THE BATTLE FOR THE COURT CONTINUES

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By Larry Swickard

“Refusing or not refusing to execute a law, to stamp it with its final character…makes the judiciary paramount in fact to the legislature, which was never intended and can never be proper.”¹

James Madison

“If the Judges of the Supreme Court should dare…to declare acts of Congress unconstitutional it was the undoubted right of the House to impeach them and the Senate to remove.”²

Senator William Giles, Virginia

I learned a long time ago that if you ask the wrong question, indubitably you get the wrong answer. While Democrats and Republicans fight over the philosophical make-up up the Supreme Court, almost none point out that the Constitution never authorized nor the Founders intended for the federal judiciary to have the power of judicial review. Our right to keep and bear arms remains hostage to a 5 to 4 vote of abolition.

The year 2005 rolled into 2006. Media pundits around the nation engaged in the annual rite of retrospective reviews of the news. Kansas City’s retrospective revolved around its disturbingly high murder rate. Local media united with politicians, urban pastors, and “community activists” (a code word never defined by the media) to decry the killing. Through mayor’s conferences, rallies, and candle light vigils, the culprit was finally named. The culprit was “violence” and “violence” had to be stopped. After “violence” was named and denounced, I was left with the impression that violence was a person not an adjective. Who is this violence, what does he look like (is it a he?), and where does he live I wanted to ask. Community leaders didn’t come close to asking the right question and seemed so incapable of stating the obvious. Has someone tied their mental shoestrings together? Violence is committed by evil individuals who have no moral qualms about harming others to further their interests. Murder and violence has been a regrettable reality since Cain slew Able. No amount of denunciations, marches, or candle light vigils will change this fact. Even the 20^th century’s most brutalitarian regimes, the Soviet Union and Red China, could bring the wicked to heel. When I was a policeman with the City of Palo Alto, California, our Chief, Chris Durkin, ordered his officers when asked by citizens if they should procure a firearm for self defense, to tell them no, we could protect them. It was one of the few orders I ever disobeyed. If our hapless leaders are serious about “stopping the violence,” instead of passing out candles they should be handing out gift certificates for firearms training and concealed carry classes and stop pretending that human history never happened. The evil among us have no respect for the law or life. Our politically correct spineless leaders refuse to face this fact. Instead, they blame and vilify the millions of law abiding firearms owners for the “violence.”

As a high school history and government teacher I am forced to confront the pernicious consequences of liberal indoctrination and myth making that lead students to ask the wrong questions, on a daily basis. They are surprised for example to learn that the words “separation of church and state” have never been part of the Constitution. They find it tough to swallow that the Founders never intended the federal judiciary possess the power of judicial review. And they are stunned to learn that the Constitution grants no rights but only recognizes God-given rights claimed by Americans like the individual right to keep and bear arms. The Founders were passionate about protecting this right not to hunt ducks but to protect themselves from the abuses of government. Young Americans nurtured in the United States of Political Correctness chase after will-o-the-wisp solutions to societal problems and are befuddled when waiting periods, gun registration, and targeted bans have had no effect on crime and violence. So indoctrinated are the young that they see as the only solution to the failure of gun laws is to add more gun laws.

At this writing President Bush’s appointee to the Supreme Court, Samuel Alito is about to face his baptism of liberal fire. It should prove to be a vicious slander infested experience waged by his radical leftist inquisitors. But why all the fuss? The left is filled with hysterical rage that the Court might decide parents don’t have the right to kill their unborn babies. They are petrified that the President might appoint enough justices who respect the Constitution to halt and then begin to roll back the Socialist agenda they have been forcing on Americans incrementally since the election of their patron saint, Franklin Roosevelt.

David Livingston argues that it is a mistake to blame the Supreme Court for the demise of federalism that has given rise to the success of radical leftist judicial activism. The Court can do nothing without the duplicitous assistance of Congress and the President. He cautions that blaming the Court for judicial activism encourages the notion that federalism, the division of power between a federal and State governments, could be restored if the Court was reformed. If the Court, by 5 to 4 majorities, can extend, grant and create rights, it can abolish them by the same margin.³ Wendy McElroy argues that it is invalid to dispute the Founders intent with respect to the Constitution because they were not of one mind. Of the 74 delegates chosen to attend the Constitutional Convention, only 55 came and only 39 remained to sign the final draft. She does concede that the will of the people can be ascertained through the compromises worked out during ratification.⁴ Although technically correct, it is nevertheless true that intent can be discerned through the votes of the majority between the competing proposals offered at the convention, the Federalist Papers, and the debates and compromises agreed upon at the State ratifying conventions. This would be true of any law or rule passed by a deliberative body. Yes Virginia, there is such a thing as original intent and it can be known.⁵

William Eaton notes that the Founding Fathers held no illusions about the corruption of power and temptations of office. What they feared most was the unchecked tyranny of government power. The system of checks and balances they fashioned was to inhibit the growth of government. But checks and balances were not set up between the federal legislative, executive, and judicial branches. Rather they are between the federal and State governments. Each possesses its own sovereign sphere of power and was to check the incursion and usurpation of power by the other. Eaton contends that the Supreme Court severed legislative power from Article I and transferred it to itself through judicial review. But what is more alarming is that the Court has also seized control of Article 5. This article grants sole authority to the people, acting as States, to modify, alter, or to amend the Constitution. The Supreme Court, acting through 5 to 4 majorities, has negated Article 5 and fashioned itself into a continuing constitutional convention. The usurpation of the power of the people, to further the liberal agenda, has been done consciously and deliberately. The notion that the Court is the faithful guardian of the Constitution is a myth.⁶ Eaton reveals that by the 1980s the Left had seized upon the notion of using the federal judiciary as the main weapon to prevent the reversal of their agenda and as a means to overturn the election of Ronald Reagan by nullifying any changes he made in government. The Democrats hatched this scheme, and then sat on it for six years until the election of a liberal Democrat, Jimmy Carter. The 1978 Omnibus Judgeship Act signed into law by Carter created 117 new federal judgeships and 35 new circuit judgeships, all lifetime appointments. Liberal Carter was able to appoint almost half the federal bench during his 4 years in office. Peter Brimelow (associate editor, Barrons) and Stephen J. Markman (general counsel to the Senate Judiciary Committee) declared Carter and the left’s scheme a court packing plot designed to reshape America by judicial dictatorial fiat.⁷

I have been asked if I ever tire of having to battle so many liberal lies and myth making. The answer is yes. But then I consider that Moses was 80 when he was called to lead his people from bondage to the Pharaoh, and Joshua was also 80 when he completed the Israelite conquest of Canaan. They retired when they had no more breath. In the cause of liberty, I will follow their example. Liberty is never safe because inside every liberal is a totalitarian trying to get out.