Hope for the best when it comes to Kavanaugh
To begin with, I am not overly excited about Brett Kavanaugh as the Supreme Court nominee. He is too closely aligned with the pseudo-conservative, Hillary supporting, swamp creature Bush family (sorry swamps, I know you have redeeming qualities, Washington DC is a sewer. Doesn’t DC stand for “Deep Cesspool”?). That being said, Kavanaugh is what we got so we’ll have to deal with it.
If I was on the Senate Judiciary Committee I would have a few questions, not only for this nominee but for every nominee to determine their ability to fulfill the oath of office, to support and defend the Constitution of the United States against all enemies, foreign and domestic.
First a little history lesson. In 1803, the case of Marbury v. Madison became infamous for establishing the principle of judicial review, giving the courts the power to strike down statutes, regulations, and executive actions. This case was a coup d’état of sorts. The Framers considered and rejected the inclusion of judicial review power in the text of the Constitution. It was the clear intention of the Framers that no branch would be superior to any other branch. But chief justice John Marshall, attempting to secure his and his party’s power after an electoral defeat, declared the court had the responsibility to set aside acts of the other two branches of the government they deem contrary to the Constitution, thus giving the Court powers the Framers never intended them to have.
Robert Yates, an articulate opponent of the Constitution and my distant cousin, warned that the judiciary being independent of the people and the legislature (lifetime appointments), “no errors they may commit can be corrected by any power above them, nor can they be removed from office for making erroneous adjudications.” Once activist judges realized they were free from the constraints of the Constitution and free from oversight and its repercussions, there would be no limit to the court’s reach. Yates proved prophetic as that is exactly what has transpired.
In light of the above-mentioned despotism of the Supreme Court, it is imperative that we know where a nominee stands on key issues.
First and foremost, I would like to know if the nominees believe the federal government is constrained by the Constitution and the enumerated powers defined therein or if they believe the federal government has the purview to do anything it chooses as long as it can muster enough support.
The Fourteenth Amendment states in part: “nor deny to any person within its jurisdiction the equal protection of the laws.” The Supremacy Clause guarantees the Constitution to be the supreme law of the land and that mere legislation or executive edict cannot override that charter. I would ask the nominees where they stand in relation to defining and awarding “protected class status” to individuals and the legislation and regulation associated with such status. By giving the protected class a separate set of legal protections and preferences, the letter and spirt of the equal protection clause is violated and thus such status is contrary to the Constitution.
In that same vein, I would ask the nominee how in the face of overwhelming evidence proving violations of the Espionage Act, Hillary Clinton is not behind bars when so many others have gone to prison for far less egregious acts. Do the nominees believe that the politically connected live by a different set of rules?
I would ask the nominees to define what any reasonable speaker of the English language would have attached to the phrase “shall not be infringed.” What, if any, limitations are inherent in that phrase. And if they believe limitations exist, how do you derive those limitations from those four words. If no limits can be found within that text, how are any gun control measures Constitutional?
I would ask if the nominees believe we should be a socially-engineered society or should people be free to conduct their affairs as they see fit including being a bigot or a racist. If the nominee believes in freedom, should all legislation that coerces businesses to cater to everyone, even they choose not to; to hire anyone, even those they choose not to; to associate in any way with anyone, even if they choose not to; should not that legislation be struck down.
I would ask the nominees to explain their philosophy on property rights? The Framers designed a central government that guaranteed freedom from coercion not freedom from want. The General Welfare Clause has been used to justify a plethora of redistributive schemes. The key to understanding the intent of General Welfare is the word “general”. For a provision to comply with general welfare as it is found in the Constitution, it must benefit the citizenry as a whole, not a specific individual or group. Do the nominees believe property rights are sacrosanct or do the nominees believe in the welfare state?
I would like to know if the nominees believe the freedom of speech is absolute as long as it doesn’t impose a real, direct, and immediate danger of physical harm to someone else. Or does the nominee believe speech codes and hate speech legislation are Constitutional.
According to Federalist Paper 11, the Commerce Clause was added to correct a major limitation of the Articles of Confederation by creating a free trade zone within the borders of the union. Under the Articles, states were charging tariffs for goods crossing state lines. This was devastating to the economy of the new nation. Thus the Commerce clause gave the federal government the power to regulate interstate commerce. The distinction between commerce or trade and production was repeatedly made clear. The purpose of the Commerce Clause was to promote “unrestrained intercourse between the States themselves to advance the trade of each by an interchange of their respective production” not to regulate everything and anything that has to do with commerce including production and intrastate activities. I would like to know the nominee’s position on the Commerce Clause and if they believe all legislation that depends on the erroneous expanded interpretation of the Clause should be overturned thus rendering the majority of the federal regulatory regime unconstitutional.
I could go on and on with questions ferreting out the crucial beliefs of the nominees but none of these critical questions will be asked or answered. What we will witness is a couple days of tiptoeing through the tulips, getting a packaged image of an individual that will most likely effect the lives of Americans for decades into the future. And it will take us years if not decades to finally get the answers to the above questions. By then it will be too late. Let us hope Kavanaugh believes social engineering has no place in the chambers of the Supreme Court, that the Constitution, as written and intended, should dictate the course America takes from this point forward, and that the only method to modify the Constitution is through the amendment process, not through judicial activism.
Area resident Jack Loesch is a longtime teacher at the University of Akron whose columns appear periodically in the Salem News. Read his website at www.TorchnFork.info. He may be reached at: TorchNFork@frontier.com