Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
On Judicial Incoherence
The primary difficulty is in knowing where to start. A consistent run of luck continues to have me in the driver’s seat of an 18-wheeler when news breaks that our philosopher-kings on the Supreme Court have hurled yet another thunder bolt toward the benighted masses for the purpose of jolting us from our fixed creeds and established truths, directing us to trade in the accumulated wisdom of human experience for the latest epiphany of a gaggle of lawyers.
I was somewhere between Memphis and Little Rock, navigating potholes that Evel Knievel would have used ramps to cross, when I learned that Chief Justice Roberts’ restless mind had pondered the words, “established by the State,” and discovered that they actually mean, “not established by the State.” “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” explained Roberts. Uh huh. Well, yes, and Congress passed the National Prohibition Act of 1919 to ban the sale of alcoholic beverages, not to midwife organized crime, but it is not the legal prerogative of the Supreme Court to protect the legislature from the effects of its own laws.
Besides, if the Chief Justice wanted to deduce the intent of the Affordable Care Act in this regard, he had merely to consult the words of its architect, Jonathan Gruber, who said in 2012, “[I]f you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. …I hope that’s a blatant enough political reality that states will get their act together…” But robed demigods are not interested in the intent or the plain meaning of the words, “established by the state.” Instead, Roberts’ focus was fixed on salvaging what Mark Steyn calls the “push-me-pull-you” monstrosity of Obamacare rather than his solemn duty to determine the constitutionality of the law as written. So he engaged in intellectual high jinks, literally rewriting the law (as he previously did when changing “penalty” to “tax”), and performed such mental gymnastics as required to affirm for the second time your fundamental right to be subservient to the federal government in matters effecting your health and, indeed, your life and death. Thus passeth another late June morning in post-constitutional America.
The following day, traveling on the same wretched stretch of highway, I learned of John Roberts’ exasperated distress that Justice Kennedy had exercised prerogatives for which there was no legal basis, i.e., “…the right to make a state change its definition of marriage,…” “Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim,” thundered the guy who the previous day treated the Constitution as a mere speed bump on the road to utopia. My first thought was, “How the hell would he know?” The man unblushingly rewrote existing law twice on his curious odyssey as an unelected legislator, and here he was railing against Justice Kennedy? Is he schizophrenic? Is he working out some trans-ideological issues? Whatever his problem, it is We The People who are getting the judicial shaft.
To summarize then, we have a President who openly brags that he has a pen and a phone, which he uses to force his will on us in those areas where our elected representatives decline his fundamentally transformative prescriptions. Meanwhile, we have a Supreme Court that seizes for itself the right to reword existing law, and to pluck out from the text of the Constitution “fundamental” rights that were never there and never intended, reaching into the democratic process in one great swipe to override and invalidate the considered decisions and deliberations of American citizens in all 50 states. Even so, the one branch with the Constitutional charge to legislate sits stupidly, ceding its power of the purse on one hand, surrendering its power of treaty ratification with the other, ignoring its power to expand or restrict judicial jurisdiction, preferring instead to punish the half-dozen or so constitutionalists in its ranks while belittling Americans who take the Constitution seriously. We fought George III over less than this.
Well then, how’s this for starters? “SECTION 1: No person may serve as Chief Justice or Associate Justice of the Supreme Court for more than a combined total of twelve years.”
And there’s more where that came from:
SECTION 2: Immediately upon ratification of this Amendment, Congress will organize the justices of the Supreme Court as equally as possible into three classes, with the justices assigned to each class in reverse seniority order, with the most senior justices in the earliest classes. The terms of office for the justices in the First Class will expire at the end of the fourth Year following the ratification of the Amendment, the terms for the justices of the Second Class will expire at the end of the eighth Year, and of the Third Class at the end of the twelfth Year, so that one-third of the justices may be chosen every fourth Year.
SECTION 3: When a vacancy occurs in the Supreme Court, the President shall nominate a new justice who, with the approval of a majority of the Senate, shall serve the remainder of the unexpired term. Justices who fill a vacancy for longer than half of an unexpired term may not be renominated to a full term.
SECTION 4: Upon three-fifths vote of the House of Representatives and the Senate, Congress may override a majority opinion rendered by the Supreme Court.
SECTION 5: The Congressional override under Section 4 is not subject to a Presidential veto and shall not be the subject of litigation or review in an Federal or State court.
SECTION 6: Upon three-fifths vote of the several states legislatures, the States may override a majority opinion rendered by the Supreme Court.
SECTION 7: The States’ override under Section 6 shall not be the subject of limitation or review in any Federal or State Court, or override or interference by Congress or the President.
SECTION 8: Congressional or State override authority under Sections 4 and 6 must be exercised no later than twenty-four months from the date of the Supreme Court rendering its majority opinion, after which date Congress and the States are prohibited from exercising the override.
The above proposed Constitutional amendment represents but a small portion of the keen reflection and painstaking analysis in Mark Levin’s magisterial book, The Liberty Amendments, and represents perhaps the best (and last) chance we have to reverse the slide to national oblivion.
In Federalist 47, James Madison observed that,
[T]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.
Such is our condition today. But the nation’s Founders and the Constitution’s Framers are falling out of favor these days, Alexander Hamilton having recently been evicted from the $10 bill, so perhaps we can reach back a bit further to Charles de Montesquieu, whose 1748 work, The Spirit Of Laws warned that:
When legislative power is united with executive power in a single person or in a simple body of magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. Nor is there liberty if the power of judging is not separate from the legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator.
As news stories reference various initiatives designed to ignore or somehow nullify federal rulings, I find myself entirely sympathetic with those who have had enough of this lunacy and who are willing to draw a line in the sand. And so I respectfully tender my suggestion that their considerable energy might be well invested instead in the corrective measures the Framers themselves provided in the Constitution. Article V provides the means to take such ideas as are listed above, deliberate them, improve upon them or replace them with better ideas, and implement them in a way that totally bypasses a federal government that has become despotic and is utterly incapable of repairing itself.
In his Second Treatise on Civil Government, John Locke noted that:
…[F]reedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power [emphasis mine] erected to it; a liberty to follow my own will in all things, where the rules prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature.
I’ve lived my life as a free man, obedient first to my God, faithful to my family, loyal to my country, and mindful of the lessons of human history. That I and others have been able to choose and pursue this path is the ideal to which generations of Americans, including those whom we will honor this Fourth of July, devoted, as Lincoln reminded us, the last full measure of their devotion. May we be as dedicated in utilizing the rights of redress they provided as they were in securing those rights for us.
Published in General, Law
Speechless. In awe. Grateful. Were this a beer commercial you would hear me say, “I love you, man.”
Dave, I got so orneryfied ‘tuther day I smashed open one of them red boxes you got up there. The contents, however, had been sealed up in in a hard plastic case more resistant to opening than any $2 item at Walmart.
A bright yellow label indicated: “Mandatory Discard! Device has passed use-by date.” It had the Seals of the DOJ, the White House and Homeland Security.
Roberts doesn’t like overturning laws. Not obamacare, not state marriage laws. That’s the “consistency” of his approach, whether we agree with the details. I think both his Obamacare decisions are dubious but frankly the second one was invited by a poorly written law.
The weight given to precedent, the principle stare decisis, is explicitly to preserve consistency. The intent there is to provide a stable legal environment, to avoid caprice.
That is the one thing we can say is no longer working at all. Not only has the court come unmoored form the Constitution, it is unmoored even from itself, and now bounces incoherently from whim to whim.
This is tyranny, this is not legitimate, and I do not recognize the validity of much of what is happening — an unconstitutional law is not a law. No amount of intermediate steps can square this circle.
Prudence and a healthy respect for the principle of law require that in general we follow the law even in its ridiculous details and onerous burdens. But where an opportunity presents itself to be effective through ethical resistance to a post-constitutional government, that is a duty.
The threshold of government infidelity has long been breached — we are ruled by worms. The relevant thresholds for action are effective circumstances, a good plan, and stout hearts.
The Constitution is the property of the people, not the government. The government is literally the creature of, a thing created by, the Constitution, and therefore not its master and certainly not ours.
This is bone-simple but profound. The Constitution is a license to disestablish an unconstitutional government. The government departs from the Constitution at its peril, not ours.
Civil disobedience is triage.
Article V is mercy.
Voting for the same old same old is idiocy — or worse.
This is the kind of safety mechanism we need for the court, if only the Congress would use it.
A great many of our problems come from amendments to the Constitution. We should be removing, not adding amendments, including the 22nd amendment limiting Presidential terms (in my opinion it would be far better to beat Obama at the polls than to have him simply retire). Many of our problems also come from the unwillingness of Congress to do its job, both as writers of laws and overseers of the administration, which will not be changed by Levin’s proposal. The remedy for the Obamacare decision lies in Congress, the same Congress that would be expected under Levin’s proposal to overturn the decision. The remedy for the Obergefell decision is much more complicated, because it will require an effort by legislatures and the courts and, above all, the citizenry. Democracy is slow and messy and, at times like this, scary, but tinkering with the Constitution has not gotten us where we want to be.
With respect, Article V doesn’t tinker with the Constitution. It is part of the Constitution and allows us, with Constitutional framework, to restore representative government. When all three branches legislate, the people have been effectively disenfranchised. The proposed Amendment I mentioned, above, is but one of several that redress the balance in the citizen’s favor, taking Washington DC out of the equation completely. Note please that should Congress refuse to overturn a bad decision (totally predictable), a provision remains for the state legislatures to step in and do so thereby providing a check on judicial overreach and bypassing the beltway crowd altogether.
Seems to me at least like a consistency that is inconsistent with his oath. No doubt the law was poorly written (and barely read for that matter), but his authority to go in and re-write it is exactly zero.
The law is essentially about language and logic of which the court is willfully ignorant of both.
Our problem, as I see it is that the “law” has become lawless.
The biggest challenge for me has been convincing conservatives that this is the way to go… But they balk and retort that they don’t want to rewrite or abandon the constitution
How does one misconstrue a convention of states as something other than supporting constitutionalism
A convention of the states would be of, by, and for the constitution.
I wish I had half your skill at expressing my thoughts so clearly! My poor scribblings pale in comparison. When someone, such as a supposedly learned man as justice Roberts, can’t see the truth so plainly written as the last aca case, & has so much written & spoken (Gruber’s videos) evidence, we are surely ‘down the rabbit hole’. And the SSM ruling flies in the face of the people’s will (California’s Prop 8, & other states’ ballot results). Roberts’ about-face on his 2003 Texas position boggles the mind. Holding his kids’ illegal adoptions over him seems odd—we all ‘know’ about it now, so what else have ‘they’ got on him? Hope this isn’t too confusing, the way I ran my thoughts together!
Since I cannot hold a candle to Mr. Carter, I will reach into by bag of favorites and let another very smart person mock Chief Justice Roberts, his “restless mind” (oh, that is a very generous description of it), and almost everybody involved in the PPACA debacle from quite some time ago:
[continued]
[continued]
I’m not sure even the good Chief Justice could get that last line out with a straight face. But then again, he doesn’t really have to. We are bound by his decisions no matter how much he and other members of our Ruling Class giggle upon handing them down.
***OK, this really isn’t about PPACA and, yes, I’ve used this one before here on Ricochet: http://ricochet.com/archives/a-slightly-wider-view-of-the-great-american-mistake/
Dave,
This was a beautifully written and inspiring piece. I would add only one topic. Supreme Court Justice Samuel Chase was Impeached by the House of Representatives very early on in our History. He stood trial in the Senate but was acquitted. The issue of the exclusive power of the Supreme Court for Judicial Review was really what the case was about. Jefferson didn’t like it and felt it gave them too much power. This was not the view of almost everyone else.
It is a very long time since Samuel Chase was Impeached. Since that time, I think a great many people have realized that without taking away the exclusive power of Judicial Review the Court is exercising far too much power and has a become a means of subverting the Constitution and the People’s will. Now may not be the time but at some point in the future this series of Judicial Overreach Travesties of Justice may end in an Impeachment of one or more Justices. On this future date the Senate may very well bring in a conviction.
Regards,
Jim
I hadn’t seen your original post. Thanks for including that and for referencing those remarks.
Congress also has the constitutional power to narrow the scope of judicial jurisdiction, putting certain areas off limits. They could have done that on the marriage issue, for example. It speaks volumes when not a single little tin pot dictator on the planet, from the little dweeb in North Korea to the 7th century barbarians in ISIS, is presently afraid of President Obama — that indeed, the only people who are afraid of him are currently leading the Republican party.
As you correctly note, impeachment is not even an option, and they certainly won’t muster the fortitude to seriously exercise any other constitutional prerogatives. Which brings me again to Article V.
Thanks Jim.
As Ever,
Dave
Dave, thanks for saying so much better what I have been feeling since this whole thing happened, which is that Article V is really our only remaining hope.
I really do appreciate your thoughtfulness here and what you write deserves attention, but to your point, amending the amending process is certainly changing the Constitution. Moreover, Levin’s proposed amendment goes well beyond Article V.
Thanks, Sandy. We appear at a polite crossroads here, and without meaning to come across as antagonistic, I’m simply not seeing where following the amendment process as prescribed is an extra-constitutional exercise. If you haven’t had a look at Levin’s book, I’d encourage you to at least read the first the chapter. Meanwhile, I would also respectively point out that the Constitution is being changed everyday by a Court run amok, by a President who employs his pen to write law himself, and by administrative agencies that already write far more laws that even Congress itself. We currently have a running Constitutional Convention that rules against the consent of the governed and that we the people are literally powerless to effect. And simply pulling the lever for the guy with an “R” next to his name isn’t working, as they say one thing to get elected and then do the opposite. Did you have another alternative in mind?
Again, thanks for engaging on this. I wish more people would take the time to consider the current morass.
(Edited for bone-headed grammatical issues that occur when I write without finishing the morning’s first cup of coffee.)
Dave, you’ze my hero. If I could get rid of my multi-faceted bone-headedness after only one cup of coffee…wowzah!
Dave, thanks for your consideration, as always. At heart my problem is with a weak and corrupt Congress, which I don’t think is addressed by Levin’s proposal. How will his amendments undo the tyranny of administrative law-making? Congress has the power to change this and won’t. I’ll have to cry “uncle” on the question of my own alternatives, but I certainly will give more thought to Levin’s. Perhaps we could get a law podcast on this.
From the book, with respect to administrative law-making:
Please note that affirmative steps are required to keep these agencies in existence in the first place, and that regulations over a given dollar amount require further affirmative steps, or else the regulations cannot be implemented. So Congress can’t just sit and watch the Administrative State go on auto-pilot. They will be required to ratify the agencies’ actions and, indeed, the agencies continued existence.
One cup, in an I.V. bag.
Dave,
Excellent thoughts. When this all came down from the SCOTUS I hoped there would be a group of state governors with the courage to immediately address their states and Congress with a statement of “nullification” regarding the court’s same sex marriage ruling. The definition of marriage has been and rightly remains a state prerogative. It’s time for state leaders to tell Washington to “go pound sand”.
The courts overreach is a big deal and the ramifications are enormous. Seems I recall that the people who settled this great country were motivated to leave England for religious freedom reasons. But then, my teachers and parents may have made that whole thing up.
Vaquero
“We fought George III over less than this.”
Yes.
I loved reading Scalia’s dissent in Obergefell. He used a few choice words to make his point, some of which could have been found on the pages of Ricochet. A bit more dripping with sarcasm than your average dissent.
His final sober thought:
“With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”