Volume 8, Issue 28
The Legislative Branch is responsible for passing laws. Taxing the people must originate in the House of Representatives. Congress is responsible for the legislative order of society. Members of Congress stand for election every two years. This is intended to allow the people to keep tight control on the direction of laws and policy that impact their everyday lives.
The President of the United States is the chief executive officer of the Federal Government. His responsibility is over the Executive Branch. This includes the military, the State Department and the Treasury. He has the authority to issue Executive Orders necessary to administer federal agencies. These orders are issued independent of Congress.
The Judicial Branch includes the Supreme Court, federal courts and special courts. These courts interpret laws made by the legislature and Executive Orders issued by the President for Constitutional application to be enforced by the Executive Branch.
These three branches, constituted with their checks and balances, have worked spectacularly when the people’s vision for the pursuit of happiness was respected. However, when elected officials and jurists impose their own will, and therefore their personal ideology, on this unique protocol, disastrous effects on society have resulted.
A common complaint among activists is that the Supreme Court Justices tend to legislate from the bench. Both the left and the right fear ideological purists as sitting members of the Court. The Court was not meant to determine policy. That is the legislature’s responsibility. The courts are charged with the sacred duty of ruling on the constitutionality of laws passed by the legislatures.
In Griswold v. Connecticut, Justice William O. Douglas, in writing the majority opinion, found a right to privacy hiding in the “penumbra of the constitution” (the shadows). It is never mentioned anywhere in the constitution as a right. It may be moral, but its imposition should have been the responsibility of the legislature, not the courts.
More recently, current Chief Justice John Roberts found in National Federation of Independence v. Sebelius that Obamacare was constitutional because it was not a mandate upon the people, it was a tax. Justice Roberts went through a gnarled, tangled analysis to reach his conclusion. He implied that he came to his decision for his opinion because anything else would have been so tumultuous in its impact on American society that it likely would have thrown the country into chaos.
Justice Roberts misused his judicial authority, not in that the conclusion was wrong, but that it was the court's responsibility to hold the legislature responsible to write a constitutional law. Enforcing the rule of law works both ways. The law must be constitutional and the court's action, regardless of intent, must be constitutional. The courts should be strict interpreters of the constitution. They must also be contextualists in that the words of the laws passed speak for themselves. Anything else is jurisprudential manipulation.
It is not Justice Roberts’ authority or right to determine what is morally correct for the United States. Congress and the President are elected to make that determination.
Now, the Supreme Court’s histrionics come full circle. Texas has brought suit challenging Obamacare on the basis that if, in fact, its mandates are a tax, they are an unconstitutional tax because the taxing legislation did not originate in the U.S. House of Representatives. So far, the lower courts have agreed. The Supreme Court is now caught in a dilemma. It can uphold the rule of law and expose Justice Roberts’ original majority opinion as unfounded. Or, it can continue the charade of finding ways to uphold unconstitutional laws through subterfuge.
A further common abuse of power by the Supreme Court is their refusal to recognize and honor the Tenth Amendment. This amendment simply states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The Founding Fathers intended for domestic policy to primarily reside under state authority. The Supreme Court can rule that there is a doctrine of separation of church and state. How it is applied, as in prayer in school, is the authority of the state. The court may rule that a woman has a right to an abortion. How it is applied, as in limits on using abortion for birth control, is the authority of the state. Once again, in an effort to standardize policy, regardless of our country’s structure as a republic, the Court has attempted to usurp the people’s rights of their own definition of the pursuit of happiness. Legislatures have all-encompassing legal ability to pass constitutional laws for the good of the people without the political ideological direction of the courts.
Most recently, Supreme Court Justice Neil Gorsuch found that “sex,” as cited in the Civil Rights Act of 1964, meant sexual orientation or transgender identity. That is not what the law says. In 1964, transgender was not an issue. Congress can simply amend the Civil Rights Act to include sexual orientation and gender identity as protected against discrimination. It would have been better if Justice Gorsuch would have just said that, in the “penumbra of the constitution,” he also found constitutional rights for additional segments of society. To claim that he is interpreting legal context for strict defense is beyond reasonable belief.
In this latest same Supreme Court session, Chief Justice Roberts wrote the majority opinion finding that the President cannot issue an Executive Order unless it follows certain protocol. No such restriction exists in the constitution.
Again, the point is not the judgment of what is right or wrong, what is moral or immoral, or even what is righteous. The point is that it is not the Court’s authority to decide. The Court’s responsibility is only to determine whether the law or Executive Order is constitutional. Supreme Court Justices are not elected. They are appointed by the President and confirmed by the U.S. Senate for life. Laws governing our morality must be passed by men and women who are elected by the people. Otherwise we do not have a government of the people, by the people, for the people.
When Congress fails to pass immigration reform, and President Obama, out of frustration, issues an Executive Order establishing Deferred Action for Childhood Arrivals (DACA), and the Supreme Court rules that President Trump cannot issue an Executive Order rescinding DACA, the lanes of government begin to merge, checks and balances become meaningless, and our great democracy is threatened.
No matter how well-meaning the advocates’ actions, they at times become disruptive and distorted realizing the consequences of twisted intentions. Policy outcomes are often much more damaging from twisted intentions than from just having allowed the legal process to work itself out as originally constitutionally designed.
The Founding Fathers and Mothers were extraordinarily bright, if not prophetic. We should trust their wisdom. It’s worked pretty well for 244 years.
My name is Marc Nuttle and this is what I believe.
What do you believe?