The battle for the Constitution

Townhall.com ^ | June 24, 2003 | Cal Thomas

[tdadams]

Gregory Peck, who died earlier this month, had many roles for which he will long be remembered. The one that may have had the most influence on this country was the "voice-over" he provided in 1987 for a TV commercial falsely characterizing Supreme Court nominee Robert Bork as favoring poll taxes and literacy tests, among other horrors.

The same liberal groups that "Borked" Bork are preparing a campaign against President Bush's nominee, should one or more justices retire. Sens. Tom Daschle (D-S.D.) and Patrick Leahy (D-Vt.) have called on President Bush to "consult " with them to avoid a "divisive confirmation fight."

What this nearly 40-year battle has been about is not just specific issues but the Constitution itself. Did the Founders know what they were doing when they wrote the greatest document ever penned by human hands that organized self-government for individuals, based on certain immutable principles, or were they merely creating an outline, the rest of which could be filled in as it pleased the courts? The answer to that question will determine the future of our country. We cannot afford to continue to get it wrong.

Since he was denied a seat on the court for which he was uniquely qualified, Robert Bork has produced a body of work that makes the case for returning to the "original intent" and understanding of the Constitution. He has consistently begged Americans to consider the history of the document and not how it has been "spun" by judges and advocacy groups into meaning what they want it to mean.

In a compelling essay, Bork again has taken on the argument for a "living Constitution" advanced by liberals who have used the courts, instead of the legislatures, to enact an agenda that would never have been embraced by elected officials for fear of voter backlash.

Writing in the publication The New Criterion (Nov. 21, 2002), Bork reviewed New York attorney Martin Garbus' book, Courting Disaster: The Supreme Court and the Unmaking of American Law."

Right (or in his case Left) from the start, Garbus claims the Supreme Court has been taken over by right-wingers (David Souter? Anthony Kennedy? Sandra Day O'Connor?). He sets up the ideological preview of coming liberal attractions that will demand Bush be stopped from putting "extremist " judges on the court. None of Garbus' assertions are true, but this is the "reality" liberals will create, and much of the media will willingly follow their lead.

The real issue, as Bork writes, is not naming "ultra-right ideologues" (Garbus' phrase), but whether "(Bush) will try to appoint justices and judges who interpret laws according to the understanding of the principles of those laws when they were enacted." This is an important point, because if laws are to be made by the courts, what is the purpose of Congress? Are we to be guided by the idea enunciated in 1803 at the dawn of our nation by Chief Justice John Marshall: "The government of the United States has been emphatically termed a government of laws and not men"? Constitutional attorney John Whitehead has written, "This meant that even the state, its agencies and its officials were under the law, not above it."

The opposite (and currently prevailing) view of the Constitution is the judicial philosophy of Justice Felix Frankfurter. Speaking of Supreme Court justices, Frankfurter said, "It is they who speak and not the Constitution." That view was echoed in a 1958 Supreme Court decision (Cooper vs. Aaron): "Article VI of the Constitution makes the Constitution the 'supreme law of the land' .. It is emphatically the province and duty of the judicial department to say what the law is .. It follows that the interpretation of the (Constitution) enunciated by this Court . is the supreme law of the land .."

When the Constitution is not the supreme law, the Supreme Court will inevitably come to see itself as the supreme law. Charles Evans Hughes, who became chief justice in 1930, remarked earlier: "The Constitution is what the judges say it is."

President Bush needs to give the public a brief history lesson as he nominates federal judges, and especially Supreme Court justices, if he is to counter the disinformation campaign now being prepared by those who would discard the Constitution and make up the law as it suits them.

[wysiwyg]

Bravo Cal!

[tdadams]

I agree with Cal's advocacy of a return to Constitutional authority, but I found it curious that he would quote Justice Marshall from 1803 as support, when it's was Justice Marshall, in the 1803 Marbury v. Madison decision that essentially created the notion that the law is whatever a majority of the Supreme Court says it is.

[TheCrusader]

Does Cal Thomas die his hair? It looks fake.

[the gillman@blacklagoon.com]

The Constitution is already gone and so is the republic. It can not be restored through the "process."

[Clock King]

Human beings don't really want democracy, they want power.

[the gillman@blacklagoon.com]

Then I must not be human, because I just want everyone to leave me in peace.

[m1911]

With the SCOTUS issuing rulings, everybody's talking about Marbury v. Madison.

If the SCOTUS isn't the final arbiter, who is?

IMO, it takes a unanimous decision by all three branches to make Federal law Constitutional. Any of the three can strike down a law as unConstitutional. The problem is with the rulings on State law, where only the SC gets a crack at it.

[wcbtinman]

"If the SCOTUS isn't the final arbiter, who is?"

The PEOPLE, as the founders intended. If you don't believe it, then ponder why the founders included the 2nd amendment.

The USSC may think they have the final word, but if they continue on their present path, they are going to get a rude awakening.

[George Frm Br00klyn Park]

"justices and judges who interpret laws according to the understanding of the principles of those laws when they were enacted." This is an important point, because if laws are to be made by the courts, what is the purpose of Congress? Are we to be guided by the idea enunciated in 1803 at the dawn of our nation by Chief Justice John Marshall: "The government of the United States has been emphatically termed a government of laws and not men"? Constitutional attorney John Whitehead has written, "This meant that even the state, its agencies and its officials were under the law, not above it.""
===================================

TDA, Wasn't the "1803 Marbury v. Madison " case about having a dureaucrat doing his sworn duty under his job description? Didn't the "court" decide that a Presidentially appointed and Senate confirmed leader{?} must be sworn in and "seated" by the appropriate official "under the law"?

IMHO, the only problem with the decision was the words of one justice who said erroniously that the court was the only deciding factor. Stupid words that have been taken "out of context" in order to give the "court" supreme power. But, those "out of context" words have led many a judge astray {good and/or bad} to the absolute detriment of the U.S. of A. Constitution with it's attendent Amendments. And, bringing the U.S. of A. to a point NOT "under the law", but under the whims of 9 justices of any given day. Peace and love, George.

[Noachian]

When all is said an done this nation is still a government of the people, and if the Constitution has been neutered by non-elected judges then it is the people who have allowed it to happen.

The Constitution is immutable - society isn't.

The Constitution cannot be restored to it's original intent because the people that founded that most perfect document have changed. Cowering into sniveling factions of self-importance and self delusion the majority of today's American society could not conceive of what the Founding Fathers found to be so obvious.

The future holds little promise. Today's students can barely read, they have a skewed view of history, and their knowledge of government lay in the hands of liberal-socialist academics with a self-hated mentality. Add to that immigration policies that allow people with UnAmerican agendas to participate in government and it's obvious that at some point this nation will be balkinized.

There are still people that will fight for the Constitution they believe in rather than the Constitutional interpertations foisted on them by judges with absolute power. Such people are few and most have little or no power except at a local level. Still, they can have an influence if they choose to do so.

Freedom takes work, it doesn't come free, and sometimes it can kill you.

[boris]

"Does Cal Thomas die his hair? It looks fake."

It's already dead. He uses cast-off toupes from Sam Donaldson.

--Boris

[tdadams]

Marbury vs. Madison is the 1803 decision that legal scholars consider as having established "judicial review" in which the courts, and the Supreme Court in particular, have the right to determine the constitutionality of all laws.

[m1911]

The founders intended for the people to hold a plebescite every time a Constitutional question arose?

Or did they want a civil war whenever people disagreed on whether a search and seizure was reasonable?

[George Frm Br00klyn Park]

Marbury vs. Madison is the 1803 decision that legal scholars consider as having established "judicial review" in which the courts, and the Supreme Court in particular, have the right to determine the constitutionality of all laws.
============================

TDA, I know that this has been taught for a long time in our institutions of higher learning by "legal scholars". But, the "decision" itself doesn't establish any such thing. Under the U.S. of A. Constitution, it is the justices sworn duty to determine the constitutionality of all laws.

I forget the exact words of the opinion, but it is the words of the justice who wrote the opinion that have been used to create the judicial fiat of "judicial activism", and allowed "activist" judges to actually create law. And thus rendering the U.S. of A. a nation of the whims of nine individuals on any given day rather than the rule of law under the Constitution of the U.S. of A. with it's attendent amendments.

Also, "local" "activist" jurists have "interpreted" local and national Constitutions to allow themselves to issue "consent decrees" that carry {illegally} the color of law and the force of government. They are wrong. As are activist at the federal level who "interpret" words beyond any intended meaning of those words in order to facillitate {under the color of law and force of government without legitimacy} their whims of the day. An excellent example is the St.Louis{?} judge who actually created taxation with the force of law for schools. The same thing has been done here in Baltimore County with a "consent Decree" between sueing parties and collaborative parties in County Government regarding education. "Consent Decrees" never see the light of a public courtroom, but are negotiated behind closed doors of judicial chambers and other backrooms, and then presented to the public as a "done deal". Since both parties in the suit are "harmonious" with the outcome, the decree is never questioned in a court, and rarely if ever by legislators.

Judicial "scholars" have been teaching a LIE in our institutions of higher learning for years when they teach that "The 'court' has the authority {power} to "interpret" the words of Constitutions." NOWHERE in any Constitution worthy of the name is that power granted. < / rant > Peace and love, George.

[tpaine]

If the SCOTUS isn't the final arbiter, who is?
-m1911-



The people 'arbite' the plain words of our constitution, and all branches of government including the courts are bound by those words.
Thus, Marshalls concluding argument in M v M; --
---- "courts, as well as other departments, are bound by that instrument":

"It is also not entirely unworthy of observation that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank."

"Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."

"The rule must be discharged."
Source: 1 Cranch 137 (1803).



Marbury v. Madison (1803)
Address:http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm

[m1911]

Lovely. How does that work day to day? When do I get my questionnaire on the issues currently before the SCOTUS?

I understand and heartily agree that we, the people are the final arbiters. I don't see any practical way to put that into action when Constitutional questions arise.

[tpaine]

Jury nullification of repugnant laws are the only form of direct power most citizens can ever use; --- aside from the power to vote the rascals out, of course.

The real problem of 'voting em out' arises when, like now, the rinocrats are the only voting option.

Civil disobedience on a massive scale will eventually decide this whole issue, imo. And this will not happen till the Administation/USSC uses "affirmative action/compelling interest" to clearly violate a basic right such as the RKBAs..
-- And it is only a matter of time till they do exactly that...

[FierceDraka]

The Constitution is already gone and so is the republic. It can not be restored through the "process."

Unfortunately, I must say that I agree with you. I think it's time we started re-reading the Declaration of Independence. (Opens in new window) It seems to be as relevant today as it was in 1776.

Regarding the Declaration, in the word of my grandpappy, "Them's fightin' words!"

[m1911]

That's the best answer I've gotten to that question yet. Thanks.