Our Disgraceful Judicial System

O. R. Adams Jr., 2016

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Supreme Court Justice Antonin Scalia died February 13, 2016.

Now the political fight between the liberals and conservatives begins and that is the disgrace. It is a prime example of how important the political and personal biases of a Supreme Court justice are. But it is terribly wrong that such biases are allowed to become the basis for a decision on a provision of our Constitution.

This fight will be of extreme critical importance. The ramifications could affect the upcoming presidential election.

But why is it so important? It is because it is within the province of judges and justices to determine the meaning of a particular provision of the law or of the Constitution. And a liberal judge or justice tends to make the decision on the basis of his or her political and social biases, and not on the basis of the purpose for which the provision was enacted. When a provision of the Constitution was enacted, those who formed, proposed, and ratified it, did so to accomplish a particular purpose. It is patently wrong that political or other biases should enter into a decision of the Supreme Court. But that is what we have today.

The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. (George Washington, Farewell Address, September 19, 1796, The Annals of America, Vol. 3, p. 612, Encyclopaedia Britannia, Inc., 1968)

I consider George Washington to be the greatest leader this country ever had. He led our troops in the revolutionary war, sharing at all times terrible hardships, including lack of supplies, extreme winters, and facing an enemy superior in numbers and equipment. He was at times downright stubborn in his resolve to defeat tyranny. After the war was successfully won, he served as president of the constitutional convention which formed our government and our Constitution. There was great dissension among the representatives of the various states, particularly as to slavery in the South.  Washington played an important part, because of the great respect afforded him by all of the people, in holding these representatives together until a great Constitution was formed. His influence helped in getting the states to ratify it. He reluctantly became our first President and served two terms with great respect of his constituents. He fought against foreign intrigues that might weaken the country. He declined to serve for a third term, but his Farewell Address reflected his continuing concern for his country. Without some highly exceptional courage and leadership by Washington and our other founders, we would not have gained our freedom and our Constitution that is representative of that freedom.

The statement, above, by Washington, about the sacred right of the people to govern themselves, and their exclusive right to change the Constitution, was shared by all of the founders. The idea that the Supreme Court could change the Constitution was unthinkable. The idea that politics and personal biases would enter into a judicial decision was inconceivable to our Founders, and for that reason there was no provision to guard against the judicial tyranny that would raise its ugly head in later years. Liberal Supreme Court Justices have many times usurped the right to change our Constitution, which is the sole right of the people and their representatives. This was often done in five to four decisions, with five liberal judges violating their oaths and leaving their constitutional duties to act as judges, and making themselves super legislators changing the meaning of our constitution from its true meaning to what fitted their own personal political and social biases.  

Our founders who formed the Constitution undoubtedly thought that the threat of impeachment would be sufficient to curb misbehavior of judges, and Article 3, Section 1 of the Constitution provides: "The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior ." However, another problem is that after an impeachment is voted by the House, it is tried before the Senate, and it takes "two-thirds of the members present" for a conviction. Samuel Chase is the only Supreme Court Justice that was ever impeached by the House, and he was acquitted in the trial in the Senate.[1] I believe that the misbehavior of a judge in usurping the right of the people to change our Constitution should result in his or her conviction for impeachment, but this has not happened. Getting both an impeachment in the House, and a conviction in the Senate with two thirds of the present members, presents practical and political barriers that have prevented curbing a tyrannical judiciary.  But justice could be accomplished with a simple Constitutional amendment.

The following are four methods of determining what was intended by a provision of the Constitution that were determined in early Supreme Court decisions and have long been followed as accepted legal principles. The fifth prevents what is used by liberal justices to change our Constitution to whatever they want it to be. Using such things is contrary to accepted legal construction, and should never be used. It gives the Court carta blanche authority to pick and choose what it will use as a basis for its opinion, and thereby arrive at any decision it wants.

1. Primary consideration shall be given to the plain wording of the provision. Phrases and ideas of judges or others not in the constitution shall not be engrafted and treated as a part of the constitution. Where the wording needs further construction for application to a particular question, the following additional factors shall be considered to the extent needed.

2. Reliable and relevant legal and general history of this country, and of Great Britain , where applicable, up to the date of ratification.

3. Relevant debates, speeches, and writings of our founders, framers, and those who took part in ratification. [A good example of such a writing is The Federalist, a compilation of papers written by three of our founders, Alexander Hamilton, James Madison, and John Jay, for the purpose of explaining our Constitution, and the meaning of various provisions, for the purpose of having it ratified by the people in the states.]

4. Relevant matters of official record, including congressional records, legislative records, and other official records.

5. Extraneous matters such as personal views of judges and justices, events at a later date, changes in conditions, and what other countries may be doing in like cases shall not be considered, as those are matters for the people and their representatives, who have the sole prerogative to change the Constitution when changes are needed. 

Liberal Supreme Court justices have often engaged in this judicial tyranny, and changed our Constitution to their own personal views. This has been done many times, but I will choose three extremely important cases, as examples of this.

The first of these examples are the sodomy cases. In our original thirteen states, when our Constitution and Bill of Rights was enacted, sodomy was a criminal offense either by statute, common law, or both. "[I]n 1776 male homosexuals in the original 13 colonies were universally subject to the death penalty."[2] These laws remained in effect in the several years later when our Constitution and Bill of Rights were enacted.

Neither the Constitution nor the Bill of Rights even mentions  sodomy. It is beyond reason that our founders, in the Bill of Rights, intended to overturn the laws of all of the thirteen states, and contrary to the universal mores of that time, make sodomy a constitutional right. Yet this is what the United States Supreme Court held. In a five to four decision, in  Lawrence v. Texas, 539 U.S. 558 (2003), a liberal majority of the Supreme Court overruled Bowers v. Hardwick, 478 U.S. 186 (1986), a prior case upholding sodomy laws, and declared a constitutional right to commit sodomy.  There could not be a more clear case of the usurpation of the right of the people to change the Constitution, and of judicial tyrants completely changing our Constitution to their own personal biases.

There are liberal radicals, presenting themselves as judicial scholars, who uphold this kind of shenanigan. They say our Constitution is a "living document," and should be interpreted according to the changing times. This is ridiculous on its face. It clearly changes our Supreme Court justices from judges to super legislators, with no bounds or restrictions as to how they can change our Constitution. It is completely contrary to our form of government which was intended to consist of three branches the executive, the legislative , and the judiciary. It was never intended that the judiciary could enact laws, and certainly not change our Constitution, when that prerogative was specifically given only to the people.

In 2015, in the five to four decision of Obergefell v Hodges, the Supreme Court reached its summit of judicial tyranny, declaring same-sex marriage a constitutional right.

The second example is abortion cases. First, the liberal Supreme Court justices, in several cases invented a fictitious "right of privacy." A right of privacy is of course not mentioned in the Constitution. Since it was unheard of by our founders, there are no writings or historical documents one can refer to for its meaning, and the judges have a free hand to give it any meaning they want. It was one of the ideas used in both the case declaring a constitutional right to engage in sodomy, and in the case declaring a constitutional right to abortion.

Roe v. Wade, 410 U.S. 113 (1973), another 5 to 4 decision, was the case declaring a constitutional right to abortion. It was based primarily on the Fourteenth Amendment to the Constitution. There were no writings or records of legislative debate in any way indicating that by enacting the Fourteenth Amendment it was intended that the laws of most of the states would be overturned, and that a right to abortion, which had never before been heard of in the law, would be made a constitutional right. This was another wrongful and absurd decision. The following is from the dissent of Justice Rehnquist, and clearly shows how erroneous the decision was.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," ... Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and "has remained substantially unchanged to the present time." ...

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter. (Justice Rehnquist, dissent, Roe v. Wade, 410 U.S. 113 (1973) )

The Second Amendment case. (District of Columbia v. Heller, 554 U.S. 270 (2008)) This is one 5 to 4 case in which the majority decision was correct. I use it here to again demonstrate the absurdity of the liberal Supreme Court justices, who would have held that the Second Amendment applied only to military organizations.

The Second Amendment to our Constitution was short and simple. It sates:

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.  

The liberal minority hinged its whole case on the first clause: A well-regulated militia .

Clearly, the first clause is what is known as a prefatory clause, and confers no rights or restrictions on anyone. It is an introductory preface to the clause that protects the rights in question. (See Merriam - Webster Dictionary, for definition of prefatory.) The right referred to is "the right of the people" not the militia. It is also interesting that this is one of the rights that our founders considered fundamental to a free people, and already existing in the people before our Constitution. The Second Amendment does not confer the right it protects an existing right from being "infringed" upon.

I assure you that the men who formed our Constitution and Bill of Rights were quite capable of writing what they meant much more so than the comparative mental midgets that dissented in the case. Had our founders meant the right to be only in the militia, they were quite capable of saying so. They recognized the right as being of the people, which included women as well as men.

Moreover, our militia, when our Bill of Rights was enacted consisted of all able-bodied men. It was not a military organization that included only those in it, like the National Guard. Therefore, had it applied to the militia, it would still have included all able-bodied men.

However, the prefatory clause relating to the militia was not put in the Second Amendment for no reason. Our founders feared a standing army. They wanted the power to be in the people, and they considered a well-armed militia, consisting of all of the people, to be a bulwark of freedom even against the government and a standing army. There is no doubt that this was the reason for the prefatory clause. However, as the majority opinion shows there were a number of other reasons why the founders considered the right keep and bear arms to be a fundamental right of the people. One is the right of self-defense, and the right to defend one's family and property.   In parts of the country, defense against hostile Indians was critical. Also, as noted by the majority, guns were important for hunting and providing food.   

 The minority position that the right to keep and bear arms applied only to military organizations is ridiculous on its face. It makes the Second Amendment completely meaningless. An inherent part of a military organization is its armament. No Second Amendment is needed to arm the military. How absurd!

 The majority opinion was well supported and documented by acceptable historical writings and history, and followed the rules for interpreting a provision of the Constitution, as set out in this paper. 

One more liberal justice on the United States Supreme Court would protect and enshrine in our judicial system all of the wrongful changes that have been made to our Constitution by the Court, for a very long period of time. Moreover, our Second Amendment will undoubtedly be made meaningless. The liberal justices also for many years have been trying to make inroads on the freedom of speech and press, and freedom of religion, protected by the First Amendment. All of these rights will be in dire danger. In fact, as long as liberal justices can change our Constitution, every fundamental right of the people is in danger.

Presently, there are cases pending in the Supreme Court on freedom of religion, and other rights. Consider what the death of Justice Scalia can mean to the outcome of these pending cases.

The ability of judges or justices to usurp the rights of the people, and change our Constitution to fit their own political and social views is terribly wrong, and contrary to all of the fundamental purposes of our Constitution. The people should put a stop to it, and it could easily be done with a simple amendment to our Constitution. It would simply require judges and justices to support any decision on the Constitution by references to the actual wording of the provision in question, relevant history, and historical documentation as set forth in the numbered principles listed above.

I have on this website a book, A Way to Save Our Constitution  From Judges, and two articles, Saving Our Constitution From Judges, and The Shameful Disgrace of Our Highest Judicial System, that set forth in detail the background and support for the numbered principles referred to, above, and the details of the proposed amendment on the matter.  As explained in the book and the articles, the amendment would also have another important effect. In time, it should correct all of the past mischief that has been done by liberal justices, because it would restrict the principle of stare decisis (referring to prior decisions as support for the current decision) to referring only to prior decisions that were supported by those acceptable principles.

Any person who believes in constitutional government, and its three branches of the executive, the legislative, and the judiciary, should support prohibiting unelected judges from usurping the sole right of the people to change our Constitution, and making themselves super legislators.

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[2] Homosexuals and the Death Penalty in Colonial America, by Louis Crompton,, University of  Nebraska, 1976, http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.648.7044&rep=rep1&type=pdf . Also see: The History of Sodomy Laws, http://www.glapn.org/sodomylaws/sensibilities/introduction.htm  .

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