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Posted on 07/08/2003 10:19:36 AM PDT by Congressman Billybob
Last weekend, Justices Stephen G. Breyer and Sandra Day O'Connor appeared on ABC News' "This Week," hosted by George Stephanopoulos. Most of you may have missed that show – it has descended to its lowest rating from its high when the late, great David Brinkley was the host.
Justice Breyer made the following extraordinary comment on that show: "Through commerce, through globalization, through the spread of democratic institutions, through immigration to America, it's becoming more and more one world of many different kinds of people. And how they're going to live together across the world will be the challenge, and whether our Constitution and how it fits into the governing documents of other nations, I think will be a challenge for the next generations."
The comment was made in the course of discussing Lawrence v. Texas, the June 26th decision that struck the sodomy laws of 16 states, by a vote of 6-3 among the Justices. Justice Breyer had agreed with Justice Kennedy (who wrote the opinion) that members of the Court should look to foreign courts and foreign laws in deciding what laws should apply in the United States.
There was, of course, a blistering dissent, pointing out that the US Constitution becomes meaningless if its application is determined by the personal views of the Justices, especially when picking and choosing among the laws of foreign jurisdictions. These columns are written mostly for laymen, not lawyers, so by main force I will avoid the temptation to dive into a detailed legal discussion of constitutional jurisprudence.
The basic importance of having a written Constitution, either ours or that of any other nation, can be explained with the all-purpose lead that all of us have encountered in all too many wire service reports over the years:
"Dateline: CAPITOL, NATION, DATE
Col. NAME took over the nation of NAME in [AFRICA or SOUTH AMERICA] today. He shot his way into the Presidential Palace, captured the TV station, and suspended the Constitution. The whereabouts of former President NAME are currently unknown."
The point, of course, is that constitutions are not self-enforcing. And whenever anyone in any society wants more power than the existing constitution allows, it is a simple matter to suspend the Constitution if he can get away with it. It matters not whether the person seizing additional power is a well-armed Colonel or a well-ensconced Justice of the Supreme Court.
Is this too harsh a judgment of Justice Breyer and his colleagues in the majority in the Lawrence case? I think not.
Who possesses the power under the US Constitution to amend it? The document itself gives the answer. In Article V, the power to amend is given in four possible permutations to the Congress of the United States or to a new Constitutional Convention, and to the state legislatures, or alternatively to conventions in the several states. If the Constitution is to be obeyed, those are the only ways the document can be amended.
The President of the United States, the Governors of the states and the Supreme Court of the United States have absolutely no power to amend the Constitution. However, the Court is in the position to claim the power to amend – if it can get away with it.
The US Constitution has endured for 214 years – longer than any other written constitution in the history of mankind – in part because it is difficult to amend, and its changes must be well thought out and generally agreed to. As Madison, Hamilton and Jay wrote in the Federalist, it should not be amended by "the mere whim of a majority." And that meant a majority of the people. They never conceived of the possibility that a majority of the Court might undertake amendments.
Those three men – one the "Father of the Constitution," another a key delegate at the Philadelphia Convention, and the third later to serve as Chief Justice -- wrote in the Federalist, Number 78, that the federal courts should have "neither FORCE nor WILL, but merely judgment...." By that they meant the judges could decide the cases before them, but they were not to inject their personal opinions into those cases or into the law itself. The strength of these authors' opinions about the proper role of judges is underscored by the fact that these are the only two words in the whole of the Federalist which are capitalized for emphasis.
In the Lawrence case, the majority pointed out that the states were in the process of getting rid of their sodomy laws. While a generation ago such laws were nearly universal, by the time this case was decided, just sixteen states had not repealed such laws. Therefore, the Court took it upon itself to repeal all remaining sodomy laws. But repealing laws because a majority of the Court disagree with them is NOT part of the authority of the Supreme Court. It is the metaphoric equivalent of shooting their way into the Presidential Palace.
Each state is free to pass, or repeal, such laws as its legislature deems appropriate for the citizens of that state. And if the citizens of that state are dissatisfied with the choices their legislature makes, they are free to reject them and elect others with different views to take their places. That's why policy judgments about laws of any time are rightly and necessarily left to elected officials – the ultimate power remains in the hands of the sovereign people.
There is no corrective when Justices start acting as legislators, and start enacting or repealing laws as they deem fit. Justices serve for life, and never answer to the sovereign people. And that is exactly why the Federalist says that judges should exercise "neither FORCE nor WILL, but merely judgment ....."
What the Court was doing in the Lawrence case, it lacked the courage to state in plain English. The Court decided that certain laws passed and left standing by sixteen legislatures were too stupid to be allowed to stand. But if mere stupidity were grounds to declare anything unconstitutional, a fair number of laws from Congress, the better part of all federal administrative regulations, and a significant number of the Court's own decisions would fall of their own weight.
When it comes to the laws, only the Congress and the legislatures have the "right to be wrong." They make the policy judgments, because the voice of the people can correct them when they make mistakes. The same philosophy applies to the Constitution itself. One can argue about several amendments to the Constitution, but one of them is a clear mistake. The Eighteenth Amendment established Prohibition. Once the error was clear, the Twenty-First Amendment ended Prohibition. The overriding point is, however, that the error was both made and then corrected by the will of the people, acting through Congress and the states.
Where is the correction when the Supreme Court steals from the people their sovereign power, and wrongfully claims the authority to amend the Constitution?
For those who have been reading these columns for the whole seven years, I apologize for reusing a familiar quote, but it must be stated here again. As George Washington advised in his Farewell Address to the American People:
"Until changed by the authentic act of the whole people, the Constitution is sacredly obligatory upon all."
For the benefit of Justice Breyer and others who haven't read the Constitution with care and clarity, let's take Washington's admonition apart, brick by brick. The "authentic act of the whole people" means the supra-majorities in both Congress and among the states, as required by the amendment article. "Sacredly obligatory" means, as Benjamin Franklin pointed out, the shared commitment to our Constitution, which is America's "secular religion."
And in case Justice Breyer has missed the point so far, a majority vote among the Justices of the Supreme Court is no act at all on behalf of the people, much less the authentic act of the whole people. If the Constitution does not survive another century, as Justice Breyer mused on ABC News, it will not be global events or technology which brought it down. It will be the gross intellectual stupidity of the likes of Stephen Breyer, who is, unfortunately, a member of the Supreme Court.
- 30 - (C) 2003 Congressman Billybob. All rights reserved.
I preferred to roast Justice Breyer over the coals, since he is wrong almost 100% of the time.
Enjoy.
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FreeRepublic , LLC PO BOX 9771 FRESNO, CA 93794
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Perhaps he himself should go somewhere that has laws he likes and leave ours for those of us who don't believe in "fitting in" US law with foreign laws of places like France and Germany. Just shows what a task President Bush will have with the next Supreme Court vacancy, getting a nominee past Senators who think like the horrible Breyer.
There was a Baptist minister in Alabama about ten years ago who showed how truly irrelevant the federal courts have become.
This guy used to serve as a "chaplain" of sorts for a small-town high school in rural Alabama, and one of the "duties" he took upon himself was to lead the home crowd in prayer before every football game. The school was sued in federal court by an atheist student on the grounds that this was a violation of church/state separation, and the minister was ordered to cease and desist.
Rather than appeal the case, the minister simply announced that he was going to continue leading the crowd in prayer before every home game, and that the federal judge who ruled in the case was welcome to come on down and arrest him, kiss his @ss, or do whatever the hell he felt like doing. As far as I know, that Baptist preacher is still doing his "duties" to this day.
This story is relevant today because of the issue with those stone tablets with the Ten Commandments that have been ordered removed from an Alabama courtroom by a federal court. The Alabama judge in that case has basically told the federal courts to go f#ck off, and based on the current political/economic climate in this country I'm certain that "f#ck off" is exactly what the federal courts are going to do.
There's a reason why two dopey sh!ts like Breyer and O'Connor have been relegated to making appearances on a Sunday talk show with lower ratings than a "Dukes of Hazzard" re-run. At a time when 9/11 is still fresh in people's minds, when daily casualty reports are still coming back from Iraq, and when a lot of people aren't so sure if their bills are going to be paid next month, the number of people who really consider it important to grant legal protection to men who wish to bury salamis in each other's rear ends is extremely small.
Quite frankly, I wouldn't even be aware of most U.S. Supreme Court decisions if they weren't posted here on FreeRepublic.
I think this is a good point. There is a quote from President Andrew Jackson after the Supreme Court (largely a one man show at the time) made a decision. "Justice Marshall has made his decision. Now, let's see him enforce it."
I think the US Supreme Court, and other Federal Courts can and should be ignored on some of these issues. It would be politically unpopular for either Congress or the Executive branch to enforce some of these lame-brained decisions.
Where do you get such nonsense? Whatever Europe does is neither precedent nor controlling over U.S. cases. The opinion in Lawrence does nothing to give the slightest impression to the contrary.
There's nothing wrong with looking at how other countries handle similar circumstances for illumination. That does nothing to cede our nation's sovereignty.
Grossly unfortunately, the Court went far beyond that logical basis and far beyond the Constitution. It continued the invention of rights by the Court, and amendment of the Constitution by the Court, which began in Griswold v. Connecticut, the contraceptives case that was manufactured and went up to the Court when I was still hanging my hat in New Haven.
My law professors attempted to teach me that Griswold, then Roe and now presumably Lawrence were "good" decisions by that Court. I have since learned on my own that these were rotten decisions that sabotage the very meaning of the Constitution.
Congressman Billybob
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