A Rigged Game

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The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges–leading a Volk who will be “tested by following,” and whose very “belief in themselves” is mystically bound up in their “understanding” of a Court that “speak[s] before all others for their constitutional ideals”–with the somewhat more modest role envisioned for these lawyers by the Founders.

“The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . .” The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982).

From the dissent of Justice Antonin Scalia in Planned Parenthood v. Casey, 505 U.S. 833 (1992)

 

 

 

 

Kim Davis, elected Democrat county clerk of Rowan County, Kentucky, goes to jail for defying a Federal court over gay marriage.  Details from Allahpundit at Hot Air:

An interesting detail from BuzzFeed: Lawyers for the gay couples who want her to issue the licenses asked the court to fine her, not send her to jail. Since when do gay-rights supporters ask for leniency for a Christian who’s defying them on gay marriage? Since, I think, this case started picking up national media attention. They don’t want to make a martyr out of Davis. Locking her up does that in a visible way that hitting her in the wallet doesn’t.

The judge ordered her locked up anyway. For a reason:

 

The court assumed, not unreasonably, that sympathizers would shower her with cash to cover the fine, which means there’d be no real pressure on her to comply with the order to begin issuing licenses. The only way to pressure her was jail.

David told Todd Starnes of Fox News that she was prepared for that if it came to it:

“I’ve weighed the cost and I’m prepared to go to jail, I sure am,” Mrs. Davis told me in an exclusive interview. “This has never been a gay or lesbian issue for me. This is about upholding the word of God.”

This is a heaven or hell issue for me and for every other Christian that believes,” she said. “This is a fight worth fighting.”…

“I would have to either make a decision to stand or I would have to buckle down and leave,” she said, pondering her choices. “And if I left, resigned or chose to retire, I would have no voice for God’s word.

That’s the first time I’ve heard a religious believer suggest that they wouldn’t have a voice for God without their public office, but okay. Meanwhile, Kentucky needs to figure out what to do about marriage licenses while she’s in jail. She can’t be fired; she’s an elected official. She could be impeached by the state legislature, but good luck getting politicians to hold a big public pageant in a red state to boot a devout Christian from office for resisting gay marriage as a matter of conscience.

Well, this is good news.  I assume that we can now expect Federal courts to order the jailing of all who defy statutes and court orders.  The IRS has blithely stated for years that they simply “are not in compliance” with various Federal court orders and suffered zero consequences.   I  eagerly await the incarceration of the mayors of hundreds of “sanctuary cities” around the country that have held that somehow the Federal immigration laws of this country do not apply within their communities.  Then we have President Obama who has pointedly in the past simply refused to enforce laws that he does not agree with, and has unilaterally ordered what he clearly lacks the power, under the Constitution, to order.

Of course none of this will happen.  Why?  Because the law, at least in the Federal system, is becoming an increasingly rigged game where its rigor is reserved for those who are politically powerless and who stand in the way of social policy that the Federal courts favor.  That is why Kim Davis, an elected country clerk in Kentucky, will rot in jail until she bows her knee to the Federal court made up right of “gay marriage”, while other elected officials who flaunt the Constitution and duly enacted laws have nothing to fear from the Federal judiciary while they are politically powerful and do not stand in the way of the rights prized by the Federal courts, which are, apparently, gay “rights”, “freedom from religion” and abortion.  The long term consequences of this are both obvious and disastrous.  A rigged game invites nothing but contempt, and the Federal courts have long been giving ample reasons for that contempt.  Courts are ultimately fairly weak institutions, and if a majority of the population becomes convinced that they are rigged, then they, and the paper orders they issue, are quickly reduced to impotence.  The consequences for societies when this happens tend to be disastrous, but when judges stop acting like impartial referees of the law and become partisan bullies, that is what ultimately happens.

 

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65 Comments

  1. Another sad thing about this is that people are coming out of the woodwork, condemning her immoral life before she became a Christian. We live in a world, now, where people somehow truly believe that there’s no such thing as forgiveness or repentance — you’re forever stuck in your old life and can never turn your life around. This woman didn’t even do .001% of what Hillary Clinton has done, yet she’s in jail & Hillary is lauded as the woman of women. It makes me want to vomit.

  2. Our government makes no secret that the game is now rigged. Let me explain with a
    bit of backstory: back in the latter half of 2012, Everett Stern, an employee of banking
    giant HSBC handed over to the FBI a trove of records irrefutably proving that the bank
    had been for years laundering hundreds of millions of dollars for Mexican drug cartels,
    moving money for organizations linked to Al-Queda and Hezbollah and helping Iran,
    Sudan, and North Korea evade US sanctions. HSBC had been under investigation by
    the government for these things for years, but now the FBI had the smoking gun.
    .
    And what did the DOJ decide to do? Just before Christmas 2012, the feds opted to fine
    HSBC what amounted to five week’s worth of profits and call it a day. Not one HSBC
    executive was brought up on any of the countless possible federal charges they should
    have faced. As Assistant Attorney General Lanny Breuer explained at the time, “had the
    US authorities decided to press criminal charges, HSBC would almost certainly have
    lost its banking license in the US, the future of the institution would have been under
    threat and the entire banking system would have been destabilized”. In other words,
    where we used to have people and institutions that are Too Big to Fail, now we also
    have people and institutions which are Too Big to be Held Accountable to the Law. And,
    as Asst. Atty. General Breuer explained, this is our government’s policy now. The only
    person at HSBC who lost their job was Mr. Stern, the whistleblower.
    .
    Similarly, banking giant UBS was let off the hook for its part in the LIBOR scandal,
    possibly one of the largest banking scams ever perpetrated. And when $1.6 billion in
    segregated customer funds “disappeared” from MF Global, there was the kabuki
    theater of a “congressional inquiry”, but in the end no one was ever indicted. In 2013
    HSBC only got a stern finger-wagging from the SEC because it had been shown to have
    been directing its employees to provide financial services to its clients without bothering
    with getting proper licensing from the SEC. “Too Big to Prosecute” wasn’t a one-time
    decision by this Dept. of Justice– it’s now the way things are done in these United
    States.
    .
    All of which has been a source of relief and amusement to people like Hillary Clinton
    and Lois Lerner, I’m sure.

  3. I believe we are witnessing the making of Saints in our midst. Martyrdom such as Mrs. Davis’ is a shade of red. Not blood red but very close. As yesterday’s timely reminder, Where Nero rules…, keep’s us aware that the rigged game will continue to trample on Religions Freedom. When our personal moment of truth arrives, let us be steadfast and courageous. Thy kingdom come, Thy will be done.

  4. I believe it was former Gov. Huckabee ask why were judges not putting officials in San Francisco in jail for refusing to enforce immigration laws. What’s good for Mrs. Davis should be good for these other “law breakers”. I am proud of her for her taking a stand.

  5. These problems can be partially dealt with by the president and Congress if you have a committed administration.

    1. Order the release of Kim Davis. The executive operates the jails.
    2. Withdraw the U.S. Marshall Service from given districts. Tell the judges to hire pinkertons if they want their decisions enforced. If they complain, tell them the four of them do not get their marshals back until the fifth one resigns.
    3. Use the appropriations process to shut down federal districts. If they complain they are due their salaries anyway, send them $90,000 worth of potatotes twice a year.
    4. Federal legislation to shut down given districts. Make the geographic jurisdiction of this one one square yard in the middle of the road in Greenup County.

    Of course, a congressional leadership which consists of A.M.McConnell and John Boehner (“louche, alcholic and lazy”) would never attempt to defend democratic institutions any more than they’d defend the border the Chamber-of-Commerce lobbyists want erased.

  6. Mr. Mcclarey would know better than I, but this looks like selective enforcement – and that of a court decision, not a law duly passed by a legislature and signed into law by an executive.

    Of course, this is a decision/law favored by the Left. The laws the Left doesn’t like can be ignored by the Left and if anyone tries to enforce such laws/decisions on the left, then they are racist/sexist/xenophobic/homophobic.

  7. D Black.

    Her husband is tight too.
    With the loss of 80k per year, chastisement from aquantice’s, misunderstanding from family and the local’s that might shun their family I might not be going out on a limb if I make the assumption that he is no slouch when it comes to standing up for Christ.

    God bless THEM!

    Let’s help them

    Change.org anyone?

  8. Here is the thing….a church was not being ordered to perform a same gender marriage. So how was the matter one of religious persecution? This is not at the level of abortion. All it is is a government body issuing pieces of paper that grant certain couples certain benifits. As I’ve argued before, the state has that freedom, even if a religious group does not feel it has such freedom. If she were a Catholic, and had done her job, she would not need to deny herself communion for it.

  9. JS Person, Caesar has no authority under God to compel a person to violate her Christian conscience, and when Caesar usurps that authority for himself, then it is time to do what we did in 1776.

  10. “So how was the matter one of religious persecution?”

    Because the laws of this country banning gay marriage were struck down by a judicial usurpation that lacks any basis in the Constitution. This is not simply a religious persecution but a persecution against those who will not bow to an illegitimate judicial oligarchy.

  11. Any person in government service, in any branch and at any level, must understand that they will be administrating/enforcing laws without regard to their opinion of the law. The employee will be informed “through [official] channels” how the law is presently written. The employee has two essential choices: obey the law as instructed or leave service. Anarchy is the alternative.

  12. Actually a great many people lately have been lauded for violating laws. For example, the current Lieutenant Governor of California, Gavin Newsom, gained national notoriety in 2004 as mayor of San Francisco for ordering his city clerk to issue marriage licenses to gay couples. This was in violation of state law and the California Supreme Court later annulled these marriages. However, this act of contempt for the law made him a hero to liberals and he is currently running for governor in 2018. In the current culture war one side goes to jail for violating the law and the other side gets lauded by the media and gains political strength in blue states. Hypocrisy is too kind a term for this situation where conservatives are called upon to obey the law by sanctimonious liberals who do not hesitate to treat laws, including constitutions, like toilet paper when it serves their purposes.

  13. Anarchy could be the vehicle for change if popular vote is squashed by judicial decree.
    When the people are not being fairly represented because of Presidential edict or judicial overreach watch out.
    The bullying will reach a limit for those who are being bullied. Anarchy might become the solution. I hope not. I can’t fathom a civil war in our era.

  14. Didn’t Ms. Davis swear an oath to uphold the Constitution of the State of Kentucky? Yes. Didn’t that constitution to which she swore the oath define marriage as between a man and a woman? Yes. Therefore, by issuing “marriage” licenses to same sex couples, isn’t she breaking her solemnly-sworn oath?

  15. Don: If the issue is hypocrisy, then it still doesn’t justify her breaking the law. It just means that the central critique must be about hypocrisy. One could say she had to do her job AND it’s not for states to violate federal law in the manner you described.

    Also, about the Supreme Court usurpation…..

    They did not violate any laws. They did not violate the Constitution, even if only in the letter rather than the spirit. One can think it was a bad call, but we are bound to obey it. At least until an amendment were to be hypothetically passed, new judges appointmentted, etc. As long as the priests, pastors, bishops, and other

  16. clergy are left alone to tell their flocks they can’t be in this kind of couple, and to not have to perform same gender marriages, then the courts ruling doesn’t even get close to the point where we should even be having the “violating an unjust law” discussion

  17. “They did not violate the Constitution”

    They violated it just as much as a President who claims that he can do something that the Constitution does not grant him the power to do. Actually, what the Supreme Court majority did is worse because in effect they illegitimately amended the Constitution to reflect their policy preference. As for obedience to an illegitimate Supreme Court decision, there are pragmatic reasons for obeying most such decisions, but such obedience merely encourages the Supreme Court for future outrages, which has been certainly the case as illustrated by our post World War II history. Whenever the Supreme Court does this, the American people have diminished their most precious civil right, the right to rule themselves.

  18. Don: Technically, they only interpreted the 14th amendment a certain way. One can argue whether it was too broad, but then the only solution is to amend the constituion. And if there are not enough votes to do so, then I guess the american people have spoken to a degree.

  19. “Don: Technically, they only interpreted the 14th amendment a certain way.”

    Nope, they read into the Constitution something that is so beyond any textual reading of the Constitution that it might as well have come out of the bearded Spock Universe, and then struck down the laws and Constitutional provisions of the states banning gay marriage, all implemented through the democratic process, and imposed by raw judicial power national gay marriage on the strength of a one vote majority. Now people who view that as wrong are expected to amend the Constitution to repair a completely lawless Supreme Court decision? No government based upon the consent of the governed can long endure this type of high handed usurpation of power. You aren’t bothered by this because I assume you like the result. Be as cheerful when your adversaries use this concept of the Constitution as play-doh against something you cherish, and eventually they will. When one side in a political battle, and that is precisely what this is, acts like bandits, their tactics will be ultimately emulated by their adversaries.

  20. Give me a hypothetical situation. What’s more, if any part of the Constitution was interpreted to forbid the Catholic Church from preaching what it always has on marriage, or forced priests to perform same gender marriages, I would agree with you.

    But this? Its not on that level.

  21. A difficulty we have, Mr. JS Person, is that there are no umpires left in American political life, Most segments of the legal professional are hopeless and the news media are little better than Izvestia style agitprop peddlers. American history is now an apologetical discipline (see KC Johnson on how distorted are the hiring practices of history departments). You do not have any tidy or regularized ways of resolving political disputes and one half of the spectrum trafficks in a discourse that is fundamentally sociopathic. Fifteen years ago, Richard John Neuhaus jabbed one critic for saying of the opposition “we tell the truth; they lie; all the time and about everything”. That used to be a false statement. Now it is a moderately hyperbolic statement.

    When the gloves came off in Spain in 1934, the equivalents of Anthony Kennedy discovered the hard way that someone else had the fight in them.

  22. Give me a hypothetical situation. What’s more, if any part of the Constitution was interpreted to forbid the Catholic Church from preaching what it always has on marriage, or forced priests to perform same gender marriages, I would agree with you.

    You don’t get it. Text and history matter not at all, and are not controlling. The excuses will be offered under an avalanche of verbal trumpery. The immunities of the clergy are no more protected than the immunity of the unborn.

  23. I do not deny, in general, that nations can have nice sounding laws and constitutions that are ignored by the government. I also can’t guarantee with 100% certainty that some fool in the future won’t try and cross the line I described above. I have my doubts, but that’s not the same as a gurantee. One can only hope our history of freedom, multilayered court system, and legislatures will keep stopping these attempts. That, and keep eternal vigilance.

    However, one must be careful when judging what counts as a law so wrong it warrents difiance. You would otherwise have chaos. Even if an individual law represents a worrying trend, it doesn’t neccesarily warrant disobedience. I’ll admit…..a law would have to be REALLY bad in my mind to warrent difiance.

    This ruling doesn’t in my mind, get anywhere close to the line. This is not the only qualification…..but I’m just reitterating…..no one is getting hurt as a result of this specific ruling.

  24. The writing is on the wall.

    “When misguided public opinion honors what is despicable and despises what is honorable, punishes virtue and rewards vice, encourages what is harmful and discourages what is useful, applauds falsehood and smothers truth under indifference or insult, a nation turns it back on progress and can be restored only by the terrible lesson’s of catastrophe.”
    – Frederic Bastiat

  25. BTW…

    I would rather be a fool that is wholeheartedly in union with the precepts of God’s law, nature’s law, vs. the laws of weak men dipping into the plunders provided them at the cost of every taxpayer. Fools for Christ die, but their lives we’re lived to the fullest extent. They were poor, many of them, but they laid their life down as testimony of their rightful owner.
    Our lives are a gift from God. How we live them out is our gift back to Him. A selfish life is not much of a gift at all, rather it is a spiral downward leading to implosion.

    The Supreme Court did not advance our culture. It helped future generations ask for their lusts to be granted and given protection.
    They have in fact, guaranteed the demise of true Life Liberty and the pursuit of true happiness.

  26. This ruling doesn’t in my mind, get anywhere close to the line. T

    The rulings which were the ultimate source of this dispute insist a solitary phrase in a constitutional provision adopted in 1868, the plain meaning of which is an admonishment to executives to apply the law diligently and impartially, require county clerks to issue marriage licenses to pairs of dudes (an idea almost unknown prior to 1987). Buddy, if it does not get near the line in your ‘mind’, nothing does. Quit pretending that constitutional law in your ‘mind’ is something other than the imperious statement of a judge. The pretense is tiresome.

  27. Art Deco: Like I said above….you can bet I wouldn’t buy it if a judge said a priest could be legally forced to perform a same gender wedding.

    Also, as I said above…..we must be careful which laws we rule bad enough to defy. Chaos otherwise ensues. To the point saying liberals can be hypocritical about this. That doesn’t disprove this point, or even justify defying laws we disagree with that are not tyrannical. It merley means the hypocrisy must be called out.

  28. In all honesty, even some liberals would be annoyed by how stringent I would be on the requirements of a situation for it to become ok to break the law.

  29. J.S. Person: What is being argued against is judicial tyranny. Same sex marriage may be the issue at hand but this situation could apply to any issue. The Supreme Court of the United States has arrogated to itself the authority of a pre Magna Carta Sovereign. Instead of the people of the United States devising and implementing social policy, SCOTUS now ideates what it thinks is good and, despite the first three words of the U.S. Constitution and the first three articles separating the powers, imposes its ideals on the American people. This cannot stand.
    The very ideas that drove the pilgrims from England to the shores of North America and to later write the Declaration of Independence was democracy, the rule of law, and freedom from an arbitrary sovereign. SCOTUS has become that arbitrary sovereign. The Constitution and statutes passed by representative legislatures have become mere pleadings to the sovereign.

  30. what was the county clerk to do?

    on one hand, she was told that Kentucky’s laws governing marriage within the state were unconstitutional. on the other hand, she had sworn to uphold the laws of the state of Kentucky and the usa.

    since there are no federal laws governing marriage and the feds said the Kentucky laws are unconstitutional, she either had to issue licenses knowing that the laws under which she was acting were unconstitutional; or, she had to refuse to issue licenses until the legislature of Kentucky provided her with constitutional laws under which to act.

    she chose to honor her oath of office and to wait until she had constitutional laws under which to act.

    the ussc cannot write and promulgate laws. their decisions are not the same as laws.

    where in American jurisprudence have court decisions been defined as the same thing as legislatively-passed and executive-signed laws?

  31. http://reason.com/archives/2015/09/04/remember-the-law-is-only-sacred-when-it

    Judicial review presupposes a particular juxtaposition of the legal profession to other professions and subcultures and pre-supposes a particular legal culture, as well as an understanding between the judiciary and the public analogous to that between the parties to a baseball game and the spectators or between the celebrant and those attending.

    That’s gone, which means that the functional (not theoretical) position of the judiciary as the ultimate arbiter must go. The question is what replaces it. This is something Robert Bork recognized a half-generation ago. Fretting over ‘chaos’ when the import of recent judicial decisions is that elected officials (and participants in referenda) have no discretion if it contravenes what is fashionable in the legal academy is sheer pecksniffery.

    Gottfried Dietze a generation ago wrote and lectured on the distinction between the diffidatio – a re-assertion of ancient liberties – as against the modern ‘revolution’. He regarded the baron’s revolt in 1215, the English civil war, and the American revolution as examples of this, in contrast with the French revolution. He also speculated we were due for another one. Both western Europe and North America are suffering under the mendacious rule of a bunch of crooked Bourbons. The legal profession (especially the appellate judiciary and legal academy), academe, the professional associations and the press have been asking for it, and they ought to get it good and hard. (Mostly, stripping them of legal privileges and public money will do).

  32. The thing about judges is, we have the power to balance them out. Constitutional Amendments and the very way judges are selected. So it’s hardly an oligarchy with absolute power.

    Andrew Jackson once ignored the Supreme Court….and the result was the trail of tears (I’ll admit…he is the president I despise the most. I pray for his soul and wish it well….but his ignoring the court, especially on that, is repulsive beyond measure).

  33. “Constitutional Amendments and the very way judges are selected. So it’s hardly an oligarchy with absolute power.”

    Being a Supreme Court Justice is a life time appointment, and issues continually come up before the Court that were undreamed of during confirmation hearings. (If Justice Kennedy during his confirmation hearings in 1988 had been asked about gay marriage, everyone would have regarded it as a joke in very bad taste.) It is very easy for the Supreme Court to “amend” the Constitution with an illegitimate decision. It is difficult, to the point of futility, to amend the Constitution to repair the damage to the Constitution caused by an illegitimate Supreme Court ruling.

  34. ….fair enough

    Though I still hold ignoring the Court on principle is bad, and the fact that thier decisions can be corrected for with amendments makes the designation of oligarchy an unfair one.

    Recently saw an article on the federalist that outlined ways to “reform” the Court, such as elected members. This, frankly, seems a terrible idea, as is the electing of ANY judges. Even in a free republic, not all officials should be elected.

  35. constitution could be amended to make passing amendments easier. Better than ignoring decisions we don’t like

  36. “constitution could be amended to make passing amendments easier.”

    Leaving aside whether that proposal would be good policy, it leaves untouched the ability of the Supreme Court to amend the Constitution at will, and that unrestrained power, in practice if not in theory, makes the Court an oligarchy.

  37. What else is there? They should have the power to halt us in our tracks, and require extra effort (even if not the extra effort currently required) to overturn them. The idea that you need checks and balances on everyone….including the people….is a good one.

    Its not just that our leaders can’t be trusted with absolute power…..no one can.

  38. Why ought SCOTUS appointments be permanent life time ones? If SCOTUS is such an oligarchy – and at least its liberal members constitute such – then why not enact a limit in term, say 10 years? And while we are at it, enact term limits for Senate and House members as well -12 years for Senate and 8 for House. And afterwards forbid any more public office holding – back to private enterprise or starvation for the lot of them.

  39. “And making it easier to pass amendments means, by definition, the courts power is not absolute.”

    I doubt seriously that any constitutional amendment would have prevented the court majority from reading into the Constitution gay marriage. The problem is not in the Constitution but in the five who betrayed their oaths to the Constitution in order to enact their policy preference.

  40. if a marriage amendment had been added beforehand, it would have. What’s more, for those worried about polygamy coming next, there is a simple solution….a constitutional amendment defining marriage as between two people. The cultural zeitgeist is such as that would probably pass now, even with the sheer number of votes required.

  41. “if a marriage amendment had been added beforehand, it would have.”

    Lets not forget that the Supreme Court majority had no problem striking down state constitutional provisions in enacting gay marriage. If the Federal Constitution contained a ban on gay marriage, I am confident that they would still have enacted gay marriage and said that the gay marriage ban conflicted with other provisions of the Constitution and was unconstitutional. These people aren’t interpreting the Constitution anymore, they are making up a new one piece by piece.

  42. I would bet serious money that if an amendment was added to the US constitution now that defined marriage as between two people, a future supreme court would not touch it. That would be the end of that.

  43. Whatever you do in real life JS, I bet you are not an attorney. Any court that can read a right to abortion and gay marriage into the Constitution will not be stopped by any amendment to the Constitution, other than one which abolishes the Supreme Court,.

  44. The mechanism for dealing with out of control judges is impeachment.

    Or I suppose we could just revive FDR’s court packing scheme.

  45. I would bet serious money that if an amendment was added to the US constitution now that defined marriage as between two people, a future supreme court would not touch it.

    I’m in the bridge-vending business.

  46. I would bet serious money that if an amendment was added to the US constitution now that defined marriage as between two people, a future supreme court would not touch it. That would be the end of that.

    Why two persons instead of a man and a woman? We have haploid gametes and a diploid genome. This is the natural science basis for the number two and a man and a woman. There are also several millenia of religious and cultural norms and, in the history of the United States, only one cultural and legal recognition of the form of marriage.

    If we are ignoring natural science in favor of subjective norms, such as individual wants and a feeling of ‘exclusion’, then rationally any gender and number of persons must form a marriage, if the persons so desire. For the Supreme Court to limit the institution of marriage to two by fiat is simply tyrannical. Trying to pass a constitutional amendment to set a ‘two persons’ rule would be appeasing the tyrant.

    “An appeaser is one who feeds a crocodile, hoping it will eat him last.” – Winston Churchill

  47. Complaints about courts declaring laws unconstitutional have existed since the beginning of the Constitution. Yet it would be very easy to amend the Constution to say something like “The federal judiciary shall not declare Acts of Congress or of the legislatures of the several States to be unconstitutional.” Then why hasn’t that been done? Because everybody only wants that to happen only AFTER laws THEY dislike have been declared unconstitutional (e.g., National Firearms Act, Civil Rights Act, Selective Service Act, ObamaCare etc ad nausaum). That ain’t gonna happen. The current system is here for good. Act accordingly.

  48. “Then why hasn’t that been done?”

    Because it is very difficult to amend the Constitution as set forth in that document, while it is very easy for the Supreme Court to illegitimately “amend” that same Constitution, something that august tribunal does frequently.

  49. “I do not exist” wrote: “The current system is here for good. Act accordingly.”
    .
    I agree and would add, “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

  50. Complaints about courts declaring laws unconstitutional have existed since the beginning of the Constitution.

    No, they have not, because it was never done during the first 14 years the Constitution was in effect and there were only three instances of it in the entire ante-bellum era. If I’m not mistaken, there were only two dozen instances of state and federal laws invalidated in the 35 years after the Civil War, and these tended to turn on jurisdictional matters or legislation which interfered with freedom of contract (which, per Mary Ann Glendon, may have been invalid reasoning but incorporated strands which had an antique pedigree). Prior to 1954, the left tended to favor judicial deference because judicial scrutiny was commonly injurious to innovations in the ambo of federal regulatory and regulatory and welfare agencies. It simply is not true that appellate courts have for 200 years perambulated around annulling settled law willy-nilly.

  51. The current system is here for good. Act accordingly.

    No, it’s here for as long as Congress and the state legislatures put up with it. The beginning of the end will be when Anthony Kennedy arrives at work with the rest of them and discovers the building is padlocked and the staff has been laid off because the funds appropriated for the court to operate have been impounded.

Comments are closed.