About Me

In writing the "About Me" portion of this blog I thought about the purpose of the blog - namely, preventing the growth of Socialism & stopping the Death Of Democracy in the American Republic & returning her to the "liberty to abundance" stage of our history. One word descriptions of people's philosophies or purposes are quite often inadequate. I feel that I am "liberal" meaning that I am broad minded, independent, generous, hospitable, & magnanimous. Under these terms "liberal" is a perfectly good word that has been corrupted over the years to mean the person is a left-winger or as Mark Levin more accurately wrote in his book "Liberty & Tyranny" a "statist" - someone looking for government or state control of society. I am certainly not that & have dedicated the blog to fighting this. I believe that I find what I am when I consider whether or not I am a "conservative" & specifically when I ask what is it that I am trying to conserve? It is the libertarian principles that America was founded upon & originally followed. That is the Return To Excellence that this blog is named for & is all about.

Tuesday, July 8, 2014

Supreme Court's Function Is To Minimize The Consequences Of Elections

The judicial branch of government is made up of people – just like you & me.  Not superhuman individuals endowed with infinite wisdom but people with normal lives & everyday problems also the same as you & me.  In short, judges are not infallible & that includes the nine Justices who sit on the Supreme Court.  In fact, they can be & quite often are as political as anyone in the other two branches, or again the same as you & me.
Some of the decisions made by the Supreme Court have been terrible. 
In the Dred Scott decision of 1857 the Supreme Court ruled that Blacks could not be citizens of the U.S – within ten years of this decision over 600,000 American soldiers died in the Civil War.  Although the right to privacy is not mentioned in the Constitution - in the Roe v. Wade decision of 1973 the Supreme Court relied on the 1965 Criswold v. Connecticut decision that found a right to privacy ipenumbras formed by emanations allegedly found in the Bill Of Rights that extended to the right to abortion claimed to be within the constitutional protection that the liberty portion of the 14th Amendment affords privacy - accordingly over 50 million abortions have been performed since this ruling.  And of course the ObamaCare decision of 2012 upheld the healthcare law when Roberts joined the four statist justices in deciding that the fine to uphold ObamaCare's individual mandate was indeed a tax in spite of the government's attorney specifically presenting their case to the Court to the contrary.  All three cases are abominations with no legal grounds for support.
Now the above decisions are not based on the Constitution but rather on the personal judgments of as few as five of the nine justices.  The judiciary means to usurp the legislature's authority to represent all Americans throughout the country.  Whether or not you agree with the specific outcome of the above decisions I hope you can see the illegitimacy of how they were enacted & prove to yourself that they were not made by men of tremendous wisdom but rather by everyday human beings who saw a chance to impose their own views on all of us.  Following this prescription is a loser for all of us sooner or later.  This is the potential tyranny of the power of the majority of nine unelected justices if we don't correct the mindset that allowed this to happen to begin with.
There are numerous examples of presidents ignoring Supreme Court decisions.  Judicial activism has been with us since 1803 starting under Thomas Jefferson's presidency when the concept of judicial review (i.e., the Supreme Court determining the constitutionality or unconstitutionality of the actions of the two elected branches) was determined & claimed by master politician & Chief Justice John Marshall as an appropriate function of the Supreme Court.  Jefferson fought this - even literally on his deathbed on July 4, 1826.  Andrew Jackson examined a Supreme Court decision in 1832 & ignored it famously saying, speaking of the same Chief Justice John Marshall, "John Marshall has made his decision, now let him enforce it."  And Abraham Lincoln ignored a Supreme Court decision (the same Chief Justice who upheld slavery in the Dred Scott decision – Roger Taney) regarding Lincoln's suspension of the writ of habeas corpus.
Click here to read the memo from Speaker of the House John Boehner to every House Member in which Boehner says he intends to bring to the House floor legislation that will authorize the House to file suit (to who else but the judiciary) to compel the president to follow his oath of office & faithfully execute the laws of our country.  Boehner (as have I) has grown tired of BO not faithfully enforcing the laws of the U.S. "on matters ranging from healthcare & energy to foreign policy & education."  Boehner's is a short list – please feel free to add your own starting with thousands of destitute children arriving on our southern border.
After quoting chapter & verse from the Constitution in the above memo concerning the president's responsibilities, Boehner writes, with no reference to clauses of the Constitution, "Under our system of government, the Judicial Branch has the power to resolve disputes between the Executive & Legislative Branches."  Of course Boehner does not provide chapters & verses from the Constitution for this statement because there are none.  This means that Boehner is digging a deeper hole than he already is in by perpetuating the mindset that the Courts are the arbiters of all matter.  This memo & strategy provide an overwhelming reason to vote against Boehner & every Member of the House that supports his proposed lawsuit.
The most basic of judicial principles under our Constitution is that there has to be an actual legal dispute with injuries & damages for either one supreme Court or such inferior Courts as the Congress may from time to time ordain & establish to accept.  Of course I am not referring to either of the two elected branches bringing suit, one against the other, because the Constitution provides specific remedies for disagreements to be resolved with the next election being the ultimate decider.
Please refer to The Federalist No. 78 where Alexander Hamilton wrote that the president has the sword & the Legislature has the power of the purse & prescribes the laws but the judiciary has no influence over the sword or the purse.  In essence the founders regarded the judiciary as the weakest of the three branches.  This is the way I learned it as an elementary school student living in Baltimore who made frequent class trips to Washington.
So why do both of the elected branches run to the judicial branch for rulings - one elected branch against the other - thereby giving away their constitutional powers like Boehner is planning to do with the results of the vote on his memo?
Stop & think - who would want to bring a suit to a judicial system where four of nine justices framed the Hobby Lobby case as a decision of whether or not religious views should be exalted over extending free abortion rights for women of childbearing age after these four justices found in favor of the abortion rights argument?  It doesn't take much to tip the scale against you to pick up the 5th justice.
(Readers of RTE who are students of economics know that there are no free abortion rights provided by employers or anyone else – just perceived rights of free abortion.  All compensation is earned by the employees output & productivity – including the cost of abortion benefits – otherwise there would be no job @ all.)
To understand why the elected branches encourage the judicial branch to rule on their fate please begin by recognizing that America has only one big government party & it has two wings – the Democrat & Republican wings.  Each wing will slug it out & take turns being in power as long as they each exist.
The problem with this setup is that elections have consequences & both Democrats & Republicans want those consequences camouflaged or softened as much as possible.  This is where the Supreme Court comes in – minimizing or eliminating the consequences of elections so that the two party (wing) system can continue @ our expense.
This question is all the more perplexing when you consider a case like the recent Hobby Lobby decision in which the nine justices split 5 to 4 in determining whether the court should exalt the religious views of a small number of owners of closed corporations over the abortion rights of every woman of childbearing age – which sums up Justice Ruth Bader Ginsburg's dissenting description of the decision.  Who in their right mind would want to ask these nine people to decide anything?  Talk about a crap shoot.
In the Hobby Lobby case the owners of Hobby Lobby had choices other than going to court to find out how the majority of the justices felt about a law that had been passed by the legislature & signed by BO.  For instance if the terms of the contraceptive clauses written by HHS bureaucrats – not elected reps – were too egregious for the owners of Hobby Lobby they could have gone out of business putting up to 30,000 people who work in their 600 stores out of work – now there is a consequence of the ObamaCare law that would be very obvious for all to see.  Instead five justices found an exception for the owners on religious grounds & the affected women now get their contraceptives by other means.
Hobby Lobby made a mistake in bringing the suit & of course the Supreme Court made a mistake to our liberty by accepting the case.  The same principle applies to the ObamaCare case of 2012 & look what we got – ObamaCare was passed by Congress & signed into law by BO & is still the law of the land but we also have a dangerous legal precedent to boot where the Supreme Court ruled a penalty is really a tax under Article I Section 8 of the Constitution.
But you could say this is just a reasonable compromise instead of the draconian going out of business solution I mentioned.  But little by little liberties are taken from us with one of these decisions after another, with the full consequences of the law being masked by Supreme Court decisions that protect the other two branches of government with the only sure thing being that either a Democrat or a Republican will win the next election with the people being taken for a ride.


  1. Hi Doug - History seems to be on the side of the Presidents when the ends justify the means.

    When the Supreme Court threatened to doom FDR’s New Deal with challenges to the Wagner Act, TVA, and the Social Security Act, FDR proposed a program to pack the court. Consequently, the Court’s challenges were alleviated. FDR had no constitutional authority to pack the Court however, in FDR’s mind his vision for America justified his means.

    In the 19th century the country’s distain for the Indians contributed to Georgia ignoring the Court’s ruling for Indian sovereignty within Georgia’s borders resulting in the “Trail of Tears”. President Jackson blessed Georgia’s action which culminated in Native American Genocide. Here the ends justify the means to prevent a state within a state.

    During Lincoln’s Administration the Court issued a ruling that President Lincoln did not have the authority to suspend habeas corpus. In a July 4 speech, Lincoln was defiant, insisting the ends justify the means in order to put down the rebellion in the South.

    What position would RTE take if existed during the above historical times? The question, of course, is of theoretical interest only, but still fun to ponder. Do the ends justify the means with ObamaCare and his Executive Orders?

    The vision of a President seems to be unconquerable when his determination is guided by what he perceives as right & virtuous. Past Presidents with great visions are remembered. Their determinations made the country into what we know today. History demonstrates when the ends justify the means the constitution is worthless. Therefore, in my opinion, Boehner’s legal action against the President is doomed from the start.

    This outstanding publication is vintage RTE.

    1. With regard to SS's question - had RTE existed during the mentioned historical times - the President takes an oath to preserve, protect, & defend the Constitution which to me includes ignoring the Supreme Court when they violate their oath by interfering with the two elected branches. I have much more trouble with the Supreme Court's actions in this post than I do with any of the presidents'. If a president goes rogue the Congress has the constitutional power of the purse to rein him in.

      BTW - regarding the Supremes' ruling against Lincoln - they said that only Congress had the right to suspend the writ of habeas corpus. In 1863 Congress vindicated Lincoln's actions by passing a statute authorizing Lincoln's habeas corpus actions.

      These principles apply to BO's executive orders. Boehner could rein him in with the purse - not deepening the mindset plaque that the Supreme Court is supreme over the elected branches with the power & even duty to straighten out the other two branches.

  2. Most court cases are a mistake.