The Supreme Court Fails To Understand Its Job--And Even For Whom It Works

"It is not our job to protect the people from the consequences of their political choices." ~ Justice Roberts, NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS

Oh, but it is: There is no reason to have a Supreme Court as a coequal branch of government with the power of judicial review otherwise. None at all.

It is easy to find examples where the Founders who wrote the Constitution, and whose quotes so eloquently explain principles of good government, violated their own principles—both in their personal lives, and in their actions as government officials.

The most infamous example is the fact that they permitted slavery to exist, and even accounted for its existence in the Constitution they wrote by having slaves counted as 3/5ths of a person by the census [1]. By implication that provision effectively condoned slavery in States that allowed it.

Many of the Founders vigorously opposed the Alien & Sedition Acts as Unconstitutional. The President who passed them [Adams] was one of the Founders.

Thomas Jefferson was opposed to Congress having a general power to borrow money. As President, he nevertheless used borrowed funds to purchase Louisiana from France--so that the French would have the necessary funds to help the US defend itself against Britain.

There was vociferous objection by many of the Founders to the idea that Congress had any grant of authority to establish a National Bank. Other Founders—notably Alexander Hamilton—disagreed.

Power corrupts. Even the Founders were affected, once they acquired power. That's why, when they did not have power, but were considering how a future government should operate as an abstract theoretical matter and not in the heat of a particular political fight, their consensus of opinion was that the power granted to the government must be limited—both by explicitly-stated limitations on the powers granted to the government, and also by implicit (but strong!) denial of any authority not explicitly granted.

And that's also why they formed a government with three coequal branches, and why they only granted the power to make or change laws to Congress, only granted the power to implement what the laws required to the President, and only granted the power to be the ultimate judge of what the law means and how it applies in particular situations to the Supreme Court.

Every aspect of that architecture—now known as the separation of powers—was intended to prevent the United States from suffering the same fate as had the Roman Republic, as it devolved into the Roman Empire.

When they were drafting and then ratifying the Constitution, they sold it to the public with this understanding: The Supreme Court's core function, assignment and responsibility would be to ensure that the government they were proposing would both stay squarely within the limits defined by what the Constitution explicitly allows, and that said government would not escape the bars of its Constitutional cage by doing whatever is not explicitly allowed nor what is explicitly prohibited.

As Alexander Hamilton expressed it in Federalist #78 [see linked article]:

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority."

Compare that to what Justice Roberts said in his majority opinion on the individual mandate penalty that he rewrote as a tax:

"Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. “Proper respect for a co-ordinate branch of the government” requires that we strike down an Act of Congress only if “the lack of constitutional authority to pass [the] act in question is clearly demonstrated.” United States v. Harris, 106 U. S. 629, 635 (1883). Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices." ~ NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS

Proper respect is owed first, and with infinite precedence, to the super-majority that ratified the Constitution and also to the individual rights of the people. The core, foundational reason the Federal government was established and granted by means of a written Constitution specifically-enumerated and therefor limited powers and authorities was not to create a role playing game for politicians and bureaucrats, nor to provide jobs for those who enjoy wielding power and the cheering of crowds.

The Federal government was created, and the Constitution that authorizes it to exist and operate was written, in order to protect and defend the people—as individuals!—from enemies, both foreign and domestic, who might seek to violate their rights. Foremost among those potential enemies was the government itself:

"The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first." ~ Thomas Jefferson

So it is not the duty of judges to make extraordinary attempts to interpret the Constitution so that Congress, the President or the States will mostly be able to exercise any and all authorities they claim to have, while only invalidating laws as Unconstitutional when not doing so would make the Court seem so dishonest that it would "shock the conscience" and delegitimize the Federal government and its courts.

The role of judges as intended by our Founders was to make sure that the rights of the people would not be violated by anyone—especially not by the government they created for the express purpose of preventing any such violations. The responsibility of the judges is to interpret the rights of individuals as broadly as possible, and consequently to interpret the authorities granted to the government as narrowly as possible.

As the Constitution itself says, immediately after enumerating the powers granted to Congress in Article I, section 8:

"The Congress shall have Power...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

There is no way those words were ever intended as a general grant of power beyond those that had just been explicitly enumerated. Had that been the case, why bother enumerating any grants of authority at all? Clearly, those words were intended as yet an additional restriction on the powers granted, so that to be Constitutional, the laws that Congress makes must not only be honest attempts to use a granted authority, but must also be necessary for that purpose, and must also be proper (rightful.)

It is never "proper," never rightful, to violate the rights of individuals. Never. That means that the correct interpretation of the "necessary and proper" clause is that, although Congress may "build post roads," it may not kill people in order to do so, because that would not be proper (rightful,) no matter how "necessary" it might be in order to build a post road in some specific case. The same holds for any other individual right, and for any other granted power.

Footnotes

[1] The Founders required that slaves be counted as only 3/5ths of a person in order to reduce the political power in the House of the Southern States. By their own principles, they shouldn't have permitted those who weren't granted the privilege to vote to be used to allocate House seats at all. Not counting those who couldn't vote would encourage States to more widely grant the right to vote, and discourage them from witholding it, since a State's influence in Congress depends upon the size of its Congressional delegation. Had they done it that way, the South might have had to grant slaves the right to vote in order to defend themselves as against the voting power of the Northern States in Congress. Which of course is why the Southern States insisted on counting the slaves in the census, and why the Northern states compromised by agreeing that slaves could be counted as only 3/5ths of a person.

Great article, will use its premise in conversations.

marker

~~The Supreme Court~~ John Roberts Fails To Understand ~~Its~~ his Job--And Even For Whom It he Works

The SC is just as corrupt as the rest of the Federal Government. Stop fooling ourselves, we are about as close to a pure communists dictatorship as in any point in our history.

"John Roberts Fails To Understand his Job--And Even For Whom he Works"

Roberts showed us what a corrupt judiciary means. He did this for one of two reasons: to show us while we could still do something about it, or because he has been corrupted.

Any bets which one it is?

Find any tax indirect tax (not on property or a capitation tax) that's ever been imposed in the US (or in Britain, for that matter) on an event that didn't occur.

There is a way to achieve that affect using the income tax. But it requires the use a combination of a tax credit rewarding the desired action (which is denied to those who don't so act—such as failing to buy health insurance) and (if the changes must be revenue neutral) rate increases or reducing deductions.

But Congress clearly did not do any such thing.

What does that tell you?

My bets on the latter.

Oh but y’all don’t understand. JR is a a “progressive” Jurist living in a very “progressive” town. And history suggests No matter how “conservative” a Judge may be when appointed— Despite the best intentions —or supposed intentions— of the men who nominate and of those who supposedly give non-partisan support for such nomination — Judges it seems always get pulled to the left the longer they sit on that bench.Without a firm grounding in our written Constitution and perhaps more important (as it seems to have been more important in our Founding Fathers as well) Unless a Judge knows who he/she/ it is under God they tend to be blown about by any wind that comes.

Alexander Hamilton could not have been more clear. Apparently Robert's does not review the Constitution or reflect on the Federalist papers before making judicial decisions. Robert's has effectively made the Supreme Court an extension of the Congress. We are currently under a dictatorship with tyranny being committed against we the people by all branches of government.

It therefore belongs to them (Supreme Court) to ascertain its (the Constitution) meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Federalist Paper #78
Alexander Hamilton

The Supreme Court Fails To Understand Its Job--And Even For Whom It Works

Yes it has but they are certainly not alone there. The other two branches DEFINITELY don't understand their roles or oaths either!

The Congress is every bit as responsible for upholding the Constitution, perhaps even more so, as the judicial branch is! They have in their power the ability to rein in rogue courts and the members there of but unless and until they decide to make use of that power the Constitution isn't worth the parchment it's written on!