Founding Fathers in passing the Free Exercise of Religion clause should protect the Church from Obama's mandate. And as I wrote in Part II of this essay, the current law surrounding the Free Exercise clause, would also likely find Obama's mandate unconstitutional, though it is far messier given the current state of the law. Let's hope that I am right.

Update: Greg, a former Catholic seminarian and now a history teacher who blogs at Rhymes With Right, believes the time is right for Pope Benedict XVI to respond to this assault on religion with a four part encyclical. Part 1 would be a statement of the proper roles of Church and State. Part 2 would be by-name excommunication of those Catholics supporting Obama's policy, starting with HHS Supervisor Kathleen Sebelius. Greg's suggested third part "ought to be a reminder to American Catholics of the importance of bringing their faith into the public square and voting booth." And lastly, "lest the encyclical be seen as a rejection of the whole idea of health care accessibility, there should be a fourth section reminding the faithful of the Church's continuing devotion to the Corporal and Spiritual Works of Mercy, and that it is for this reason that the many schools, hospitals, and agencies subject to the Obama regulation operate." It sounds eminently reasonable to me. Do visit his site and read the entire post.

Update: Kindly linked at Bookwormroom, Larwyn's Linx and Seraphic Secret.

Update: And kindly linked at the Watcher's Council for this week's nominations.

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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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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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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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Obamacare, Tribal Law & "Judicial Activism"

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be ““difficult to perceive any limitation on federal power" . . . and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

Judge Roger Vinson, Order Granting Summary Judgment, Fla. v. Dept. of HHS, 31 Jan. 2011

I concur with Judge Vinson's decision completely. There is no question that, at the time of the founding, the Commerce Clause was designed solely to prevent trade barriers being erected between the states. Judge Vinson pointed out in his decision that the Supreme Court deviated from the original intent of the drafters by vastly expanding the powers of Congress under the Commerce Clause during the New Deal. But even that expansion has not been unlimited and the Court has never ruled that the Commerce Clause gives the government the power to proactively force people to take actions as a mere consequence of citizenship.

Lawrence Tribe begs to disagree with Judge Vinson in a NYT op-ed. Tribe dismisses Judge Vinson's reasoning out of hand, disingenuously calling the difference between "activity" and "inactivity" a distinction without a difference. He further opines that any claim that Obamacare is unconstitutional is purely partisan politics. Ann Althouse, herself a law professor, has a field day with Tribe's op-ed.

Tribe is very much of the "living Constitution" school, arguing that the Supreme Court justices are free to amend the Constitution per their whim as the "need" arises - and the need always arises when the left wants it to. Think Roe, Boumediene, Perry v. Schwarzanegger. The blogger at Marginal Revolution, responding to Tribe, makes a tongue in cheek argument that the living Constitution could well be used to support the right in this scenario:

“What Tribe forgets is that the constitution is a living document. The constitution’s meaning is not fixed by the New Deal. The constitution evolves to meet the needs of the people in the here and now. Tribe’s interpretation of the commerce clause, which may have been appropriate for the age of steel and iron, is not necessarily right for the age of genes and bytes. We are fortunate, the constitution lives.”

Heh. Perhaps we originalists should be pondering a doctrinal shift.

On a related note, Thomas Sowell does an excellent job of explaining how the left, fully in the spirit of Orwell, is redefining the term "judicial activism"

. . . The new definition of “judicial activism” defines it as declaring laws unconstitutional.

It is a simpler, easily quantifiable definition. You don’t need to ask whether Congress exceeded its authority under the Constitution. That key question can be sidestepped by simply calling the judge a “judicial activist.”

A judge who lets politicians do whatever they want, whether or not it violates the Constitution, never has to worry about being called a judicial activist by the Left or by most of the media. But the rest of us have to worry about what is going to happen to this country if politicians can get away with ignoring the Constitution. . . .

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James Madison On Originalism & Judicial Activism

Doug Ross has a very good post today highlighting the differences between originalism - the proper role of judges - and those who embrace the "living constitution" theory. I've also posted on this topic in The Supreme Court: Originalism, 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. . . .

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. . . .

Doug makes many good points in his post, and I urge you to read it. Most notable in his post was this warning from one of our founding fathers, James Madison:

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.

Truer words were never spoken.

The Constitution contains not one, but two methods by which we, the people, can amend the Constitution. Neither of those methods involve unelected judges deciding to amend our founding document per their whim. Left to their own devices, the Supreme Court has made radical changes to the very fabric of our nation over the past half century. The Supreme Court, unencumbered with any requirement to adhere to the intent of our founder, has been and remains the single greatest threat to the viability of our nation. The solution to this problem is simple, a law - or a Constitutional Amendment - limiting the discretion of judges deciding Constitutional questions to the original intent of the drafters and those who voted to approve our Constitution. That this was not included in Article III of the Constitution was a rare lack of foresight by the drafters of our Constitution.

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Krauthammer & Constitutionalism

Charles Krauthammer, in his column today, explains the larger reasons for reading the Constitution in the House to start the 112th Congress. He also has a warning for the disparaging left. Yes, the move was symbolism, but it was anything but empty symbolism. Rather, it is symbolism attached to an ever growing, still inchoate movement that centers on returning government to something approaching the view of the Founders as expressed in the Constitution:

. . . Americans are in the midst of a great national debate over the power, scope and reach of the government established by that document. The debate was sparked by the current administration's bold push for government expansion - a massive fiscal stimulus, Obamacare, financial regulation and various attempts at controlling the energy economy. This engendered a popular reaction, identified with the Tea Party but in reality far more widespread, calling for a more restrictive vision of government more consistent with the Founders' intent.

Call it constitutionalism. In essence, constitutionalism is the intellectual counterpart and spiritual progeny of the "originalism" movement in jurisprudence. Judicial "originalists" (led by Antonin Scalia and other notable conservative jurists) insist that legal interpretation be bound by the text of the Constitution as understood by those who wrote it and their contemporaries. Originalism has grown to become the major challenger to the liberal "living Constitution" school, under which high courts are channelers of the spirit of the age, free to create new constitutional principles accordingly.

What originalism is to jurisprudence, constitutionalism is to governance: a call for restraint rooted in constitutional text. Constitutionalism as a political philosophy represents a reformed, self-regulating conservatism that bases its call for minimalist government - for reining in the willfulness of presidents and legislatures - in the words and meaning of the Constitution.

Hence that highly symbolic moment on Thursday when the 112th House of Representatives opened with a reading of the Constitution. Remarkably, this had never been done before - perhaps because it had never been so needed. The reading reflected the feeling, expressed powerfully in the last election, that we had moved far, especially the past two years, from a government constitutionally limited by its enumerated powers to a government constrained only by its perception of social need.

The most galvanizing example of this expansive shift was, of course, the Democrats' health-care reform, which will revolutionize one-sixth of the economy and impose an individual mandate that levies a fine on anyone who does not enter into a private contract with a health insurance company. Whatever its merits as policy, there is no doubting its seriousness as constitutional precedent: If Congress can impose such a mandate, is there anything that Congress may not impose upon the individual?

The new Republican House will henceforth require, in writing, constitutional grounding for every bill submitted. A fine idea, although I suspect 90 percent of them will simply make a ritual appeal to the "general welfare" clause. Nonetheless, anything that reminds members of Congress that they are not untethered free agents is salutary.

But still mostly symbolic. The real test of the Republicans' newfound constitutionalism will come in legislating. Will they really cut government spending? Will they really roll back regulations? Earmarks are nothing. Do the Republicans have the courage to go after entitlements as well?

In the interim, the cynics had best tread carefully. Some liberals are already disdaining the new constitutionalism, denigrating the document's relevance and sneering at its public recitation. They sneer at their political peril. In choosing to focus on a majestic document that bears both study and recitation, the reformed conservatism of the Obama era has found itself not just a symbol but an anchor.

Constitutionalism as a guiding political tendency will require careful and thoughtful development, as did jurisprudential originalism. But its wide appeal and philosophical depth make it a promising first step to a conservative future.

The left has, for decades, used an activist judiciary to amend the Constitution and alter our society, moving it ever further from that envisioned by our Founders. I think that we are indeed at a tipping point. Let's hope this "first step" is one of very many.

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