| -Caveat Lector-
In the debate
yesterday the two presidential candidates were asked if they had a "litmus" test
for Supreme Court Justices. President Bush said he had none. Although John Kerry
did not call it a litmus test, he said he would not nominate a judge who would
vote to overturn "Roe vs Wade" the Supreme Court Decision that made abortion on
demand legal.
However, there
is one test that should be put to judges at all levels. The following is a
revised version of an article I first published December 1, 2000 before the
court handed down its decision in the Florida election controversy. (A separate
article was written about those decisions which I will repost.)
MEDIUM RARE By Jim Rarey April 6,
2003 THE “LIVING CONSTITUTION” FRAUD There is no better example of the
success of the “big lie technique” than the perception in legal circles and the
general population that the Supreme Court has the power to “interpret” the
Constitution. In many law schools, law students are taught that the famous
Marbury v. Madison Supreme Court case conferred that power on the court. Nothing could be further from the
truth. True, that case established the
principal of “judicial review” of congressional statutes, by the court, as
implied in the “supremacy clause” in Article V of the Constitution. That clause grants supremacy to the
“laws of the United States” made in pursuance (to the Constitution). Implied is
the fact that some body must make a judgment as to the constitutionality of the
laws. The Supreme Court, as a
“neutral” party relative to the legislative and executive branches was the
logical arbiter. Regardless of the claims of the
anti-constitutionalists, Marbury v. Madison did not give the court the right or
power to change the original meaning of the Constitution. That was only to be
done through the amendment process contained within the Constitution
itself. At issue in Marbury v. Madison
was the jurisdiction of the court itself.
The Congress had attempted to change the court’s jurisdiction between
“original” and “appellate” as spelled out in Article III of the Constitution and
clarified in the eleventh amendment. In striking down that statute, the court
said to allow Congress to make those changes would, “make a mockery of the
Constitution.” The decision also
reaffirmed the Congress’ power to regulate and make exceptions to the court’s
appellate powers found in that same clause in Article III. The Constitution’s restrictions on the powers of the Executive and Congress did not sit well with many of the financial elite and aristocracy in the country. An ultimately successful campaign was begun to convince the American public that it was more important for the courts to arrive at a “fair” result rather than follow the technicalities of a document that was “out of date” soon after its adoption. It was argued that courts (especially the Supreme Court) should consider the Constitution as a “living” document that would change with societal needs through time. They claimed the amending process within the Constitution itself was too cumbersome and the job of keeping the Constitution “up to date” belongs with the courts. This necessarily required the courts to decide what was “fair” and then find some rationale to support those decisions. Through time this concept of a “living Constitution” was accepted in law schools and primarily through appointments by FDR became the predominant philosophy of the Supreme Court. It has prevailed ever since then through successive judicial appointments by all presidents following FDR. No longer would the intent of the founding fathers and the states that ratified the Constitution to limit the power of the United States (central government) be observed. The guiding principle was to be the “fairness” of the judicial pronouncements. At that point we ceased being a constitutional republic governed by law, and moved toward a “democracy” where the majority could vote away the rights (protected by the Constitution) of minorities. Of course the problem was, and is, that the only votes that count are those of the nine members of the Supreme Court. One of the main vehicles for implementing the living Constitution by the courts has been the bastardization of what is known as the Commerce Clause. The framers gave the federal government the power to regulate “interstate commerce.” The intent was to keep the several states from imposing tariffs on goods coming in from another state, thus making the country one large “free trade” area. The courts have reinterpreted that clause to mean the federal government can control every facet of goods that have crossed a state boundary including how it is used, or prohibiting its use, by the owner
One of the earlier travesties resulting from this “interpretation” was a case where the court ruled an elevator operator in the Empire State building was involved in “interstate commerce” because some of the passengers in his elevator were, and thus he (the operator) was subject to federal regulation. In the 1954 decision in Brown vs the Board of Education of Topeka, Kansas, the court departed completely from the Constitution. The decision written by Earl Warren cited, not the Constitution, but a compendium of articles assembled by the Swedish socialist Gunnar Myrdahl entitled “An American Dilemma.” In the decision Warren acknowledged that the decision being reversed (that had provided for separate but equal resources in segregated schools) was not unconstitutional. He said, however, that “subsequent sociological considerations” citing Myrdahl’s work, demanded its reversal. Of course his decision was considered to be eminently “fair” and desirable so the fact the Constitution was being trashed slipped under the radar of most of the public. The amending process is too cumbersome, you know. With the reinterpretation of the Commerce Clause, along with other equally tortuous interpretations, the courts have expanded the powers of the Executive and Congress so there is virtually no subject that is beyond the reach of congress. This has made the Tenth Amendment, which reserves the powers not specifically delegated to the federal government to the states and people respectively, a dead letter. The expanded powers of the federal government (more properly called the national government in a federal system) also have implications for the treaty making powers of the President and Senate. The only limitation on the jurisdiction of treaties is that they be made “under the authority of the United States” (that is this national government). If the authority of the national (federal) government is virtually limitless, then so too is the power of the President to make treaties (with the approval of the Senate) that will override state and local laws without the approval of the whole congress. The mess we are in today is because the Congress has not exercised its power to remove judges who are not willing to follow the rules (original intent of the Constitution) and have allowed a whole body of precedents to be established that violate the original intent. The reason is because a majority in the Congress is disdainful of the limitations the Constitution put on its powers. They are comfortable in allowing the courts to distort or ignore the Constitution to achieve results they favor but do not have the political courage to try to effect themselves. As evidence of how brainwashed
the public has become, we have been convinced it is improper to inquire into the
constitutional “philosophy” of nominees to the court during the confirmation
process. That is pure “BS.” They should be questioned very closely
as to whether or not they agree with past decisions and how they would deal with
hypothetical cases in the future. And most importantly, do they honor original
intent or have they bought the fraud of a “living Constitution”? In short, while the Supreme Court
is being allowed to dismantle our constitutional republic, the Congress silently
approves. The solution is with the
Congress, not in the courts. Let us please be civil and as always, Caveat Lector. ======================================================================== Archives Available at: http://www.mail-archive.com/[EMAIL PROTECTED]/ <A HREF="">ctrl</A> ======================================================================== To subscribe to Conspiracy Theory Research List[CTRL] send email: SUBSCRIBE CTRL [to:] [EMAIL PROTECTED] To UNsubscribe to Conspiracy Theory Research List[CTRL] send email: SIGNOFF CTRL [to:] [EMAIL PROTECTED] Om |
