A Response To The Liberal View of the Courts

Recently, I wrote an article titled "Hamilton's American Capitalism." As usual, a number of liberal commenters chimed in with their opinion. Normally, I just don't have time to address their nonsensical rantings, but in the above mentioned article, I did decide to respond to the moronic banter of Tom. Below is the latest installment of my responses to his liberal view of the courts:

Tom,

You must remember that I am an Originalist. Originalists believe the best way to understand the Constitution is to determine how the Framers intended the Constitution to be followed. To do this, I look to several sources to determine this intent, including the contemporary writings of the framers, letters, resolutions, writings by the founders while they held office, local publications and articles, the Federalist Papers, and the notes from the Constitutional Convention itself such as Madison's notes on the Constitution, which are quite detailed when it comes to the debates during the convention. That is the most pure way of understanding the Constitution. Of course the opinions of the Framers varied, and they battled endlessly. The Federalists wanted a more centralized system, and the anti-federalists feared the creation of a federal government in the first place. In that sense, the Constitution was considered to be a "centrist" document.

One thing is clear when you read those writings, except for a noted few like Alexander Hamilton (who initiated "interpreting" the Constitution through Implied Powers as a way of getting around it, and as a way of creating federal authorities that just does not exist), there was a great fear that if they created a federal government, it would become tyrannical. One of the tools of tyranny is a strong judiciary. Therefore, there was actually a huge argument against creating a judicial branch in the first place. The compromise was to give the judicial branch as few powers as possible. Then, after that, they still went back with the 11th Amendment and took away even more of the court's authorities.

People like John Marshall and Joseph Story, however, being students of Hamilton's way of thinking, worked to give the courts more power, in the hopes that eventually the judiciary could be used to usurp the Constitution, or override the limiting principles of the founding document. They had forgotten the incredible power wielded by the British Courts, or perhaps they had not forgotten, and desired control over the American form of government through a judicial tyranny as was the modus operandi of the British Courts.

I have called you ignorant on this issue because "ignorance" is a state of simply not knowing. What is dangerous in your case is that you "think" you know. Your argument is that judicial activism has been in place for over 200 years, therefore, since the federal government has operated in that manner (which is not entirely true, it has been progressing from what-it-was to what-it-is incrementally over the last 200 years) during that time, that must mean it is the way it should be run, or the way it was intended to be run.

That brings to mind the old saying, "If everyone else is jumping off a cliff, will you too?"

I am sure you are correct that the conservative justices on the Supreme Court may not see eye to eye with me on all of the aspects of the judiciary. Like you, they have been subject to conditioning by a philosophy that began to infiltrate our system way back during the days of Marbury v. Madison. Clarence Thomas, in particular, is probably the closest to fully understanding the Constitution, but even he has gotten it wrong a few times, McDonald v. Chicago being a case in point. He argued that the Second Amendment is to be applied to the states because of the 14th Amendment. The 14th Amendment specifically applies to the emancipated slaves, and giving them equal protection. It does not change the Bill of Rights from applying to the federal government to the states as Thomas, and many folks, have suggested.

You claim that I do not understand what judicial review is. You then wrote: "The courts don't 'change law' - they simply decide if a law is constitutional or not, and if it is not, they have the authority to invalidate the law."

Read what you wrote very carefully. You contradict yourself. You say the courts don't change law (which they have been doing, by the way, but that is another discussion), and then you wrote that they have the authority to invalidate the law. Invalidating the law is changing the law.

The job of the courts is to apply the law to the cases they hear. The law is the law, regardless of their opinion of the law. If they feel something is wrong with the law, such as it being unconstitutional, they can write an "opinion" stating so, and it is up to the legislature on whether or not to follow that suggestion. If the legislature chooses not to strike down the law, regardless of the court's opinion, if the law is in fact unconstitutional, the states can still ignore (or nullify) the law, since the states (not the courts) are the final arbiters of the U.S. Constitution. The States may very well make that decision based on the opinions of the courts, but no part of government "must" do so at the behest of the courts. The judiciary was not set up to supervise the legislatures.

However, using your argument, would not the lawless Obama administration be acting criminally since they have not recognized Judge Vinson's invalidation of Obamacare? If what you say is true, and the courts invalidate unconstitutional law, then isn't it the Democrat Party's prerogative to cease and desist when it comes to the implementation of the Health Care Reform Law because a court has invalidated it?

Oh, I see, "rules apply to thee, not to me, " when you are a liberal.

You say that my view on this issue is not even a conservative view of law. I never said it was. My view on this issue is the founders view of law. The GOP is just as guilty as the Democrats of acting unconstitutionally in many ways. I do not follow conservatism based on what conservatives say. I am a conservative because I usually agree with that platform, but my beliefs are not based solely on that platform. My beliefs are based on my own principles, which are largely influenced by the U.S. Constitution, and other writings by the Founding Fathers.

According to your comment, there is a minuscule segment of the population that agrees with me. Well, it was a minuscule segment of the population that believed independence was the way to go over two hundred years ago. The American Revolution was fought by only 4% of the population. Two-thirds of the Continental Congress were either Tories, or Moderates, who preferred to extend an olive branch (and they did in 1775) to the British in the hopes of appeasing them and reaching an agreement diplomatically (which would have been a dead-end street in that situation) than to move in a direction of independence. In fact, Independence was a topic avoided until the fires of "common sense" was whipped up by Thomas Paine's publication of the same name.

Back to the topic, in short, I understand why and how judicial review exists in the United States, and it was simply a usurpation of power by the courts. They gave the authority to themselves through John Marshall's opinion in 1803. The power was not granted by the States as is the proper process, and the idea of judicial review goes completely against the principles of a limited government as prescribed by the U.S. Constitution.

The legal system in the United States is out of control, and it is up to the States and Congress to grab hold of the reins and get the courts under control. Eliminating the power of judicial review is an important part of that endeavor. And just because it has operated that way for a couple hundred years, it does not make it right, or Constitutional.

The Eleventh Amendment was before Judicial Review became "official" with John Marshall's Marbury v. Madison opinion. I used it as an example to show how the courts, in Chisholm v. Georgia (1793), had overstepped their bounds, and to reign them in, the Congress proposed, and the States ratified, the Eleventh Amendment. The amendment was specifically written to reduce the powers of the courts, eliminating their authority over cases where citizens of another state, or a foreign government, sue a State. As per that amendment, the federal courts cannot hear such a case. Such a case, then, must remain at the State level.

Unfortunately, Congress since then has not been doing its job, and has allowed the courts to become the monstrosity they have become. Rather than the weakest branch, as originally intended, the courts have taken upon themselves legislative and executive powers. It is time the Congress proposes an amendment, or the states propose an amendment through an Article V. Convention, to put the courts "in their place." By the way, just as an added bonus, when you read Madison's notes, you will note that one of the key debates was about not allowing the federal government to strike down State laws, be it judicially, or legislatively.

Loving vs. Virginia is one of your favorites. I know. And I agree it did a good thing, but it did it using the process in a wrong manner. In that issue, it was the State's responsibility to change the law, or suffer people voting with their feet and leaving the State. The federal government did not have the authority in that case to strike down State law. If it was such an important issue for the federal government to get involved in, then a new amendment should have been proposed and if the states were willing to ratify it, then the federal government could have that authority. However, by acting without the authority, the federal government literally seized that power, which is a sign that our government is acting tyrannical.

Congress doing nothing was Congress failing to do its job.

One more thing. To answer your question about deleting your comments. It has nothing to do with anything other than that I just don't have the time to write out long answers like this to respond to your idiocy. You are more of an irritant than anything. But don't worry, on occasion when I have time, I will entertain your silly comments, and lay on you the truth. That is why you read my blog, you know. Because deep down you hunger for the truth.

-- Political Pistachio Conservative News and Commentary