Posted on 06/26/2015 4:00:53 PM PDT by Isara
This week, we have twice seen Supreme Court justices violating their judicial oaths. Yesterday, the justices rewrote Obamacare, yet again, in order to force this failed law on the American people. Today, the Court doubled down with a 5–4 opinion that undermines not just the definition of marriage, but the very foundations of our representative form of government.
Both decisions were judicial activism, plain and simple. Both were lawless.
As Justice Scalia put it regarding Obamacare, “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’ . . . We should start calling this law SCOTUSCare.” And as he observed regarding marriage, “Today’s decree says that . . . the Ruler of 320 million Americans coast-to-coast is a majority of the nine lawyers on the Supreme Court.”
Sadly, the political reaction from the leaders of my party is all too predictable. They will pretend to be incensed, and then plan to do absolutely nothing.
That is unacceptable. On the substantive front, I have already introduced a constitutional amendment to preserve the authority of elected state legislatures to define marriage as the union of one man and one woman, and also legislation stripping the federal courts of jurisdiction over legal assaults on marriage. And the 2016 election has now been transformed into a referendum on Obamacare; in 2017, I believe, a Republican president will sign legislation finally repealing that disastrous law.
But there is a broader problem: The Court’s brazen action undermines its very legitimacy. As Justice Scalia powerfully explained,
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before the fall. . . . With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.
This must stop. Liberty is in the balance.
Not only are the Court’s opinions untethered to reason and logic, they are also alien to our constitutional system of limited and divided government. By redefining the meaning of common words, and redesigning the most basic human institutions, this Court has crossed from the realm of activism into the arena of oligarchy.
This week’s opinions are but the latest in a long line of judicial assaults on our Constitution and the common-sense values that have made America great. During the past 50 years, the Court has condemned millions of innocent unborn children to death, banished God from our schools and public squares, extended constitutional protections to prisoners of war on foreign soil, authorized the confiscation of property from one private owner to transfer it to another, and has now required all Americans to purchase a specific product, and to accept the redefinition of an institution ordained by God and long predating the formation of the Court.
Enough is enough.
Over the last several decades, many attempts have been made to compel the Court to abide by the Constitution. But, as Justice Alito put it, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.”
In the case of marriage, a majority of states passed laws or state constitutional amendments to affirm the definition of marriage as between one man and one woman. At the federal level, the Congress and President Clinton enacted the Defense of Marriage Act. When it comes to marriage, the Court has clearly demonstrated an unwillingness to remain constrained by the Constitution.
Similarly, the Court has now twice engaged in constitutional contortionism in order to preserve Obamacare. If the Court is unwilling to abide by the specific language of our laws as written, and if it is unhindered by the clear intent of the people’s elected representatives, our constitutional options for reasserting our authority over our government are limited.
The Framers of our Constitution, despite their foresight and wisdom, did not anticipate judicial tyranny on this scale. The Constitution explicitly provides that justices “shall hold their Offices during good Behaviour,” and this is a standard they are not remotely meeting. The Framers thought Congress’s “power of instituting impeachments,” as Alexander Hamilton argued in the Federalist Papers, would be an “important constitutional check” on the judicial branch and would provide “a complete security” against the justices’ “deliberate usurpations of the authority of the legislature.”
The Framers underestimated the justices’ craving for legislative power, and they overestimated the Congress’s backbone to curb it.
But the Framers underestimated the justices’ craving for legislative power, and they overestimated the Congress’s backbone to curb it. It was clear even before the end of the founding era that the threat of impeachment was, in Thomas Jefferson’s words, “not even a scarecrow” to the justices. Today, the remedy of impeachment — the only one provided under our Constitution to cure judicial tyranny — is still no remedy at all. A Senate that cannot muster 51 votes to block an attorney-general nominee openly committed to continue an unprecedented course of executive-branch lawlessness can hardly be expected to muster the 67 votes needed to impeach an Anthony Kennedy.
The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself. The decisions that have deformed our constitutional order and have debased our culture are but symptoms of the disease of liberal judicial activism that has infected our judiciary. A remedy is needed that will restore health to the sick man in our constitutional system.
Rendering the justices directly accountable to the people would provide such a remedy. Twenty states have now adopted some form of judicial retention elections, and the experience of these states demonstrates that giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability. It also restores respect for the rule of law to courts that have systematically imposed their personal moral values in the guise of constitutional rulings. The courts in these states have not been politicized by this check on their power, nor have judges been removed indiscriminately or wholesale. Americans are a patient, forgiving people. We do not pass judgment rashly.
Yet we are a people who believe, in the words of our Declaration of Independence that “when a long train of abuses and usurpations . . . evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.” In California, the people said enough is enough in 1986, and removed from office three activist justices who had repeatedly contorted the state constitution to effectively outlaw capital punishment, no matter how savage the crime. The people of Nebraska likewise removed a justice who had twice disfigured that state’s constitution to overturn the people’s decision to subject state legislators to term limits. And in 2010, the voters of Iowa removed three justices who had, like the Supreme Court in Obergefell, invented a constitutional right to same-sex marriage.
Judicial retention elections have worked in states across America; they will work for America. In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants, I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.
As a constitutional conservative, I do not make this proposal lightly. I began my career as a law clerk to Chief Justice William Rehnquist — one of our nation’s greatest chief justices — and I have spent over a decade litigating before the Supreme Court. I revere that institution, and have no doubt that Rehnquist would be heartbroken at what has befallen our highest court.
The Court’s hubris and thirst for power have reached unprecedented levels. And that calls for meaningful action, lest Congress be guilty of acquiescing to this assault on the rule of law.
But, sadly, the Court’s hubris and thirst for power have reached unprecedented levels. And that calls for meaningful action, lest Congress be guilty of acquiescing to this assault on the rule of law.
And if Congress will not act, passing the constitutional amendments needed to correct this lawlessness, then the movement from the people for an Article V Convention of the States — to propose the amendments directly — will grow stronger and stronger.
As we prepare to celebrate next week the 239th anniversary of the birth of our country, our Constitution finds itself under sustained attack from an arrogant judicial elite. Yet the words of Daniel Webster ring as true today as they did over 150 years ago: “Hold on, my friends, to the Constitution and to the Republic for which it stands. Miracles do not cluster and what has happened once in 6,000 years, may not happen again. Hold on to the Constitution, for if the American Constitution should fail, there will be anarchy throughout the world.” We must hold fast to the miracle that is our Constitution and our republic; we must not submit our constitutional freedoms, and the promise of our nation, to judicial tyranny.
— Ted Cruz represents Texas in the United States Senate.
I think you are exactly right but I suspect a majority of Americans will be unable to grasp what you are saying.
You need to study more and learn that amendments can be designed so that only the States administer and enforce the provisions of the amendment, not the Federal Government:
Start here:
http://www.freerepublic.com/focus/f-news/3304160/posts
here:
http://www.freerepublic.com/focus/f-news/3304783/posts?page=284#284
And that should be enough for now if you are truly interested in understanding.
It may happen to our benefit in the Republican Presidential Debates if some candidate does an “Ollie North”
North was subpoenaed before Congress in the Reagan years and they tried to crucify him about Irangate.
North, in his uniform, with his lawyer at his side, took no guff during the widely watched televised committee hearings. He was polite, appropriate, but took no crap and corrected them in no uncertain terms when they were wrong.
The next day, Congress wet itself apologizing because America has seen North live on TV, not the Newsies opinions of him.
The smart Republican candidate will remember Newt in ‘12 answering the “affairs” question and also how well Trump will do when he takes some news hen apart on national TV in a debate.
If the Republican candidate wimps out as Romney did in the second 2012 debate, (and as Obama did in the first 2012 debate) we lose.
A pair of gonads wins every time
“The Convention of States is not a Constitutional Convention.”
Maybe you could explain the difference? I can’t.
Maybe you need to learn to understand plain language. The problem now is that the states are being trampled by the federal government. Just how do you propose to change that? All the language in the world will not stop tyrants, And that should be enough for now if you are truly interested in understanding.
Yes it’s simple.
A ‘Constitutional Convention’ is preceded by a mandate to perform a major rewrite of the governing document. In the case of the Articles of Confederation, those attending the convention knew they were performing a major revision. The Constitution still retails a lot of language of the original AOC document but addresses the gaps that all states new existed in the AOC. The AOC was never intended to be permanent as it was hastily drawn up and agreed to during wartime. Once peace was attained, the states turned their attention towards thoroughly hashing out a more lasting document which became the Constitution.
Today a ‘Convention of States’ (COS) or more accurately a ‘Meeting of State Delegates’ is a meeting to record votes yea or nay on a list of amendments that have previously been circulated through legislator’s offices and given the green light for inclusion on the meeting’s agenda INCLUDING the rules of order that each delegate must agree to before the meeting takes place. Therefore, the meeting’s purpose is only to record for the National Archives that Article V requirements are satisfied with respect to a list of proposed amendments.
The Meeting of State Delegates will not be an invitation to chaos as prior agreement to rules of order and agenda are mandatory.
I’ve asked Publius to read the post here because he is in tune with the rules of order and the tight control over the amendment proposal procedure and he may be able to provide comments that illuminate just how tight the process will be.
Repeating here what I hoped you would have read and understood and what the participants of the thread have already been over:
http://www.freerepublic.com/focus/f-news/3304783/posts?page=284#284
The convention will elect its own officers and set its own rules of order. If that is agreed upon before the convention starts, so much the better. It's less work for the delegates.
I'm not worried about the reactions of delegates from liberal states. They'll make some noise and try to obfuscate the issues, but most of the preparatory work has already been done, and the liberal delegates will find themselves behind the eight ball when things begin.
Judicial malfeasance and treason should be added to the impeachment indictment.
You wrote;
“Today a ‘Convention of States’ (COS) or more accurately a ‘Meeting of State Delegates...”
Article five calls it “a convention for proposing amendments” so why do you say “MORE ACCURATELY” a meeting of state delegates? Why don’t you call it a convention for proposing amendments?
You wrote;
“a list of amendments that have previously been circulated through legislator’s offices and given the green light for inclusion on the meeting’s agenda”
Article five is silent on the subject of the meeting’s agenda or how an amendment is given the “green light” to be on the agenda. You seem to think that the convention can be strictly limited as to what may be considered. We all know that proposed amendments must be ratified by three fourths of state legislatures OR BY CONVENTIONS in three fourths of the states but many do NOT believe that the convention can be held to some specific list of amendments to be considered, I certainly don’t see language in article five saying that such is possible. I would envision a convention in which every conceivable amendment one can imagine is aired, in other words something very much like the convention which produced the current constitution. It takes thirty four states out of fifty to call a convention, just how do you propose to limit what amendments can be considered? Personally I think the distinction between a “convention of states” and a constitutional convention exists only in the minds of those who are calling for a convention.
One thing I have learned is that very few modern writers are available who are capable of writing amendments which are not easily misinterpreted. I think the founders were much better wordsmiths than are likely to write any new amendments. Don’t bother pointing out any errors in my own writing, I am not asking for an opportunity to write any amendments. I have also learned that trying to clarify things by adding words is usually futile and apt to produce the opposite result. The only person I can think of immediately who might possess the requisite quality of clarity in writing would be Dr. Thomas Sowell. We certainly don’t want amendments written by someone who cannot distinguish between there, their and they’re or lose and loose as is so common now. Words have meanings and the modern tendency is to pounce mercilessly on any ambiguity, real or perceived, we have all too many in government who are capable of arguing that up is down, day is night, freedom is slavery etc.
I also don’t consider all of the amendments which have been passed to date to be a shining example of how to improve things. I can think of many examples of what I would consider bad amendments, some I would call disastrous. I don’t see how you propose to make sure that there are no bad amendments proposed, the definition of bad being subjective and apt to be very different in different states. Article five DOES say that any amendments proposed become valid upon ratification, that seems to mean that if an amendment requiring everyone to purchase five pounds of sugar per week is ratified the only recourse is to repeal it and that is not an easy process. This convention idea has been kicked around for a long time on FR and it still looks like a huge can of worms to me.
It would be great if, at this point, I had a better solution to offer. Unfortunately I don’t have such a solution but I am convinced that a convention is not the answer either. I can understand why many people believe it is and I probably would have thought so too when I was younger and had not had so much experience with unintended consequences. I would prefer that amendments be considered one at a time. I would also prefer that at least the next two amendments be repeals of existing amendments.
***
The amendatory process under Article V consists of three steps: Proposal, Disposal, and Ratification.
Proposal:
There are two ways to propose an amendment to the Constitution.
Article V gives Congress and an Amendments Convention exactly the same power to propose amendments, no more and no less.
Disposal:
Once Congress, or an Amendments Convention, proposes amendments, Congress must decide whether the states will ratify by the:
The State Ratifying Convention Method has only been used twice: once to ratify the Constitution, and once to ratify the 21st Amendment repealing Prohibition.
Ratification:
Depending upon which ratification method is chosen by Congress, either the state legislatures vote up-or-down on the proposed amendment, or the voters elect a state ratifying convention to vote up-or-down. If three-quarters of the states vote to ratify, the amendment becomes part of the Constitution.
Forbidden Subjects:
Article V contains two explicitly forbidden subjects and one implicitly forbidden subject.
Explicitly forbidden:
Implicitly forbidden:
I have two reference works for those interested.
The first is from the American Legislative Exchange Council, a conservative pro-business group. This document has been sent to every state legislator in the country.
Proposing Constitutional Amendments by a Convention of the States: A Handbook for State Lawmakers
The second is a 1973 report from the American Bar Association attempting to identify gray areas in the amendatory process to include an Amendments Convention. It represents the view of the ruling class of 40 years ago. While I dislike some of their conclusions, they have laid out the precedents that may justify those conclusions. What I respect is the comprehensive job they did in locating all the gray areas. They went so far as to identify a gray area that didn't pop up until the Equal Rights Amendment crashed and burned a decade later. Even if you find yourself in disagreement with their vision, it's worth reading to see the view of the ruling class toward the process.
Report of the ABA Special Constitutional Convention Study Committee
Words taken out of context by Lewis and embedded in a pitiful argument.
Kelly makes it clear at time 2:16 the scope is limited to ‘limiting’ the overreach of the Federal Government; any expansion of federal power is out of scope.
Lewis makes the failed plea that the remedy is to stop electing those that won’t uphold the Constitution. Pitiful to watch this ‘remedy’ flashed on his subpar presentation.
Lewis’ ‘remedy’ plea is no remedy at all. By making this plea Lewis reveals an intellectual deficiency in his failure to trace the origins of the federal overreach to the year 1913 when the flawed 17th Amendment was passed.
Because Lewis lacks the intellectual acumen to understand the effects of momentous deleterious events of history, his thinking follows a path that leads to error upon error in direction. To save his self-inflated pride he picks up a substandard defense that one must preserve the harm done by electing officials to continue following the tortuous path that has caused most of the harm.
Lewis’ presentation makes for a pitiful exposition; not worthy of any categorization other than garbage.
If that’s the best you got, you better prepare for the coming Article V groundswell that has been forming this year and now has a critical boost from the events of last week.
Thank you for that thoughtful response and setting me straight as I was really despairing and not thinking clearly. I need to read through the related messages to this post again. Again, I appreciate yours and Hostage’s replies. Once again, the Founding fathers were brilliant in their many checks and balances they provided, our constitution is an amazing thing if we will only use the structures provided to us within it - and using the states to enforce measures that wont be enforced by the Federal government is brilliant as Hostage mentioned in his reply to me - it bears repeating for any who stumble on this thread again:
The answer to your fear is in Section 3 where the States are allowed to void any specific Supreme Court ruling. The term ‘void’ in legal definitions means to be treated as if it never existed.
SCOTUS won’t have any interpretation opportunity for Amendment 28 Section 3. If 30 or more states declare according to Amendment 28 that the same-sex ruling of today is void, the state statutes and policies are free to remain intact and there is nothing the federal government can do about it. No reliance is placed on any part of federal government to interpret or enforce. All power from the example 28 falls to the States. That’s why it’s like nothing seen before; why it’s a game changer.
You certainly seem to have a great deal of confidence based on not much that I can perceive. We shall see what happens in the end, it may be far different than either one of us can foresee.
“Ted Cruz would make a superb SCOTUS justice himself.”
I used to think that Justiceseeker93, until I read a statement attributed to Cruz misinterpreting the 14th Amendment, contradicting its principle author, Congressman John Bingham. Criz does raise many issues for which I appreciate his voice in Congress, but where careful and honest interpretation of Supreme Court decisions depending upon constitutional interpretation, “original jurisdiction” as provided by Article III section 2, Cruz has chosen the political path, probably acknowledging the success by supporters of both parties, both of whose candidates in 2008 failed the Constitutional requirements for becoming president, though there is no law preventing them from running.
Cruz is in “good” company. Mark Levine cites Obama’s Harvard law advisor Larry Tribe and former Solicitor General Ted Olson, who offered the misdirection, the 1st Congress’ Nationality Act from 1790 as the reason John McCain should be considered a natural born citizen, when they, along with every U.S. Senator, all of whom signed Senate Resolution 511 in April 2008, knowing that the 1790 act, the only law proposing to interpret natural born citizenship, was entirely rescinded in 1795. Those are facts. If anyone cares, read the act. Both parties have calculated that few people care enough to read it themselves. This is just a symptom of the further degradation of the intent of our framers and founders.
Cruz can ignore it but by so doing he has deigned to assume his personal authority to provide definitions useful to himself and his supporters. I think we can do better, but enemies of our individual sovereignty based upon laws and not men have won this battle. We will see where a “living Constitution” leads us. We already have much evidence with a Supreme Court making new law including defining marriage, authorizing new taxation, defining environmental risks, and on and on.
Thank you for all of your insights, dearest sister in Christ!
This is more substantial then a mere law. It would be impossible for the Imperial Court to ignore an amendment aimed directly at them.
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