Opinion

One Nation, Under Judges

Asheville

This is part 3  of a 3 part series from an article originally released in 2005.

Everything Falls Under the “Commerce Clause”

Under Article I, Section 8, the Constitution gives Congress the power to “regulate commerce with foreign nations and among the several States.” The purpose of this was to promote trade by breaking down many of the barriers that had been set up by the States.

However, in 1942 the Court made a gigantic leap into the entire marketplace with its ruling in Wickard v. Filburn. In that ruling the Court decided that Congress could regulate the amount of wheat that a farmer grew on his farm even though none of the wheat ever left the state. The Court arrived at its decision by more pretzel logic when it stated that because Filburn, a farmer, did not purchase any wheat on the open market and instead grew his own wheat, he was affecting interstate commerce by not buying any. Under this logic absolutely anything can be covered under the “commerce clause.”

The Court’s ruling on the commerce clause means that there are absolutely no Constitutional limits on the federal powers to make any law it chooses.

Courts and Election Laws

In the presidential election of 2004, in Florida, the Courts waded in unnecessarily. 

Article II, Section 1, Clause 2 of the U.S. Constitution states, “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” This clause meant the Florida legislature, which was controlled by the Republicans, had absolute authority to choose Florida’s members of the Electoral College and were preparing to do so in view of the resulting vote counting confusion. Bush would have received these electoral votes in an entirely Constitutional manner.

The Florida Supreme Court had initiated the real problem on November 17, 2000 when they, on their own motion, issued a temporary stay against Florida Secretary of State Katherine Harris from certifying the election results on the day provided by Florida law. The Florida Court totally ignored existing Florida law governing deadlines and recounts and inserted its own deadline out of thin air. On December 8, once again the Florida Supreme Court committed a stunning abuse by its judicial activism. It ordered manual recounts in every Florida county that had significant numbers of “undervotes” without even establishing a standard for recounting the ballots.

At that point the United States Supreme Court waded in and ordered the manual recounts stopped, and a few days later on December 12, 2000 the U.S. Supreme Court held that the Florida court had violated the “equal protection” clause of the Constitution by ordering statewide manual recounts with different standards in the different counties.

If anything, the Supreme Court should have ruled on whether or not the Florida Court had usurped and supplanted the Florida legislature’s authority. Instead it opened up a new Pandora’s box by widening the meaning of “equal protection.” The Florida legislature should have moved to impeach members of the Florida Supreme Court for their blatant moves to rewrite the election laws illegally, and the U.S. Supreme Court should have stayed out of the fray. George Bush would have had the Florida electoral votes anyway.

Knocking Down Free Speech in Politics

Another part of the First Amendment of the Constitution reads, “Congress shall make no law…abridging the freedom of speech, or of the press…” That’s what it says.

However, in 2002 the McCain-Feingold Act was signed into law. It imposes grotesque limits on political speech and states that groups could not run advertisements about a candidate’s position for thirty days before a primary election and sixty days before a general election. The media was exempted.

This was challenged under McConnell v. Federal Election Commission in 2003. After the Court stamped its approval on the bill by discussing “soft” and “hard” money, defining “electioneering communication,” and other unrelated topics, it ruled to uphold the bill.

In whose wildest dreams could it ever be interpreted that the founders included in the Constitution a proviso that people could wind up in federal prisons for speaking out clearly and often in favor of a particular candidate?

Perverting the Constitution to Aid Our Enemies

Article II, Section 2 of the Constitution states that “The President shall be Commander in 

Chief of the Army and Navy of the United States…” As such the primary task is to act so as to ensure the safety and security of Americans in times of attack.

As such the President has the authority to detain enemy combatants, the purpose of which is to gather intelligence and to ensure that they do not return to assist the enemy.

Once again the Court has moved to increase its powers. In Rhamdi v. Rumsfield (2004) the Court ruled that “…a citizen-detainee seeking to challenge his classification as an enemy combatant must receive…a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker.”

Going even further, in Rasul v. Bush the Court determined that the courts could listen to cases in which foreign enemy combatants challenge their detention. In their wisdom they gave alien combatants and enemies access to United States civilian courts. They gave an alien captured in a foreign active combat zone the right to bring a suit against the Secretary of Defense. Arming the enemy with subpoenas, affidavits, depositions, and lawyers borders on the ridiculous.

These are more dangerous rulings that are simply grotesque power grabs by the Court. Certainly the Founders never intended to swap a tyrannical monarchy for an oligarchy of judges.

I acknowledge, in the ordinary course of government, that the exposition of the laws and constitution devolves upon the judicial. But, I beg to know, upon what principle it can be contended, that any one department draws from the constitution greater powers than another, in marking out the limits of the powers of the several departments. The constitution is the charter of the people to the government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.

Perhaps this is an omitted case. There is not one government on the face of the earth, so far as I recollect, there is not one in the United States, in which provision is made for a particular authority to determine the limits of the constitutional division of power between the branches of the government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent.

—James Madison, Speech in Congress on Presidential Removal, June 16, 1789.

The writer is indebted to Mark Levin’s book Men in Black for much of the information above.