Volume 6, Issue 28
Because the Supreme Court has become a continuation of politics by other means.
By the Democrats’ reaction, one would think that President Trump had acted unconscionably in disrespect of the judicial process. The protests portrayed by the press leaves the impression that the President implemented executive authority in contradiction to constitutional tradition. He did not. He selected a respected jurist who reflected his constitutional philosophy. The structure of the United States government, as designed by the founders, was intended to establish three equal branches of government: the Executive Branch, the Legislative Branch, and the Judicial Branch. Through constitutional checks and balances, no one branch was to be dominant over another. The ultimate source of power was to rest with the people through elections of their leaders. Political conflicts were to be resolved through majority rule coupled with constitutional protection of minority rights. In this commitment to equal protection, American democracy has proven to be a superior form of government. Issues of ideology may continue to simmer. Yet society progresses in respect of the process. How?
By accepting the compromise of the ballot box.
Whenever civilization lacks the determination to be governed by a process that allows for differing views to be woven into the policy of a society’s fabric, then extreme measures are pursued. Carl Von Clausewitz, a 19th century Prussian General, coined the phrase “war is the continuation of politics by other means.” In other words, diplomacy has its limits. If an agreement can’t be reached, nation-states may go to war to impose their political will.
Whenever society lacks the confidence to be governed by democracy built on the foundation of a constitution, then fighting over control of judicial philosophy abandons election results and subjects the Supreme Court Justice nomination process to a continuation of politics by other means. There is no recognition of common culture.
Of course, what the public is fed by the media talking heads is that the judicial system is not only fair game, but critically essential as a tool for the advancement of a political theory. It is imperative to the progressives’ viewpoint that the courts reflect their intellectual philosophy. Therefore, impeding the confirmation of judicial appointments has become politics as usual. Liberals will argue that conservatives have executed the same strategy to leverage the electoral process. That argument, in fact, has merit. What liberals neglect to concede is that they do not trust the original draft of the Constitution. It’s not just about slowing down the process until the next election in the hope that progressives will win a majority; it’s about confirming liberal justices whose philosophies embody the concept of expanding, stretching, and, in a sense, rewriting the original document to fit the times.
Article Three of the U.S. Constitution establishes and sets out the parameters and authority of the Supreme Court. “The judicial Power of the United States, shall be vested in one supreme Court … The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” This is the judicial foundation of the Supreme Court.
In 1803, the Supreme Court case Marbury vs. Madison established the Court’s authority for judicial review. This case set the Court’s oversight capacity for the determination of constitutional application by Legislative and Presidential action. The decision was based on the original language and intent of the Constitution. It has never been overturned.
The question now becomes, first, should the Court rule on the constitutionality of a law based upon the language in the Constitution and the intent of the founders? (Doctrine of Originalism) Or, should the Court have license to expand and reconstruct the founders’ original intent through judicial renderings? In expanded decisions, the Supreme Court threatens to become nothing more than an extension of the political parties. This defeats the basic core essential of democracy. If one believes that the Constitution is a “breathing document” requiring structural change for relevancy of the times, then the Amendment protocol is available to make such changes, subject to a vote of the people. Substantive changes should not be achieved through judicial legislation from the bench. And second, the question becomes, should the Court analyze laws based upon the Doctrine of Textualism, adhering to the original text of the Constitution?
The answer to both of the above questions depends on whether one believes that the founders’ principles were eternal or temporal. Any position on Supreme Court nominations requires a declaration of one’s belief system in reference to these axioms. Such declarations are absent in the debate today. Recriminations of political leaders have relegated the discussion to policy matters based upon identity politics rather than on common cultural constitutional values. The missing component in our national dialog today is whether one believes that the Constitution of the United States of America is a binding document for all Americans culturally. One can believe that the Constitution requires amendment to advocate alteration of original intent. The justification for such a demand must be made and explained. Doing so, without expressing the definition of the binding effect to strengthen America and its common culture, is disingenuous at best and deceitful at worst. All ultimate objectives of legislative and judicial action should be governed by the commitment to bind us as a nation for the common good.
Any and all attempts to influence the nomination of Supreme Court Justices, other than leveraging the timing of election schedules, is not only politics by other means, but the usurpation of the democratic process. Denigrating the judicial review standard set out by Marbury vs. Madison removes the protection of the balance between Legislative and Presidential powers and results in Supreme Disjunction in America.
Rest assured that the entire world depends on American democracy and the freedom it presents. From immigrants seeking entry to the United States, to the NATO alliance seeking leadership, to China seeking access to American markets, the world relies upon the American government example of Rule of Law, Due Process, Independent Courts, Free Press, and Transparency.
In protecting these principles, America as a people must turn to themselves in the absolute respect of free elections. The compromise of democracy, acted upon through common beliefs and principles, results not only in the advancement of a common culture, but the strengthening of its core tenets.
The preservation of individual liberty, individual freedom, and individual pursuit of happiness is incumbent on constitutional law based on a belief that the founding drafters were writing for the ages.
My name is Marc Nuttle and this is what I believe.
What do you believe?