Tuesday, March 28, 2017

Gorsuch: "Apply and Enforce"

By Douglas V. Gibbs

The reality of a Trump presidency largely rides on the fact that voters trusted Donald Trump's potential choice regarding a replacement for Antonin Scalia's vacant seat on the U.S. Supreme Court bench than they did regarding Hillary Clinton's.  The balance of the court slightly leans rightward, depending upon the moods of Justice Kennedy.  A Clinton nominee would have tilted the court leftward for likely at least a generation, if not longer, and enough voters recognized that fact, and feared that possibility.  Therefore, they came out in numbers strong enough to put Donald J. Trump in the White House.

While not the perfect choice, 10th Circuit Judge Neil Gorsuch turned out to be Trump's nominee.  For the most part, Gorsuch considers himself to be an originalist.  The Constitution, according to Gorsuch, is not a living and breathing document as much as it is a social contract with specific language.  It is the "Law of the Land", he has proclaimed, and as a member of the Supreme Court he promises "to apply and enforce the law."

If this article had the conveniences of my radio program, and I could use sound effects, at this point I would insert the sound of a phonograph needle ripping across a spinning record.

The comment by Gorsuch was uttered in response to Democrats inquiring him regarding the 2008 District of Columbia v. Heller ruling which has been used as a precedent decision reaffirming the 2nd Amendment's concept that gun ownership is an "individual right."  From a constitutional point of view, Washington D.C. is a federal district, so it was constitutionally proper for the Supreme Court to hear the case, and despite the fact that it was a 5-4 decision, the nine judges in black robes came to the constitutionally proper conclusion.

The questioning Democrat who was trying to corner Gorsuch was California's longtime Senator Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee.  In response to her questions, Gorsuch promised to uphold the law as it is written.

Feinstein wasn't finished with Gorsuch, just yet, pressing him with questions regarding if he agreed with specifics in the late Justice Antonin Scalia’s opinion on the case and in former Justice John Paul Stevens’ dissenting opinion. Gorsuch declined to answer questions about his opinions on specific details in either opinion.

“Both Justice Scalia and Justice Stevens wrote excellent opinions in that case,” Gorsuch said. “I’m not here, though, to grade my bosses’ work. That would be kind of impertinent of me, I suspect. And certainly, I’m sure, they would think so.”

Then he said something that got me nervous, as a Constitutionalist: “Whatever is in Heller is the law,” Gorsuch later added. “It’s not a matter of agreeing or disagreeing, senator. Respectfully, it’s a matter of it being the law. And my job is to apply and enforce the law.”

Screeching needle flying across a spinning record!

The Heller decision is not "the law." The law of the land is the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States" (Article VI.).  Judicial rulings are not "the law."  It is not the job of the judicial branch to make law, modify law, nor repeal/strike-down law.  Those are legislative functions, and Article I, Section 1 of the United States Constitution clearly explains that "All legislative Powers herein granted shall be vested in a Congress of the United States."  Pursuant of the concept of a "Separation of Powers," neither the executive branch, nor the judicial branch, have legislative powers.

So, Heller is not the law, and to touch upon Gorsuch's final three words in his statement provided above, it is not his job as a judge to enforce the law.  Executing the law is the job of the executive branch.

John Marshall wrote accurately in his opinion of Marbury v. Madison that the court could not enforce Marbury's win which indicated he was due his commission.  Then, there's the famous Andrew Jackson quote in reference to Worcester v. Georgia, (1832), in which Jackson reportedly responded: "John Marshall has made his decision; now let him enforce it!"

The courts do not have the authority of "enforcement."  Again, there's that pesky little thing called "Separation of Powers" established in the first sentence of each of the first three Articles of the U.S. Constitution, which confines the powers of each branch to the branch in which those authorities are granted, and to no other part of government.

Feinstein then continued to press Gorsuch on the 2nd Amendment, asking him if he agreed that the language of the amendment is ambiguous and if that ambiguity “should be decided by courts or by legislatures.”

First, let me explain that the language of the 2nd Amendment is not ambiguous.  The right to keep and bear arms is a "natural right" given to us by our Creator.  "A well-regulated militia" is a militia of citizen soldiers that has been "put in good order."  (See "regulated" in Webster's Dictionary of that period).  As we remember in our American History classes, the militias during the Revolutionary War were not in good order.  They were untrained, had muskets of various sizes, and often were not fully uniformed (needing socks, or other garments).

The next part of the 2nd Amendment, "...being necessary to the security of a free State", refers to the State's right to protect itself from tyranny, be the source of that tyranny foreign, or domestic.  In other words, a the language refers to a State's right to protect itself from invasion by foreign forces, or the federal government, should that central government become tyrannical.  

"...the right of the people to keep and bear Arms" refers to the fact that gun ownership and possession is a God-given natural right.  Keep is defined by the 1828 Webster's Dictionary as being "To hold; to retain in one's power or possession; not to lose or part with."  Bear, according to the 1828 Webster's Dictionary, means "to carry" and "to bear arms in a coat", which is a direct reference to the right to carry a concealed firearm.  "...shall not be infringed" means that the infringement of that right cannot be committed by government in any way, shape, or form.  In other words, all federal gun laws are unconstitutional, and therefore, illegal.  (Note: The Bill of Rights was originally intended to only apply to the federal government. As per Federalist 45 by James Madison, laws regarding rights could be created by the States.  However, because the right to keep and bear arms is a natural right, despite some authority regarding gun laws, even the States are not supposed to pass laws "infringing" completely upon our natural right to keep and bear arms.  Some may argue that the 14th Amendment incorporates the Bill of Rights to the States. The debate regarding that concept is ongoing.

Gorsuch also said Roe v. Wade is a “precedent of the United States Supreme Court”, but declined to elaborate on whether he would uphold the decision.

Gorsuch's language regarding various cases reveals that he has some consideration for using case law as a basis for constitutional interpretation.  From an originalist's point of view, the courts are only there to apply the law, not interpret it.  Interpretation opens up the opportunity for allowing the courts to modify or strike down the law based on their political whims - a power never authorized by the Constitution, and never intended to be given to the courts by the Framers of the U.S. Constitution.  As the authors of the Constitution, the final arbiters of the text within the document are the States, and We the People.

In conclusion, while Gorsuch is heads and tails above any justice that may have been nominated by a President Hillary Clinton, he's not the perfect constitutional originalist that he claims to be.  We must be aware of his decisions and opinions, and hold him accountable for limiting himself within constitutional bounds.

-- Political Pistachio Conservative News and Commentary

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