Politicization of the Supreme Court not as Easy as Supposed

By Harold Pease, Ph. D

A confirmation of Justice Brett Kavanaugh, because he may have once opposed Roe V. Wade on abortion, is not likely to be as threatening as portrayed by our Democratic Party medias.

In the first place justices are only allowed to choose from what is brought before them, cases having survived tedious, time-consuming and expensive lower court scrutiny. So if Justice Kavanaugh wanted to reverse Roe V. Wade he would have to wait for a case that would allow that. Theoretically that could take a lifetime—if at all.

Should Congress pass a law that all nine justices personally believed to be unconstitutional they possess no power collectively or individually to themselves bring it before the high court for review. There exists in the Constitution no judicial general review or oversight of the legislative branch; only in laws contested by a litigant proving damaged by it, or treaties. The Constitutional Convention nixed this notion because it would give the court too much power. Nor were they allowed an advisory position with respect to legal issues, each branch could do this for itself. They were to be an independent branch existing solely to adjudicate cases brought to the court by others.

Should no one oppose a law or treaty outside the Constitution because opposition to it is too expensive, time-consuming, and tedious it becomes constitutional by default becoming, in time, the bases for additional law that should be equally unconstitutional. Still, it remains a lesser problem than had the court oversight of all legislation.

In the second place justices are limited to just nine classes of cases in which they can adjudicate, as was the Legislative Branch to just 18 areas where they were empowered to write law (Article I, Section 8), and the Executive branch to just eleven listed areas of performance (Article II, Sections 2-3). Remember the purpose of the Constitution was to limit government from ruling everybody and everything.

Article III, Section 2 begins: “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.” The Supreme Court is limited to nine case types. These are: “- to all Cases affecting Ambassadors, other public Ministers and Consuls; – to all Cases of admiralty and maritime Jurisdiction; – to Controversies to which the United States shall be a Party; – to Controversies between two or more States; – [between a State and Citizens of another State;-] between Citizens of different States, – between Citizens of the same State claiming Lands under Grants of different States, [and between a State, or the Citizens thereof;- and foreign States, Citizens or Subjects.]” Constitutionally every case before the Court had to first meet one of these or the Court must decline adjudication.

Why the list of case types? Should not the Supreme Court adjudicate everything? Because they could adjudicate only conflicts in federal law and treaties as decided in the Constitutional Convention and as per congress’s list of areas for approved law (Art. I, Sec. 8). Because when the Constitution was created two co-equal existing governments were recognized called federalism with the states governing domestic and the federal branch governing national and foreign. Because state courts were to adjudicate everything else not listed as federal power in the Constitution and as noted in Amendment 10.

Then the Founders divided this list into original and appellate jurisdictions—one total the other only partial. “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.” Why? Because the first deals entirely with matters of foreign consequence and the second, the state, is the head of the other co-equal governments under federalism.

The Constitution continues, “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Now Congress is in charge and clearly can participate should it choose to. “You may not take up this case at this time’” or “you may do so given the following regulations.” This is an essential part of the “check and balances” of the Constitution which has unfortunately never been used.

Unfortunate is Congress’s failure to provide this balance, worse is the failure of many justices to pay any attention to the list provided, which has been the case for most of the past century. Far worse is the tendency of so many justices to just make up an interpretation based on no law.

Supreme Court Justice Clarence Thomas said. “Let me put it this way; there are really only two ways to interpret the Constitution—try to discern as best we can what the framers intended, or make it up.” On making it up, he added: “No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores.”(Wall Street Journal Opinion, Oct. 20, 2008).

Today the Court is evenly divided between those who make it up and those who follow what the Founders wrote. At least a Justice Kavanaugh has shown that he will not make it up.

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He taught history and political science from this perspective for over 30 years at Taft College. Newspapers have permission to publish this column. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

Symbols of Liberty and Tyranny Side by Side— in America

Harold Pease, Ph. D

Four years ago I awoke on a Sunday morning where I was visiting family, a ray of light coming through the window. The window view showed side-by-side symbols; one of liberty, as represented by a small community of multi-colored and multi-shaped living structures with residents going about their business oblivious to the second symbol, represented by large, gray, ugly, windowless government buildings spying on and recording everyone’s communication. The contrast of liberty and totalitarian intent was startling and breathtaking. I was in Bluffdale, Utah viewing the NSA’s top spy facility in the world called the Intelligence Community Comprehensive National Cybersecurity Initiative Data Center.

To the far left of the window view was a new housing development intruding into largely undeveloped land, like an extending finger, with brown hills above it and a large hay farm in front and below stretching far forward and to the right of my view.   Here residents made choices that enhanced the quality and comfort of their lives largely free from total government spying and restriction—or so they thought.

The number of churches to the population seemed unusually high, five church steeples reaching skyward, as if begging for the influence of God in their community, in what looked to be no more than 300 structures, mostly apartments, as seen from my window—all within a mile of where I was. I attended one of the churches and was greeted with the opening song “America the Beautiful,” the classic patriotic tune words written by Katherine Lee Bates and music by Samuel A. Ward. It housed the favorite words “America! America!” followed by four phrases in four verses “God shed his grace on thee,” and, “God mend thine every flaw,” and, “May God thy gold refine,” and again, “God shed his grace on thee.” Obviously, these Christians loved their liberty.   A similar tune representing a relationship between God, country and liberty could have been found throughout most of the country this Sunday before the 4th of July.

In stark contrast off in the distance about two miles, but still clearly visible from the left side of the same window, was the most profound symbol of big government ever—the new NSA spy center, the largest in the world, capable of holding a yottabyte of information collected from every person on earth, with space enough for generations to come. These enormous, ugly, gray, windowless, buildings perched on a hill with intimidating guard-houses restricting entrance, represented potential total control of the actions and thoughts of every human.

Much was published on NSA government spying of its own people including LibertyUnderFire.org columns, so nothing new is found in this one. A project began under George W. Bush and accelerated under Barack Obama, Bluffdale “is the final piece in a complex puzzle assembled over the past decade and a half. Its purpose: to intercept, decipher, analyze, and store vast swaths of the world’s communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks… Flowing through its servers and routers and stored in near-bottomless databases will be all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital “pocket litter” (“The NSA Is Building the Country’s Biggest Spy Center. Watch What You Say.”) The project was code named “Stellar Wind.”

Fortunately the public has known about their government spying on them for over five years. Even the less informed made government surveillance jokes, but still the collection continues although limited somewhat by the 2015 USA Freedom Act with respect to telephone conversations requiring telephone companies to collect the metadata instead and store it at their expense. Then silence. Even the Democratic Party, once the great defender of civil liberties, is largely silent posed now as the defenders of the Deep State. It is as though everyone is in denial, as though these revelations could not really be that bad.

No one is being arrested or punished for his or her thoughts. Yet! The noose is not tight. And what is a yottabyte of information anyway? The size is incomprehensible adding to brain overload. A yottabyte is 1,000 zettabytes (the number 1 followed by 24 zeros — 1,000,000,000,000,000,000,000,000). That “318 scientists, computer engineers, and other staff work in secret on the cryptanalytic applications of high-speed computing and other classified projects” (Cryptome, March 16, 2012, “NSA Decryption Multipurpose Research Facility”), making what is now happening possible, merely adds to the incomprehensiveness of the subject.

Monday morning the same light flooded the room. The same symbols of liberty and oppression lay in stark contrast below. The same five church steeples reach for the sky as though to appeal to God for His influence. The same residents drive by, perhaps the greatest symbol of totalitarianism of all time, on their way to work, as though it does not exist. Some may even work at this place to help give the government details on their neighbor. Everything about these ugly, windowless, gray structures violates the Constitution. Chances are those of the community next door that sing of freedom will reelect the same Democrats and Republicans that authorized and funded their surveillance. I closed the window. If I too ignore what it shows, it will go away. Right?

The “Little Miracle” of The Declaration of Independence.

By Harold Pease, Ph. D

The Second Continental Congress, having been convened for six months, had been engaged in the wrestle for or against independence, the vast majority of delegates being decidedly against such drastic action most of this time. Surely there should be a way of reconciling their differences with Great Britain instead.

This was so, even after the battles of Lexington, Concord, and Bunker (Breeds) Hill and the British occupation of Boston. We were at war. King George III had already rejected the Colonists’ Declaration of Rights and Grievances, arguing the violation of their rights under British law, and the pacifist Olive Branch Petition, which reaffirmed colonial loyalty to the king and blamed their problems upon Parliament alone. Moreover, he had declared the Colonists in open rebellion. A full six months prior to the signing a declaration of independence, Parliament had removed the colonies from the protection of the British military, ended all British trade with them, and authorized the confiscation of any American vessel on the seas. Still, delegates could not bring themselves to separate from their “mother,” the British Empire.

On July 1, 1776, the Patriots finally risked “putting the question” to a tentative count but were numbingly shocked by the result. Four colonies New York, South Carolina, Delaware and Pennsylvania did not support declaring independence from Great Britain. The Patriots needed to show solidarity. A vote of only nine colonies would show disunity.

This is where the brilliance of John Adams, from Massachusetts, and Richard Henry Lee, from Virginia, came into play. They got Edward Rutledge to use his influence to persuade South Carolina, for the sake of unity, to join those supporting independence, if Pennsylvania and Delaware could be persuaded to do likewise. Convinced that that could never happen, Rutledge agreed. Next, Adams and Lee worked on Delaware which had three representatives, one for and another against independence and a third, Caesar Rodney, who was pro declaration, was recuperating from health problems at his farm 80 miles away and probably would not be able to be there to vote the next day. Apparently he had skin cancer and a sore on his face the “size of a large apple.” The Delaware delegate favoring independence sent a messenger to Rodney to try to get him to the Convention for the vote. This necessitated an 80-mile all night ride by the sick delegate.

Now they needed to change the vote of Pennsylvania with seven delegates, four of who were against independence. Amazingly Adams and Lee convinced two of these to be absent for voting the next day. This would place Pennsylvania in the camp of the Patriots three to two. New York, without instructions to vote for independence, remained neutral refusing to vote at all. The gamble was that in these agreements in South Carolina, Pennsylvania and Delaware there existed too many ifs, and would everyone do as promised? They needed a “little miracle,” perhaps three.

Sometime after lunch the next day July 2, 1776, Caesar Rodney, “caked with mud from head to foot,” having ridden though a severe thunderstorm and torrential rainentered the assembly room, and when his name was called for Delaware he rose with difficulty but in a clear voice stated: ‘As I believe the voice of my constituents and of all sensible and honest men is in favor of Independence and my own judgment concurs with them, I vote for Independence’ ” (Declaration of Independence: The Keepsake Album of its Creation, by Joseph P. Cullen, American History Illustrated p. 34).

This “little miracle” made Delaware the 10th colony for a declaration that these colonies were free and independent states. The two lesser “miracles” followed. Pennsylvania followed as planned when the two con-delegates did not show to vote as promised, leaving a simple majority for independence, and Rutledge kept his word and persuaded South Carolina to become the 12th colony for the sake of unity. With New York abstaining the Patriots could announce to the world that the vote had carried without an opposing vote. All this happened within 26 hours, when the day before, at 10:00 a. m., only nine colonies supported independence.

A draft of The Declaration of Independence had been written, reviewed by committee, and tabled on June 28, until after an affirmative vote for independence. This achieved, its finalization by the whole house followed on July 4, 1776, passing 12 to 0, again with New York abstaining. But could all this be vindicated on the battlefield, as war with Great Britain was certain to follow as a result, that seemed just as improbable perhaps needing additional “little miracles,” or would these men merit only the gallows, but that is a story for another day?

 

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He taught history and political science from this perspective for over 30 years at Taft College. Newspapers have permission to publish this column. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

American Revolution Successful Because Citizens had Guns

By Harold Pease, Ph. D

Many may not remember their basic U.S. History courses as to why the Second Amendment exists in the first place. Certainly, when enacted, there was no thought of restricting type of firearm, or where, or who could carry. So its placement as the second most valued freedom in the Bill of Rights had nothing to do with personal safety or hunting, these were already assumed. It was specifically placed right after freedom of religion, speech, press and assembly to make certain that these freedoms were never taken from us. It was aimed (pun intended) squarely at the government. But certainly we have no fear of the government today?

One must remember that early patriots did not ask the existing British government if they could revolt. They argued in The Declaration of Independence, that they were “endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness” coming from a much higher source than mere man and that “whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government.” God is referenced five times in this document and thus, they believed, He sanctioned their rebellion. They were expected to suffer evils while sufferable, “but when a long train of abuses and usurpations, pursuing invariable the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”

The right of revolution requires the means of revolution and this is the primary reason the Second Amendment exists. Normally the ballot box is the only self-correction needed but they had no intention of forfeiting the right to revolution they exercised giving us liberty in the first place. Nor did they assume that future generations would never need the serious self-correction they used.

The wordage of the 2nd Amendment was stronger than any other sentence in the Constitution. “A well regulated militia [the people], being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” They saw this right as being connected with a free country and specifically forbade the federal government any authority with respect to it because historically it was always a government that took away liberty.

An armed populace twice proved its value to liberty in the Revolutionary War. First, many do not remember why Lexington and Concord were so important. The Americans learned that the British planned to go door to door to confiscate their firearms so they gathered and hid them in these two villages. Now the British night gun raid, and Paul Revere’s desperate midnight ride warning the Americans enroute, so they could retrieve their guns to use against the British, makes sense.

Second, the Battle of Saratoga preventing the conquest of the northeast by General Johnny Burgoyne was stopped, not by the military, but by angry farmers with their own military styled “assault” rifles. This American victory encouraged other countries, notably France, to inter the war on our side. We would not have won the war without an armed citizenry.

The Founders’ attitude regarding guns—even military issue— was clear. Thomas Jefferson wrote: “No free man shall ever be debarred the use of arms.” And George Washington said: “A free people ought not only to be armed,” but also, “they should promote such manufacturies [sic] as tend to remind them independent of others for essential, particularly military, supplies” (Gun Control, Freemen Report, May 31,1975, p. 1).

But many do fear our government today. If freedom is measured, as it was in Jefferson’s day, by the “least government is the best government” we are less free today than when ruled by the British. We fear when all three branches ignore constitutional restrictions of their power. When the Executive Branch issues more restrictions on our behavior, through executive orders, than Congress passes new laws. When Congress will not limit itself to listed powers. When the Supreme Court interprets the Constitution in such a way as to bestow themselves with powers never intended by the founders such as healthcare, marriage, and abortion.

We fear when unelected bureaucrats (DOJ, FBI and CIA) refuse congressional (the peoples’) oversight. When justice for sharing classified documents differs widely for a Clinton from that rendered General Petraeus. When pro-Clinton investigators exonerate Hillary on her 33,000 deleted emails on a personal server (many classified), are the same investigators as on the Mueller Special Counsel designed to alter the results of a presidential election, equal justice is compromised and the Justice Department is weaponized.

The Second Amendment is the Constitution’s final check on tyranny. We have the same right of revolution the Founder’s used, fully expressed in The Declaration of Independence. Widespread gun ownership has never been a threat to truly free societies. An armed citizenry keeps the government on notice of the governs’ ability to resist should inalienable rights be taken from them.

A popular slogan runs. “I love my country but I fear my government.” Given the unconstitutional antics noted above perhaps we should hang on to the 2nd Amendment as designed as our final option against tyranny? An option we hope never to have to use again.

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He taught history and political science from this perspective for over 30 years at Taft College. Newspapers have permission to publish this column. To read more of his weekly articles, please visit www.LibertyUnderFire.org.