Tag Archives: courts

How to Understand the Constitution

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Juan Williams had some thoughts concerning this alleged point of confusion last Friday in his Wall Street Journal op-ed.

Over the past half century, regardless of whether a liberal or a conservative resides in the White House, the critical issue facing any Supreme Court nominee is where he or she stands on the political contest of wills over how to read the Constitution.

True enough.  But then he went astray.

Liberals regard the Constitution as a “living document” that lends itself to modern interpretations by judges, who may extend rights to groups not mentioned or considered in the Constitution or its amendments.

This is an accurate reading of the Modern Liberal position, but what they and Williams alike carefully, consciously elide is this crucial fact: our Founders and the Constitution’s authors also considered the Constitution to be a living document (no obfuscating quotes needed).  They, and We the People who then ratified our Constitution, included Article V explicitly for the purpose of that life.  And We the People are the ones, the only ones, to breathe life into our Constitution.  Judicial interpretation away from the plain meaning of the words of the Constitution only sap that life.

That puts a premium on the importance of judges and Justices applying the Constitution and the lesser laws enacted by our elected Representatives in Congress and our elected President as they are written.

The push-pull over the Constitution and the Supreme Court is a battle without end….

There is no legitimate push-pull here.  The Constitution does not belong to any judge, to interpret according to what he thinks it ought to say.  Nor does it belong to any Modern Liberal to interpret for his convenience.

The Constitution is We the People’s document, and it lives through us and our Article V.

Full stop.

Supreme Court Damage

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This is why we so desperately need a Republican President and a Republican Senate from 2017 on.

The Supreme Court split 4-4 Tuesday on a challenge brought by public school teachers who objected to paying union dues, delivering a big win for the unions[.]

The Liberal block on the Court has continued to vote in lock step, rather than on what the law actually says, this time damaging—as they surely know—not only the Free Speech Clause, but the Free Assembly Clause as well, of the 1st Amendment.

This particular ruling is not “final;” the split ruling only leaves intact the 9th Circuit’s ruling.  The appellate courts remain split on the matter, and a later, full court can hear another case along these lines and strike unions’ ability to collect dues from non-members and to use the dues from members and non-members for political purposes those dues payers do not approve.

That full Court badly needs a conservative, textualist Justice to replace Antonin Scalia.  Our Republic is badly endangered by a bloc-voting Liberal Court that sees the Constitution as malleable in accordance with their own interpretation of today’s needs rather than malleable only through Article V and the folks who make up today’s society, We the People.

The Need for a Republican President

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The need is starkly illustrated by a couple of developments involving cases, the Supreme Court, and Justice Antonin Scalia’s death.

One development is this:

Dow Chemical Co had agreed to pay $835 million to settle a class-action case rather than risk an appeal without the conservative justice.

The other is this:

The state Rifle and Pistol Association decided against filing a petition asking the Supreme Court to hear the case fearing the conservative Scalia’s death will make winning the case virtually impossible.

[Rifle and Pistol Association President and National Rifle Association board member, Tom] King said his lawyers advised that going forward could damage the case because the High Court at the very least would likely deliver a split 4-4 decision that would leave the law in place.

This puts a very high premium on electing a Republican president, so we have a good chance of nominating and confirming a conservative judge to the Supreme Court.

Orenstein’s Ruling

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…on the Apple case in New York. The Wall Street Journal‘s Law Blog has some notes on Orenstein’s ruling.

In a discussion of why the 1994 Communications Assistance for Law Enforcement Act (which in the context of this discussion authorized things like pen registers in telecommunications companies’ landline telephone switching centers to be attached to specific telephone circuits in response to a search warrant) wasn’t applicable to the New York case, Orenstein wrote

The absence from that comprehensive scheme of any requirement that Apple provide the assistance sought here implies a legislative decision to prohibit the imposition of such a duty. Thus, even under the government’s reading of the [All Writs Act], I would conclude that while the matter is a close call, the Application seeks an order that is not “agreeable to the usages and principles of law.”

And (here as summarized by the Law Blog) in answering a hypothetical in which the President proposed a bill requiring [Apple] to submit to the government in similar cases and the Congress unanimously rejected it:

Under the government’s reading of the All Writs Act, he says, the Justice Department could still seek an order compelling Apple’s assistance “because Congress had merely rejected the bill—however emphatically, and however clear its reasons for doing so—rather than affirmatively passing legislation to prohibit the executive branch’s proposal.” He describes that reading of the All Writs Act as “absurd.”

“Absurd” understates the case. Here’s what the Constitution says about what the government is permitted [sic] to do:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And

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.

If it’s not a specifically named capacity of the government to do, it is expressly forbidden the government. Full stop.

Misusing the Judicial System

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Here’s another cynical decision to bypass the legislative branch of our republican government design, this time by DoJ. Given the behavior of the Obama administration, though, this attitude is unsurprising.

A Federal judge in a New York drug case has ruled that Apple cannot be forced by the government to help crack a cell phone held by prosecutors and claimed by those prosecutors to have critical, if encrypted, information.

The judge wrote, in part,

How best to balance those interests [between privacy and security] is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago. But that debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive.

Indeed. That balance, where to draw the line, and how is a political decision, to be determined solely by us citizens through our elected representatives in Congress. Political decisions cannot be reached by judges; their role is strictly limited by our Constitution to determining the constitutionality of a law and if constitutional to applying it as written. Judges can not, may not, adjust a law to suit the government’s wishes.

Nevertheless, Justice will stay within the judicial system. A carefully unnamed (at least by the AP, whose article is at the link above) insisted on this:

We are disappointed in the Magistrate’s ruling and plan to ask the District Judge to review the matter in the coming days…. This phone may contain evidence that will assist us in an active criminal investigation and we will continue to use the judicial system in our attempt to obtain it.

We will continue to use the judicial system…. DoJ will continue deliberately to bypass Congress. DoJ will continue to seek to impose its own political will on us.