The following is another article of mine that was published at
www.etherzone.com. As always, comments are encouraged.
Roderick T. Beaman,D.O.
Board Certified Family Physician
Protect freedom. Disarm the government.
BORK KAGAN
BORK THEM ALL
When Pres. Barack Obama introduced Solicitor-General Elena Kagan as his next
Supreme Court nominee, he lauded her expertise in constitutional law. He did
not mention expertise in The Constitution, only in constitutional law.
Personally, I am a little more concerned with The Constitution than
constitutional law.
The issue of whether The Supreme Court is even constitutionally empowered to
review the constitutionality of laws is another matter. The Constitution states
"The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their Authority; ..."
If you read that carefully, it doesn’’t empower the Courts to interpret the
Constitution, only the laws arising under it, a huge difference. That was a
power that was appropriated by the first Chief Supreme Court Justice, John Jay.
He insisted upon it, in probably the first example of judicial imperialism.
Pres. George Washington and the Congress acquiesced.
I would like to see some Supreme Court Justice actually acknowledge that and
suggest it be re-evaluated that but I’’m not holding my breath. That would
require that an agency of government undermine its own authority, an obvious
conflict of interest.
There is also a policy called stare decicis which means that anything that’’s
already been decided, stays decided. The only exception is if some intervening
matter mandates a review of the decision. That rarely happens since justices
usually extend a presumption of correctness to their predecessors. One major
exception was in Brown vs. Board of Education that essentially overturned the
previous Plessy vs. Ferguson.
As a practical matter, when it comes to American freedom, this means that the
power the federal government has expropriated remains expropriated. The rest,
ours, is negotiable. As Andrew Napolitano has pointed out in "Lies the
Government Told You," between 1937 and 1993 (possibly 1992), the Supreme Court
declared not one federal law unconstitutional.
That period encompassed most of the New Deal, the Fair Deal, the New Frontier
and the Great Society, not to mention the establishment of the Department of
Health, Education & Welfare. So much for the Supreme Court preserving
constitutional restraints.
Kagan is making the rounds in the Senate, among both Republican and Democrats,
as is the wont of nominees. And among both Democrats and Republicans, she is
gaining support. Ken Starr, whose investigation as special prosecutor led to
the impeachment of Bill Clinton, and Sen. Scott Brown are supporting her.
Miguel Estrada is a friend of hers and he has endorsed her. His appeals court
nomination by Pres. George W. Bush was blocked by Senate Democrats making it a
very ironic endorsement. The welcome given her thus far contrasts with that
extended by the Democrats to a previous Solicitor-General nominated to the
Court, Robert Bork by Pres. Ronald Reagan.
Robert Bork was considered a brilliant legal mind but it led to Ted Kennedy’’s
infamous blast. Within 45 minutes of Reagan’’s announcement Kennedy got up and
stated, "Robert Bork's America is a land in which women would be forced into
back-alley abortions, blacks would sit at segregated lunch counters, rogue
police could break down citizens' doors in midnight raids, schoolchildren could
not be taught about evolution, writers and artists could be censored at the
whim of the Government, and the doors of the Federal courts would be shut on
the fingers of millions of citizens." In a career characterized by the vilest
demagoguery in American congressional history, that has to rank as one of
Kennedy’’s worst. It led to a campaign of unbridled character assassination in
which the Left sank to depths ranking with its attacks on Joseph McCarthy. Bork
withdrew his nomination.
Many have raised questions about Kagan's thin dossier. Others question her
opposition to military recruiters at Harvard over the Pentagon's ‘‘don't ask,
don't tell’’ policy on gay soldiers. One defense is that she was only enforcing
Harvard’’s policy and that she continued a policy of allowing the military to
recruit through the career office.
Personally, I’’ve never understood what the big deal was. As Barry Goldwater
once said, he didn’’t care about the sexuality of the guy next to him in the
foxhole; he cared whether he could shoot straight. Amen.
During that period, many state and local laws were declared unconstitutional.
Many of the cases were driven by the American Civil Liberties Union that seemed
to count on the Supreme Court kicking around the states. Some of the most
infamous decisions that established the supremacy of the courts in our system
were rendered. They included outlawing school prayer, Roe vs. Wade and the
residency requirements for welfare entitlements.
The Court served notice that its authority extended to every single aspect of
our legal system at its discretion. It is instructive to realize that Chief
Justice William Rehnquist, a supposed conservative, served notice that under
his tenure there would be no erosion of the purview of the Courts. Rehnquist
was nominated as Associate Justice by Republican Richard M. Nixon and Chief
Justice by Ronald Reagan.
It was under Rehnquist’’s tenure as Chief Justice that the Supreme Court
overturned a federal law on the grounds that it was too broad in interpretation
of the Commerce Clause. On the other hand, Rehnquist supported pre-trial
detentions and wiretapping. I suppose that’’s considered conservative but it’’s
not my version.
Although it’’s refreshing to see a resurgence on states’’ rights, there are
also individual rights to be considered. Rehnquist came down on the side of
state government power, not the individual citizen. Irrespective of the
proximity of the tyrant, in Washington or a state capital, tyranny is still
tyranny.
I would like to see someone assert individual rights in accordance with the
Tenth Amendment which states that the ‘‘powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.’’ Clearly the people figure in here.
There are conservatives who as a result of privacy rights invoked by Roe Vs.
Wade have cited Potter Stewart’’s famous observation that he couldn’’t find a
right to privacy in The Constitution. Well, Mr. Justice Stewart, if you had
read the Tenth Amendment, you would have discovered one. So even conceding a
right to privacy, Roe vs. Wade didn't consider nature or nature's laws of
embryology and other scientific facts that document the development of a human
being.
But the Tenth Amendment, along with the Ninth Amendment gets to the crux of the
matter. And there is yet another, little known factor to consider, namely The
Preamble to The Bill of Rights. It reads, "The Conventions of a number of the
States having at the time of their adopting the Constitution, expressed a
desire, in order to prevent misconstruction or abuse of its powers, that
further declaratory and restrictive clauses should be added: And as extending
the ground of public confidence in the Government, will best insure the
beneficent ends of its institution."
I was not even aware that there was a Preamble to The Bill of Rights until a
few years ago. It was not in my commemorative bicentennial edition of The
Constitution and I like to consider myself well informed. Most people I talk
to, when I mention a Preamble, think of the familiar Preamble to The
Constitution which begins, "We the people..."
The Preamble to The Bill of Rights, when taken together with the Ninth and
Tenth Amendments leads to no conclusion other than that 95% of our current
federal government is illegal and that the President, most of the Supreme Court
and most of Congress are engaged in a criminal enterprise.
So pardon me if my eyes glaze over during these coming confirmation hearings. I
fully expect for Elena Kagan to be raked over the coals on her attitude toward
the military, possibly Roe vs. Wade, pre-trial detentions and a host of other
issues and when all is said and done to be confirmed.
How about asking a nominee how she approaches a case? Is it through case law or
through The Constitution? Is she ready to dust off those old cases that the
attorneys cite and the Justices use and reexamine their fundamental logic?
Somehow, I doubt it.
To me, law must be like a set of conclusions that is drawn from a basic set of
assumptions, along the line of mathematics. If there isn’’t a logical chain
connecting the assumptions and conclusions, then maybe the chain is wrong. And
maybe at that point, it would be proper for the Courts to defer to the Congress
as per Article II, Section 2, Paragraph 2, that limits the Courts’’ power
‘‘...with such Exceptions, and under such Regulations as the Congress shall
make.’’.
I would prefer to hear about her attitude toward that Paragraph, those two
Amendments and The Preamble to The Bill of Rights. I would like to know whether
she will be reexamining the fundamental reasoning that led to the precedents
and case laws that she will use to make her decisions.
I don't expect to, though. That would take true courage on the part of
Congress.
