“A constitution defines and limits the powers of the government it creates. It therefore follows, as a natural and also a logical result, that the governmental exercise of any power not authorized by the constitution is an assumed power, and therefore illegal.” — Thomas Paine (1737-1809) US Founding father, pamphleteer, author 1805
Within the space of just 48 hours, the United States Supreme Court ruled that the president is above the law; that straightforward statutory words may be twisted to mean the opposite of what they say; that discrimination — heretofore, the textbook example of a willful act — can be committed unconsciously, thereby supplanting our constitutional foundation of equal opportunity for all with the totalitarian’s dream of guaranteed outcomes for favored factions; and that five politically unaccountable lawyers, by dint of being issued robes, may impose their vision of the good society on 320 million Americans, reimagining our most basic institutions, our founding law, centuries of jurisprudence, and millennia of civilization.
Like millions of Americans, Senator Ted Cruz (R., Texas) thought this was a disastrous couple of days for the country. So did the rest of the Trumped-up cavalcade of GOP presidential hopefuls — or, at least, they said they did. Cruz, however, undertook to do something about it. He proposed an amendment to the Constitution that would subject the justices to retention elections. “No social transformation without representation” adjured Justice Antonin Scalia in dissent from the five-justice diktat that 50 states end their democratic debate and redefine marriage to include same-sex couples. At least for now it is “couples.” No coherent limiting principle stops Justice Anthony Kennedy’s rendition of “All You Need Is Love” from devolving into “Why Don’t We Do It in the Road?” — and yes, for the modern Supreme Court, Lennon and McCartney are more apt than Blackstone and Story to shed light on the countless ways we might “enjoy liberty as we learn its meaning.”
Cruz’s amendment simply takes up Scalia’s suggestion. Our would-be overlords would be required to account to us if they wanted to continue ruling us. Here at National Review last week, the senator outlined his proposal: The justices would face the voters every eight years, earning retention only if they are approved by a popular national majority plus majorities in at least half of the states. For this, Cruz has drawn the ire of the estimable George Will. The columnist lambastes the senator for trying to “turn the court into a third political branch” over “what he considers” the justices’ “political behavior.”
Well, Homer nods.
My abiding respect for him notwithstanding, Will has this one exactly backwards. What Cruz considers to be political behavior? Considers? Alright, let’s “consider” the same-sex marriage ruling. In an opinion dutifully joined by the Court’s four “progressive” justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), Justice Kennedy ruled that the states were powerless to define marriage for themselves because our Constitution makes its definition a federal question — the answer to which Kennedy purported to find in a remote Fourteenth Amendment penumbra that had gone unexplored lo these 147 years.
But hold on: Just two terms ago, the jurisprudential blink of an eye, the same Anthony Kennedy writing for the same four progressives, ruled that the federal government was powerless to define marriage because our Constitution makes its definition a state question — the answer to which was for the people of each state to work out for themselves. This breathtaking shift can be explained only by politics. It is not law. Law is obliged to be rigorously logical and consistent. It is in politics — the realm of opportunism, compromise, and the swerves of popular passion — that logic and consistency are merely an option, and often not even an aspiration.
The issue in 2013 was the Defense of Marriage Act, which progressives despised because it cut against the campaign to promote same-sex marriage in the states. The issue last week was the decision of several states to reaffirm marriage as traditionally understood, which progressives despised because it cut against the campaign to mandate same-sex marriage in the states. The legal rationales for the two decisions cannot be squared, but the legal rationales were beside the point. The Court was doing politics, through and through.
As I pointed out last weekend, the Court’s four progressives are not jurists applying legal principles to resolve cases. They are a voting bloc of super-legislators, implementing an ideological agenda. In tandem with Kennedy and Chief Justice John Roberts, who walk on the wild side when personal or political calculation so dispose them, The Four prescribe policy that hundreds of millions of people — people who have no cases before the Court — are expected to accept without recourse. In this, The Four are indistinguishable from, say, the Congressional Black Caucus . . . except that the Caucus must account to its constituents and cannot, under the guise of “constitutional interpretation,” proclaim its pieties as the last, unreviewable word on whatever subject.
Cruz is not “turning the court into a third political branch.” Will has mistaken the coroner for the surgeon. The Court already is a third political branch. Cruz is trying to rein it in the only way a political branch gets reined in: by requiring political accountability. Will frets about what would become of the high court’s “prestige” if its incumbents were subjected to elections. But the point is not the justices’ amour-propre. The Court’s prestige does not owe to the jurists’ insulation from electoral politics; it owes to their function in our system: the dispassionate reading of legal texts and application of developed legal principle. That function, not concern over spectacle, is why justices are not subjected to the ballot box.
And it is that function that the Supreme Court no longer performs. How, Will wonders, would a politically accountable Court “stand athwart rampant executives and overbearing congressional majorities”? When Will wrote those words, the ink was not yet dry on the Court’s Obamacare ruling, which upheld a rampant executive rewrite of a law rammed through Congress by an overbearing majority. Yet it is somehow not parody.
Will is surely right to be concerned about the specter of national judicial elections. I suspect they would be less harrowing than he supposes. Cruz is not talking about having justices run against each other for office. At issue would be whether a justice’s record warrants retention on the bench; if he or she were voted out of office, that would create a vacancy that would have to be filled in the familiar manner outlined in the Constitution. This would not be an election between candidates, each making commitments to this and that interest group in hopes of edging out the rival. It would be a referendum on the American people’s conception of the judicial role and the justice’s fidelity to it. Of course it would be better if we did not have to do something like this. It would be better if Congress and presidents had used their constitutional appointment and impeachment powers to make clear that judges were expected merely to judge (a hard enough job). It would be better if Congress had used its constitutional control over the judiciary’s jurisdiction to minimize the opportunities for judicial imperialism.
But they have not. Thus, as reformer types like to say, the system is broken. Cruz did not break it; the justices did, with lots of help. Cruz is trying to fix it: proposing a political check to pressure a politicized institution into reverting to the Court Will is nostalgic for — the nonpolitical branch that fortifies limited government. Conservatives, it should be stressed, are not asking for a Supreme Court that imposes our vision of marriage and market-based health care, or that excuses discrimination when it actually occurs. We are asking for a Supreme Court that upholds the constitutional framework of divided government; that assigns law- and policy-making to the people’s representatives at the state or federal level, depending on the subject matter; and that upholds the liberty guarantees that are actually in the Constitution, rather than degrading them in an arrogant exploration of “existence, of meaning, of the universe, and of the mystery of human life.”
We are asking to go back to ruling ourselves. — Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.
Source: National Review
Related links to the article:
SideBear: Cruz’s idea has some sound merit to it as it would put control of the court into the people’s hands.
In yet another wretched foreign policy failure, Barack Obama’s much-maligned effort to undercut world secure by allowing the terror state of Iran to go nuclear is about to go belly-up and miss the June 30 deadline for completion.
Of course, Obama and the mainstream media conspirators will spin the latest failure as yet another great foreign policy victory for The One and his crippled Secretary of State, the non-effervescent, uninspiring and uninspired John Kerry.
Come to think of it, perhaps Obama’s latest dud failure should, in fact, be considered a win in the perspective of “Better NEVER than late,” as all of Obama’s policy initiatives should judged?
Whom, then, should get the credit for diffusing the most illogical, stupid, irrational idea to erupt from Obama’s dulled intellect in at least a week or so?
Be it John Kerry’s broken leg? Or Supreme Leader Ali Khamenei’s last minute demands and absolute refusal to allow western inspections of Iranian sites?
Or just chalk it up to serendipity, and good Karma for America!
Whatever, it looks as though the highly-touted surrender to the terrorist state of Iran by Barack Obama and his gimpy top diplomat will be delayed.
As reported at the reference:
A senior U.S. official acknowledged Sunday that Iran nuclear talks will go past their June 30 target date, as Iran’s foreign minister prepared to head home for consultations before returning to push for a breakthrough.
Iranian media said Mohammed Javad Zarif’s trip was planned in advance. Still, the fact that he was leaving the talks so close to the Tuesday deadline reflected his need to get instructions on how to proceed on issues where the sides remain apart – among them how much access Tehran should give to U.N. experts monitoring his country’s compliance to any deal.
The United States insists on more intrusive monitoring than Iran is ready to give. With these and other disputes still unresolved, the likelihood that the Tuesday target deadline for an Iran nuclear deal could slip was increasingly growing even before the U.S. confirmation.
The dispute over access surfaced again Sunday, with Iranian Gen. Masoud Jazayeri saying that any inspection by foreigners of Iran’s military centers is prohibited.
He said the attempt by the U.S. and its allies to “obtain Iran’s military information for years … by the pressure of sanctions” will not succeed.”
The greatest angst seems to come from the west, where Barack Obama’s tenure as president is rapidly ending and Obama is in a full-court press to establish a foreign policy legacy that will rival his destructive efforts on domestic issues such as immigration, race relations, and economic growth.
With any decent luck at all, “Better NEVER Than Late” will get us through Obama’s ruinous tyranny and into the sunshine sure to bless we the people on January 20, 2017!
The U.S. Supreme Court’s ruling on the redefinition of marriage seals the end of America as the Founders envisioned it.
From well before 1776 until the second half of the 20th century, the moral values of the United States were rooted in the Bible and its God.
Unlike Europe, which defined itself as exclusively Christian, America became the first Judeo-Christian society.
The American Founders were Christians — either theologically or culturally — but they were rooted in the Hebrew Scriptures.
Even Americans who could not affirm traditional Christian or Jewish theology affirmed the centrality of God to ethics.
Americans, from the Founders on, understood that without God, there is no moral truth, only moral opinion — and assumed that those truths were to be gleaned from the Bible more than anywhere else.
All About Feelings Now
Beginning with the Supreme Court’s ban on nondenominational school prayer in 1962, the same-sex marriage decision has essentially completed the state’s secularization of American society. This is one thing about which both right and left, religious and secular, can agree. One side may rejoice over the fact, and the other may weep, but it is a fact.
And what has replaced Judaism, Christianity, Judeo-Christian values and the Bible?
The answer is: feelings. More and more Americans rely on feelings to make moral decisions. The heart has taken the place of the Bible.
Years ago, I recorded an interview with a Swedish graduate student. I began by asking her whether she believed in God. Of course not. Did she believe in religion? Of course not.
“Where, then, do you get your notion of right and wrong?” I asked.
“From my heart,” she responded.
That is why five members of the Supreme Court have redefined marriage. They consulted their hearts.
That is understandable. Any religious conservative who does not acknowledge homosexuals’ historic persecution or does not understand gays who desire to marry lacks compassion.
But let’s be honest.
This lack of compassion is more than matched by the meanness expressed by the advocates of same-sex marriage. They have rendered those who believe that marriage should remain a man-woman institution the most vilified group in America today.
It is the heart — not the mind, not millennia of human experience, nor any secular or religious body of wisdom — that has determined that marriage should no longer be defined as the union of a man and a woman.
It is the heart, not the mind, that has concluded that gender has no significance.
That is the essence of the Brave New World being ushered in. For the first time in recorded history, whole societies are announcing that gender has no significance.
Same-sex marriage is, above all else, the statement that male and female mean nothing, are completely interchangeable, and, yes, don’t even objectively exist, because you are only the gender you feel you are.
That explains the “T” in “LGBT.” The case for same-sex marriage is dependent on the denial of sexual differences.
It is the heart, not the mind, that has concluded that all a child needs is love, not a father and mother.
And therein lies one of the reasons that the notion of obedience to religion is so loathed by the cultural left. Biblical Judaism and Christianity repeatedly dismiss the heart as a moral guide.
Moreover, the war to replace God, Judeo-Christian values and the Bible as moral guides is far from over. What will this lead to?
Here are three likely scenarios:
1. Becoming more and more like Western Europe, which has more or less created the first godless and religion-less societies in history. Among the consequences are less marriage and the birth of far fewer children.
2. More and more ostracizing — eventually outlawing — of religious Jews and Christians, clergy and institutions that refuse to perform same-sex weddings.
3. An America increasingly guided by people’s hearts.
If you trust the human heart, you should feel confident about the future. If you don’t, you should be scared. Judeo-Christian values have made America, despite its flaws, uniquely free and prosperous and the greatest force for good in the world.
Without those values, all of that will change.
Source: Investor’s Business Daily: