Recently, Senator Ted Kennedy (D-Mass) had this to say regarding the Judiciary Committee’s vote to recommend approval of Judge Samuel Alito to the Supreme Court:
This is the vote of a generation. If confirmed, this nominee will have an enormous impact on our basic rights and liberties for years and even decades to come….
After all, the Supreme Court is the guardian of our most cherished rights and freedoms. They are protected by the most solemn promises of the Constitution and symbolized in four eloquent words inscribed above the entrance to the Supreme Court: “Equal Justice Under Law.”
Those words are meant to guarantee that our courts will be an independent check against abuses of power by the other two branches of government. It is a commitment that our courts will always be a place where the poor and the powerless and the underprivileged can stand on equal footing with the wealthy and the powerful and the privileged.
Let’s consider these words in light of some Supreme Court decisions:
Kelo vs. New London (Property Rights)
If you’re not familiar with last year’s case, Kelo vs. New London, you should be. Fifteen property owners (out of 115 lots) did not want to sell their property to the New London Development Corporation, who wanted to build a hotel and new residences on the site. So the city of New London used the power of eminent domain to condemn the property, and turn it over to the private developer.
This is a clear and obvious violation of the fifth amendment, which limits the power of eminent domain for “public use” only. This has always been considered for direct use by the public — things like roads, bridges, schools, and government buildings. But in this case, the term “public use” was expanded by judicial fiat to include “economic development.” The government forcibly takes property from one individual, and puts it in the hands of a private development company, for new residences, hotels, etc. If there was ever a clear violation of the Constitution, this is it. But the liberal wing of the Supreme Court voted in favor of New London.
Who dissented in this case? The dissent consisted of Justice Sandra Day O’Connor, along with the justices most feared by liberal Senators such as Kennedy — Chief Justice William Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas. The conservative wing of the court wanted to protect the explicit promise of the Constitution — that the government does not have the power to take your property, except for public use. But the liberal wing of the court simply gave the government a free pass, and effectively removed the last phrase of the fifth amendment from the Constitution. As O’Connor wrote, “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”
Kennedy doesn’t seem to be too worried about how the “poor and the powerless” fared under the Supreme Court in the Kelo case, where the liberal wing of the court sided with the “powerful and privileged.”
McConnell vs. Federal Election Commission (Freedom of Speech)
If you’re not familiar with the McCain-Feingold Campaign Finance bill, you should be concerned about it as well. It was challenged in the Supreme Court in 2003 (the bill passed in 2002). In the case, McConnell vs. Federal Election Commission, McConnell argued that the bill amounted to an unconstitutional infringement on first amendment speech. The Supreme Court upheld the legislation.
Liberals have already been pushing to apply McCain-Feingold to political talk radio and Internet blogs (I’m sure mine would apply). As Brian C. Anderson wrote in his recent column, Shut Up, They Explained, “the Founders would have seen in the reformers’ utopian schemes, in which the power of government makes all equally weak, the embodiment of tyranny.” Of course, liberals have little to worry about, because McCain-Feingold gives the traditional media (which are overwhelmingly liberal) a free pass.
Who dissented in this case? The dissent consisted of Justice John Paul Stevens, along with the justices most feared by liberal Senators such as Kennedy — Chief Justice William Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas. Thomas wrote that this was the “most significant abridgment of the freedoms of speech and association since the Civil War.”
The reality is that every campaign finance reform passed in the last 30 years has benefited incumbents. Those challenging incumbents need to spend money to mount an effective campaign. The McCain-Feingold bill makes it more difficult for challengers to unseat incumbents.
How can liberals claim to want to protect “our most cherished rights and freedoms,” and not be outraged at the eroding of our freedoms in terms of property rights and freedom of speech?
While liberal senators like to claim that the recent judicial appointments would turn back the clock on things like civil rights for minorities, it is rights such as freedom of speech and peaceable assembly that opened the door for figures like Dr. Martin Luther King to have the ability to impact the country the way they did. These are the freedoms we should hold the most dear. Democracy cannot survive without them.
Roe vs. Wade (Abortion)
For some reason, liberal Senators like Kennedy are more worried about imagined rights than they are about actual ones. If they have any indication, whatsoever, that a candidate to the Supreme Court (or any court, for that matter) might not hold the belief that abortion is a “right” they will oppose that candidate to no end. As Ann Coulter puts it, liberals believe abortion is an absolute right “up until the moment the baby’s head is through the birth canal.” But the very candidates they champion, that are sitting on the court, are eroding rights that are specified in the Constitution. Property rights? Big deal. Freedom of speech? Who cares? But abortion? Don’t mess with it!
The fact is that Democrats have been consistently on the wrong side of every major moral issue that’s ever faced this country. It was a Republican president who had the courage to sign, and enforce, the Emancipation Proclamation, while Democrats were split over how to maintain slavery in Southern states. It was Democratic senators who attempted all-night filibusters (when filibusters actually required constant debate), trying to prevent civil rights legislation from passing. (And for those of you who don’t know, one of the most famous orators fighting against civil rights legislation was Robert Byrd from West Virginia, who is still in the Senate!) It is Democratic senators who continue to wail and moan over any possible restrictions on abortion. They’ve been consistently wrong in the past, and they will continue to be wrong.
Abraham Lincoln said that you can “repeal the Declaration of Independence — repeal all past history — you still cannot repeal human nature. It will still be the abundance of man’s heart, that slavery extension is wrong; and out of the abundance of his heart, his mouth will continue to speak.” Replace the words “slavery extension” with “abortion”, and it wouldn’t be any less true. Those who frame every debate, every judicial nomination, and every issue around their requirement of supporting unrestricted access to abortion, only make their own moral depravity more and more clear as they continue. And as they support those who would erode our basic Constitutional rights, and reject those who would uphold our basic Constitutional rights, they only reveal their own hypocrisy.
Further…
I haven’t even touched on the freedom to bear arms or the freedom of religion, both rights that liberals do not champion. Liberals would be more than happy to take away everyone’s guns, and have repeatedly pressured to have religion taken completely out of the public arena.
Kennedy is correct in saying that “the Supreme Court is the guardian of our most cherished rights and freedoms. They are protected by the most solemn promises of the Constitution.” The problem with liberals is that they don’t know what “cherished rights and freedoms” are actually guaranteed by the Consistution. They ignore the ones that are explicitly stated, and invent others out of thin air.
I think it’s amazing how people have such lofty ideas about what our branches of government are supposed to accomplish, when they rarely live up to those ideals. This is especially true when it comes to the Supreme Court. “Separate but equal”? Yeah, right! And it took nearly 100 years for it to change its mind! Thank God they changed their minds, but they could have saved our country a lot of grief by ruling the right way the first time.
The other thing that bothers me about the Supreme Court is that, once they make a decision, it’s like everyone is expected to treat it like God’s holy law for our nation. I don’t understand how a small group of people can make such important decisions that go unquestioned and unchallenged within the government. It’s the one branch that has no checks of power, and it has misused that power many times.
Well … there are natural checks on the power of the Suprmeme Court, its just that the nation has allowed it to go so far that its become an abuse of power. I think you’re seeing a proper check of the power of the Court by the justices that Bush has been appointing. It will change the makeup of the Court for a decade or so. That’s the way its supposed to work
The problem is that, unfortunately, the major allies of the Civil Rights Movement happened to be activist federal judges back in the 50′s and 60′s. And despite the need for change, this gave those progressives and the modern progressives the faulty idea that the Supreme Court should be an activist court in all cases and situations for all progressive causes.
Can you imagine if the liberals fought for our rights to have guns the way they fight for abortion rights? Micah would already own a gun, provided by the government, and they’d be teaching him how to use it.
One of the reasons that we have the right to bear arms is to protect ourselves against an oppressive government … and that is exactly why the liberals are all too eager to take them away.
Peace.
The available checks of the Supreme Court are pretty weak. The primary checks are that (a) Congress sets the jurisdiction of the Supreme Court, in other words, what types of cases it can hear, (b) Congress can impeach justices, (c) the Constitution can be amended, and (d) Congress sets the size of the Supreme Court. That’s it. I wouldn’t call replacement appointments a “check.” There’s no easy way to reverse the Kelo decision, for instance. A “check” would have prevented that incredibly awful decision from taking effect in the first place.
I would say, though, that the founding fathers were willing to accept bad decisions by the court to preserve the ability of those judges to make decisions free of personal repercussions. They made the Supreme Court term for life for a reason. If it were easy to either get rid of the judge or change their decisions, then it would undermine the judicial system more than we think.
For a historical example, FDR would have been able to completely remake the court so that there would have been no challenge whatsoever to his socialization of America. The fact that there was a very conservative court through the 1930′s, appointed by the Republican presidents over the three previous terms, actually limited FDR’s socialist ideas and got rid of much of his extreme legislation.
For a hypothetical example, the Court is now largely conservative, which scares liberals to the core of their beings since they view the Federal courts as their greatest ally in furthering their extremist agenda. Now lets say that there is a way to easily remove or “check” the Court other than what the Founders intended. Now let’s say that Hillary Clinton gets elected. Now that there is a conservative court, do we want that her to have that power? Or lets say that the House and Senate are controlled by Democrats in two or four years. Do we want them to have that ability, too?
I think that the system has largely worked. Conservatism has won elections. The will of the people has spoken. The Republicans have control of the House, the Senate and the Presidency. There is now a conservative court that will last for a generation. Believe me, a liberal Congress or a liberal President will have fits with them in the future. Praise God.
Bill Clinton won elections. He got to appoint Communist, extremist, liberal activist judges. That’s his job and the spoils of victory, just as Bush has had his. It was actually one of the major reasons I voted for Bush, since I knew that at least one if not as many as three would die or retire during his next term. There are still a couple liberal judges that are hanging on until a Democrat comes into office, if they can wait that long.
This isn’t even including all the Federal judges that Bush has appointed. He’s changed more than we can see right now, but will, like I said, influence a generation. It will be interesting to see what will happen if another Republican gets elected.
I would say, with the power of judicial review and the way its been used in the past, one check that might be added would be something similar to a veto situation. Where if the Congress votes and gets 75% approval on a law, then they can overturn a decision by the Court to declare something unconstitutional. This would rule out some of the major activism and require support from both parties in order to overturn a decision by the court. This would put legislation more firmly in the hands of the legislature, as well, which is the reason for the power to overturn a veto.
There have been presidents who have made pretty dumb decisions that took years to either correct or address. Its become a much more powerful position than the Founders intended. Do we put more limits on his power, too? The liberals would love that. They’d vote for it.
Again, I think that the system has worked. It could be improved, but overall, its working. We just need to be dilligent to be educated about what the different branches are doing and vote according to our conscience.
Peace.
Actually, since the Congress controls the size of the court, and FDR had the ability to implement anything he wanted to, he actually did threaten to double the size of the Supreme Court, and nominate judges that would support his view of the commerce clause. Only then did the sitting justices have a change of heart and no longer struck down FDR’s legislation.
The real check we have over the Supreme Court is the Constitution itself, particularly through an amendment process. But that process is so long, it’s not very effective against awful decisions. And how would we propose an amendment to counter the Kelo case? The existing wording is clear enough. Impeachment is really the correct path there.
I’ve had the thought of some kind of supermajority of Congress overturning a court decision. I’m not sure about it. I think the rules would have to get complex, to make sure that Congress couldn’t just get away with whatever it wanted. You’re right that the way the framers set it up, things should get straightened out in the end. But we’re still living with the awful interpretations of the commerce clause (which is what gives the federal government it’s current immense power — the framers would be immensely against the “department of education”, for example), and that’s going on 100 years. At some point, I think the “reset” button will have to be pressed, and we’ll have a revolution that will put the federal government back in its original place — handling foreign affairs (including defense), resolving disputes between the states, and handling currency. All it would take would be having the states call a constitutional convention, and they could recommend any changes they wanted… and then the states would ratify it. That would be SO cool.