Asheville – Part 1
If there is anything that should be clear, it is that the Founders of our nation and those who wrote the Constitution were emphatic about the need for a distinct separation of powers among the various branches of government. Voluminous notes and writing exist dedicated to this very proposition. Federalism—the agreement in which each member agrees to delegate its governmental power to the other in certain specified common affairs—is at the heart of our governmental system and our Constitution.
Yet, what is happening in the United States today and in recent past years is that the United States Supreme Court and its judicial tentacles have sucked the meaning out of the Constitution and are re-writing a new one in accordance with their own views. By empowering themselves to be the final arbiter of all meanings of the Constitution, including those that empower the other coequal branches of government, they have hammered a virtual monopoly on making law.And the citizens of America stand idle and watch.
The Court today is more than willing to simply ignore Congress and the President, as was extremely self-evident in the blatant case just a few years ago of Terri Schiavo. Then, Congress issued a subpoena for Terri Schiavo to appear before them, the legal requirement being that she, by law, should be protected until she could do so. The state judge in Florida totally ignored and even mocked the subpoena. Subsequently, Congress and the President signed a law requiring the federal court system to conduct a “de novo” review of the case (“new, from the beginning”) due to an increasing amount of evidence that was surfacing and had never been considered. The federal courts, for all practical purposes, paid Congress and the President no heed and acted in flagrantly indifferent and inimical ways to the law. Ultimately, her feeding tube was removed.
In 2020, the Supreme Court overruled the president and Congressional desire to rescind Obama’s executive order on Deferred Action for Childhood Arrivals (DACA). They, including Chief Justice Roberts, had no legal basis for doing so. But they did, and everyone went along. Each time the judiciary invades the intentions of the legislative and executive functions by blatant and unconstitutional interpretations, the evaporation of the co-equality of the federal branches drains the essence of the Constitution.
Our lower court judges are constantly making national rulings on matters they have no right to decide, and the Supreme Court fails even to hold them in check.
Thomas Jefferson himself was worried about this. In 1820, he wrote to William C. Jarvis:
You seem…to consider the judges as the ultimate arbiters of all constitutional questions, a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy… The constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party its members would become despots…At the establishment of our constitution, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions…become law by precedent, sapping by little and little the foundations of the constitution, and working its change by construction…In truth, man is not made to be trusted for life if secured against all liability to account.
Jefferson’s worries were well founded. Over the past two centuries, the elected branches have largely acquiesced to the tyranny of the judiciary.
It is the harsh reality of today that the Supreme Court simply looks upon Congress and the President as advisory bodies. Unfortunately, the majority of the media and the people do so as well.
All look to the judiciary to give them the “law.” The “law” and its corresponding “rights” are now thought to have been handed down by the Court. It was never intended to be this way.
The first and second paragraph of the Declaration of Independence state, “When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitles them…We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, and that among them are Life, Liberty, and the pursuit of Happiness….”
These are rights that no man-made ‘laws’ can take away. The people simply ‘lend’ to their government certain laws for the government to use in carrying out its proper functions.
Neither judges nor the government have the right to usurp them and cannot claim ownership of them as they are just on loan to the government by the people. The basic principles of our law – truth, justice, and the value of life and individual responsibility – come directly as gifts of the Creator.
In addition, the US Constitution starts out by saying “We the People…” It does not start out by saying, “We the judges…”
Publisher’s Note: Part II will continue in the next edition.