Wednesday, March 16, 2016

The Constitution Is Not A Mere List Of General Principles

I was in the car at 11 A.M. today and listened to the first part of President Obama's futile nomination of Judge Merrick Garland to replace Justice Scalia. It is a futile and empty gesture because the Senate has declared that they will not hold hearings until a new President is elected, sworn in and makes their own selection. The type of nominee to be selected to replace a towering legal intellect like Antonin Scalia will rightly be a major focus of the upcoming election. Of course President Obama nominated someone anyway. What was troubling about his statement occurred early in his speech at around the 00:41 mark. When I heard this in the car I caught this right away. I am sure others caught it as well but it really rang a warning bell for me. Here is the part that is at issue.
"The men and women who sit on the Supreme Court are the final arbiters of American law. They safeguard our rights. They ensure that our system is one of laws and not men. They're are charged with the essential task of applying principles put to paper more than two centuries ago to some of the most challenging questions of our times"
So what is wrong with that? At a glance it is just some political speech mumbo-jumbo, meaningless prattle especially from a man who has decreed that because he has a pen and a phone, he is within his imaginary Constitutional rights to make laws apart from Congress. What struck me though was the deeper meaning behind the carefully selected words in his announcement. This was no off-the-cuff speech.

There are two problems. First, President Obama said: " They (the justices of the Supreme Court) safeguard our rights".  Incorrect. The Supreme Court does not safeguard our rights. The Constitution safeguards our rights. The rights enshrined in the Constitution lay out rights, responsibilities and restrictions, the rights of the people and by proxy the states; the responsibilities of the three branches of the Federal government; and the myriad restrictions placed on that Federal e government. There are a lot more restrictions placed on the Federal government than there are areas of authority by the way. The Constitution is a document that places the people above the state and that has a bias toward the individual states over  the Federal government. I do not trust the Supreme Court, no matter who nominates the nine Justices, to safeguard my rights and our rights as a people. This is not without reason. Time and time again the Justcies have circumvented the very Constitution that they are sworn to uphold to either take away rights guaranteed by the Constitution or to create from their own imaginations new "rights" that have no mention or implication in the same Constitution (ex. the "right" to an abortion, the "right" of homosexuals to marry, etc.). The whimsy and prejudices of man are precisely why we have a very specific and limited Constitution, leaving little up to chance, at least when properly applied. So right away President Obama is showing either a naïveté about the nature of man or he is shrewdly exhibiting his own bias toward a super-Constitution activist Supreme Court that overrules the unwashed masses when they are not sufficienly enlightened.

The other problem is similar. President Obama said: "They're are charged with the essential task of applying principles put to paper more than two centuries ago ". This is also incorrect. The Constitution of the United States is not and never intended as a series of general and malleable principles that we apply selectively as we see fit based on the current whims of popular culture or the vagaries of the masses. Being a good neighbor is a principle. Always being honest is a principle. Principles have to do with beliefs and moral assumptions. The various articles and amendments that make up the Constitution are rather the governing laws of these United States, the highest law of the land. The President clearly sees the Supreme Court as a sort of super legislative branch, nine  unelected and essentially unimpeachable men and women who feel free and even encouraged to make law from the bench to override the laws made by the people and the states. When the Constitution is relegated to a mere set of guiding principles, it loses it's most powerful safeguards against encroaching tyranny, a very real threat when the Constitution was written and I would argue a very real threat today. President Obama has, I believe, a very different and a very dangerous notion of what the Constitution is and what it was intended to do compared to the men who actually wrote the document.

This sort of subtle deception by the President is precisely why I agree that the next President should be the one to appoint the next Supreme Court justice. If the people choose the next President foolishly, then we will have to live with that decision which quite possible could be the next and perhaps decisive step toward an end to the dream that is America and our Republic. If they choose wisely then we ought to see a principled nominee who will apply the Constitution under the restrictions placed on the Court and the entire Federal government by that same document. For once in my lifetime, let the people have a voice in how the Supreme Court will be constituted for the next several decades to come.

A quick note about the entire charade and the faux outrage by the Democrats. The authority to nominate a Supreme Court Justice does indeed reside in the office of the President. Please note that word: nominate. Under what conditions does a nominee become an appointee? The language of Article II, Section 2 of the Constitution is quite clear: "...and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the supreme Court..." (Emphasis mine) That is pretty clear. A nominee only becomes an appointee with both the advice and the consent of the Senate. No consent means no appointment and the nomination is null and void. I am sure that President Obama is aware of this but in the kabuki theater that is our government he still needs to play his part in this farce. I always point back to the hatchet job done to besmirch the character of one of the most qualified men to ever be nominated to the Supreme Court, Judge Robert Bork. With that atrocity perpetuated on a legal giant without peer in our generation the nominating process became completely politicized. To the Democrats I say: You made your bed, now you get to lie in it.

I will be writing my Senators to encourage them to deny a hearing and vote to Judge Merrick Garland. He seems like a decent man who has the unfortunate distinction of being a sacrificial lamb sent forth by the President. However he should not be the next Justice of the Supreme Court unless he is nominated in 2017 by our new President.

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