THINKING OUTSIDE THE BOX
By: Dr. Chuck Ormsby – May, 2010
I used to be against an activist Supreme Court. I no longer am.
I want an activist Supreme Court. I want the justices to do their job.
Don’t just defend the Constitution (for a change), but begin to repair the damage that has accumulated from years of intentional destruction.
Liberal or Progressive justices have consistently contorted the language of our Constitution to free the federal government of the legal constraints erected by our nation’s founders, constraints that were carefully engineered to protect individual liberty. When carefully crafted contortions were not up to the task, judges merely ignored the Constitution’s explicit instructions.
Their modus operandi has been: First try to twist it, but if you can’t twist it, ignore it.
Make no mistake about it, contortions of the framers’ intent during the 1800s may have been viewed as innocent shortcuts to conveniently deal with the “problem du jour,” but more recent attacks on the Constitution over the last 100 years have been consciously orchestrated by judges who seek to fundamentally change our form of government.
The destruction of our constitutional protections is cumulative and its ability to safeguard our liberties is hanging on by a thread. The Constitution is on life support and the Progressives, led by President Obama, are reaching for the plug.
Today, our government’s laws, agencies, and daily practices are routinely in conflict with our Constitution. When Congress crafts a law, it no longer worries very much about the Constitution. When constitutional questions do arise, it is not the Constitution that restricts lawmakers; they merely find permissive precedents piled on top of faulty decisions that give them the desired license to tighten the noose around our necks.
A substantial majority of our government’s powers that are routinely exercised are without proper legal basis. Most of our federal laws are inconsistent with the Constitution’s original intent and, therefore, the actions taken by our government to enforce these laws represent an abject abuse of power.
It is time to perform a house cleaning and correct the purposeful contortions of logic that our courts have committed. If the blueprint for governing America, based on individual liberty, is not restored by our Supreme Court soon, it may be too late.
The United States has a social compact. It is called the Constitution. The intent of our Constitution is clear when based on its plain text read in the context of the times during which it was written and debated.
We are lucky that the voluminous debate that occurred during ratification is well preserved.
The historical record makes the following two conclusions abundantly clear:
1. There is no constitutional basis for the unbridled growth of government power that the courts have progressively embraced since our founding, and
2. There is no legitimate legal basis for the resulting, substantial loss of the freedoms of American citizens.
It is time for a house cleaning. It is time to re-establish our Constitution as the supreme law … not the supreme suggestion … of the land.
Past decisions, decisions that plainly extend the federal government’s power beyond that intended by our founders, must be overturned.
The offending decisions do not need to be overturned or unraveled one-at-a-time, like a movie run in reverse. The court merely needs to apply the Constitution’s original intent to cases going forward. Doing so would go a long way towards restoring the American Dream.
There are numerous individual decisions that would contribute to revitalizing that Dream and avoiding the constant erosion of constitutional protections.
One would be a decision that recognizes the Second Amendment as protecting an individual right and, therefore, neither the federal government nor the individual states could arbitrarily deny an individual’s right to keep and bear arms. An opportunity to do just this is currently pending (McDonald v. Chicago).
A second would be overturning the Kelo v. City of New London decision (protecting private property from eminent domain abuse). While the Kelo decision has not led to a wholesale abuse of property rights yet, it represents a precedent that could not only excuse but encourage routine takings of private property in the future.
A third would be restoring our First Amendment rights to political speech by overturning the decision that declared the McCain-Feingold Campaign Finance “Reform” Act constitutional. What the court did not understand about “Congress shall make no law … abridging the freedom of speech” is difficult to comprehend.
Each of these corrections of past errors (or purposeful distortions) would be very important, but none of them would substantially drain the swamp. There are two decisions that this author sees as having the potential to resurrect the constitutional barriers to the government’s constant assault on our liberties.
The first would be a decision that severely restricts the interstate commerce clause and, therefore, the license it gives the government to constantly expand its authority over our lives.
Calling the interstate commerce clause “the elastic clause” used to be a cute way of saying it has been expanded well beyond what the authors of the Constitution intended. It is no longer cute. It is now an admission that the courts have played fast and loose with our Constitution. They have turned a well-meaning clause into a “get out of jail free” pass for the government.
Any time the government has wanted to meddle into the economy and make it less free, it has turned to the commerce clause for a ready excuse.
The original intent of the commerce clause was to keep the states from setting up protectionist tariffs at state borders, thus restricting FREE trade and Balkanizing our economy. It was initially intended to protect the operation of free markets, to encourage the growth of our economy, and to expand our economic freedoms.
It was NOT intended to restrict markets or our freedoms. And it certainly was not intended as a hammer to force individuals to buy anything, and certainly not health insurance.
Imagine James Madison’s response if told that the commerce clause would one day provide the government the power to force a single man or an 80-year-old woman to purchase insurance that covers pregnancy! If we truly understand individual freedom, as Madison certainly did, we will also understand that freedom extends to allowing individuals to not buy goods or services even if someone else, anyone else, thinks they should.
The legal challenges currently being brought by 18 to 20 states against the recent government takeover of healthcare provides the court a chance to make a very clear decision restricting the powers previously excused by the commerce clause.
If handled properly, the decision could have an impact well beyond the healthcare debate and dramatically reign in the federal government’s power over our daily lives. Once the decision is rendered and the associated principles clearly enunciated, future challenges to oppressive federal regulations across a wide spectrum of activities can be mounted.
he other major opportunity to re-establish individual liberty is to ensure that the Ninth and Tenth Amendments, long ignored by our Supreme Court, are fully respected.
Their language is plain and their intent is clear. Precisely for these reasons, distortions of logic could not obliterate them … only ignoring them would permit Progressive judges to escape their confines.
Here they are:
Ninth: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Tenth: 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.
If you research court decisions that rely heavily on these amendments, you will find that few exist. All they are good for is restricting the federal government’s power while protecting the rights of the states and individual citizens … and what Progressive/Collectivist wants to do that?
To hell with “stare decisis et quieta non movere” which translated means “to stand by and adhere to decisions and not disturb what is settled.”
Gross violations of the plain text meaning of the Constitution can never be considered settled.
The Constitution is there to protect us – you and me – not to let the government run roughshod over our lives.
We will only be able to re-claim our liberties if the voters speak loudly (not softly) in support of liberty this November.
If we don’t, our only redress will be to carry a big stick. And who knows where that will lead.