Wednesday, June 08, 2005

A Living, Breathing Anarchy

The Framers knew what they were doing. The were far better educated in government, ethics, and philosophy than are our politicians and judges today. Each word of the Constitution was debated and discussed. Justice James Wilson was a lawyer and judge, as well as a signatory of both the Declaration and the Constitution, and he suggested “the first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.” When interpreting the Constitution, Thomas Jefferson suggested we “carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” James Madison had a dire warning: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security...What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.” George Washington’s warning was prophetic: “If, in the opinion of the people, the distribution or the modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But let there be no change by usurpation, for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

With almost unimaginable hubris, our modern academics, legislators and jurists, who “stand on the shoulders of giants,” have come to believe themselves to be the giants. Justice Earl Warren took the position that a Constitutional “Amendment must draw its meaning from the evolving standards of decency that mark the progress of maturing society.” Justice Charles Evans Hughes went further: “We are under a Constitution, but the Constitution is what the judges say it is.” These opinions reflect a popular philosophy known as the “theory of social interests” which was advanced by Roscoe Pound. Oddly, Pound was not a lawyer - he studied at Harvard for only one year and held no law degree. That didn’t stop him from practicing and even teaching law in Nebraska. Amazingly, he became a professor of law and even dean at Harvard Law School! Despite his groundless background he became a leader of the new liberal movement for social justice. He charged his students, lawyers, and judges with “the same task that has been achieved in philosophy, in the natural sciences, and in politics. We have to rid ourselves of this sort of legality and to attain a pragmatic, a sociological legal science.”

In the decades since Pound, Evans, and Warren the concept of a “living, breathing Constitution” has taken root and like a pernicious weed as spread choking off the stability that the bedrock of law provided for over a hundred years. Because the law is not considered an anchor judges could decide in 1892 that the United States is “a Christian nation” (Church of the Holy Trinity v. U.S.) and then change course in 1947 claiming “the First Amendment has erected a wall of separation between church and state. (Everson v. Board of Education)” In the modern era, the law is a weathervane, pointing towards whichever social project the judges favor: in 1896 (Plessy v. Ferguson) the court approved racial segregation in schools, but reversed that opinion in 1954 (Brown v. Board of Education), only to find that the Constitution did indeed allow racial segregation in 1971 (Swann v. Charlotte-Mecklenburg Bd. of Ed.). Of course, the Constitution is silent on racial segregation in education which means the Court should have deferred to the States in keeping with Articles Nine and Ten which provide unenumerated powers and rights to the States and the People.

An originalist, or constructionist, Judge James DeWeese wrote “the only life the law has is in it’s fixed meaning. If the law has no fixed meaning, it can not guarantee any fixed rights or duties.” An originalist harkens back to “sense in which the Constitution was accepted and ratified by the nation (Madison).” Such a judge could not find the right to abortion in the Constitution and would have upheld the States position that abortion is not contraception and should only be legal to save the life of the mother. An originalist would recognize that Article V provides for the death penalty without regard to the race, sex, or age of the criminal. An origianlist would have seen through the smokescreen of corruption and struck down the McCain-Fiengold Campaign Finance Reform Law as abridging the First Amendment freedom of speech. An originalist is the liberals’ worst nightmare because such a judge does not kowtow to special interest “and instead of trying what meaning may be squeezed out of the text, or invented against it, conform[s] to the probable one in which it was passed (Jefferson).” President Bush and the Republican party supports and nominates originalist judges in the hope that they can return the judiciary to the ‘straight and narrow’ course.

For a time, Presidents considered the American Bar Association’s ratings of judges in selecting nominees, but recognizing a transition from rating to ranting, President George W. Bush stopped that practice. Senators Leahy and Schumer insisted, in contravention of the Constitution, that they would “work to ensure they [ABA] play a role in the Senate confirmation process.” This should come as no surprise. For ages, the Left has been consulting with everyone except the Constitution in selecting nominees. Thanks to a leak of blockbuster memos, we now have a clear view of the confirmation process used by Senate Democrats. Less than one month after 9/11, Senator Durbin received a memo (Nov. 6, 2001) which scheduled a follow-up meeting “with leaders of several civil rights organizations to discuss their serious concerns with the judicial nomination process. The leaders will likely include: Ralph Neas (People for the American Way), Kate Michelman (NARAL), Nan Aron (Alliance for Justice), Wade Henderson (Leadership Conference on Civil Rights), Leslie Proll (NAACP Legal Defense and Education Fund), Nancy Zirkin (American Association of University Women), Marcia Greenberger (National Women’s Law Center), and Jucy Lichtman (National Partnership)...the groups would like to postpone action on these nominations until next year, when (presumably) the public will be more tolerant of partisan dissent...they think Senator Leahy should use controversial nominees as bargaining chips...there will likely be discussion about how to respond effectively to recent Republican charges that the pace of judicial nominations is too slow.”

Senator Kennedy received a memo (April 17, 2002) outlining instructions from Elaine Jones (NAACP LDF) for Kennedy to “ask that the Judiciary Committee consider scheduling Julia Scott Gibbons, the uncontroversial nominee to the 6th Circuit at a later date...Chairman Leahy would like to schedule a hearing next Thursday on a 6th Circuit nominee because the Circuit has only 9 active judges, rather than the authorized 16...Elaine would like the Committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action in higher education is decided by the en banc 6th Circuit...the thinking is the current 6th Circuit will sustain the affirmative action program...LDF asked Senator Leahy’s staff yesterday to [reschedule] but they refused.” Senator Kennedy indicated he would comply and attempt to sway Senator Leahy. In case you missed it: Senator Kennedy is willing to let a court with half its chairs empty languish because a special interest group wants to engineer a decision of Constitutional law. In fact, this very issue had already been decided in the Bakke case and “affirmative action in higher education” was struck down.

A June, 4th 2002 memo to Senator Kennedy suggested that “groups should be encouraged to propose some specific nominees who can be moved forward before adjournment.” Senator Durbin got a memo the next day from a cabal of special interest groups outlining what strategies he should use on the floor of the Senate and what the schedule for confirmations should be. Senator Kennedy received a similar memo on June 12, 2002 which included this note: “it appears that the groups are willing to let Tymkovich go through (the core of the coalition made that decision last night, but they are checking with the gay rights groups).” It could be remarked that special interest groups have a right to speak their mind and that would be true. However, the essence and tone of these memos is not “speaking one’s mind,” it’s specific direction often in contravention of the Constitution, as well as against the interests of the people of America. If you don’t believe the memos carry weight, consider an email from Allison Hewitt of NARAL on April 2, 2003: “At any time Senate leaders may bring the nomination of Priscilla Owen to the Fifth Circuit Court to the floor for a full Senate vote. NARAL Pro-Choice America strongly opposes this nomination and will score this vote in the 2003 Congressional Record on Choice.” Do what we tell you or we’ll cost you in your next election. That’s how Senate Democrats decide who gets nominated, who gets obstructed, what is said about a nominee, when a vote his held, and how to vote.

The behavior of the Senate Democrats is disingenuous, unethical, and probably unconstitutional. The facts, which they obfuscate at every opportunity, simply do not support their position. As the Democrats know full well, Senators Lieberman (D-CT) and Harkin (D-IA) introduced a bill in 1995 to “change Senate rules” and eliminate ALL filibusters. The bill was defeated and had support from only 17 other Democrat Senators ~ including Ted Kennedy and John Kerry! When he lost the election, Al Gore’s first response was to turn to the courts rather than trust the election laws that “we the people” had instituted. When challenging abortion, the Left didn’t seek a referendum, they went to court. Education reform by the Left is instituted by the court system. When “we the people” go to the polls and state our will by election, the courts overturn us by judicial fiat! The liberal Democrat agenda rarely wins in election; instead, campaigns stay fluid and general, not specific. Surveys and studies show the propensity of this country for conservative values. The only path to long-term ratification of an agenda for the left is with unelected judges who are willing to “rid [them]selves of this sort of attain a pragmatic, a sociological legal science.”

Next week, concluding this issue: exposing the transparent lie of the Left.


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