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by Ron Ewart, ©2011

Does the U.S. Supreme Court understand its constitutional function?

(Jun. 11, 2011) — “The law is not the private property of lawyers, nor is justice the exclusive province of judges and juries. In the final analysis, true justice is not a matter of courts and law books, but of a commitment in each of us to liberty and mutual respect. (John Marshall, Chief Justice, U. S. Supreme Court 1801 to 1834)

“….a commitment in each of us to liberty and mutual respect?” What happened to that as the lofty goal of the judiciary and all other men?   “Liberty”….a pipe dream, when an irrational ideology arises to trump it.  That ideology is liberalism, progressivism, socialism and/or communism and for the last 100 years or more these companion ideologies have arisen to trump individual liberty, fully sanctioned, by the U. S. Supreme Court and many lower courts.

In two recent U. S. Supreme Court decisions, the justices have evidently lost their minds and have become completely detached from “….a commitment in each of us to liberty and mutual respect,” not to mention common sense.  The 8 to 1 decision by the U. S. Supreme Court to grant the police broader search and seizure powers that literally gut the 4th Amendment is hardly a commitment to liberty and instead brings us closer and closer to a Police State…..if we aren’t there already.  And Ruth Ginsburg, one of the most liberal justices on the court, was the only dissenting vote.  Go figure!

The editorial staff of The Seattle Times, not known for its conservative viewpoint, put it this way, in part:  “The ruling falls among a patchwork of exceptions to the 4th Amendment that the courts, unwilling to inquire into the subjective intent of law enforcement, have created.  Yet, giving law enforcement such discretion in claiming exigent circumstances allows even more subjective intent between police and constitutional protections….Requiring police to acquire a warrant should be the rule, not the exception.”

It sounds to us as just another illegal expansion of governmental powers that far exceed the intent of the framers and falls into the same category as the misnamed Patriot Act that should be renamed “Security in Place of Liberty” Act.  At what point will the Bill of Rights be nothing but words on a meaningless document and individual rights become an oxymoron?

The second decision by the U. S. Supreme Court to uphold California’s law that grants illegal aliens the benefit of in-state college tuition, once again flies in the face of “…a commitment in each of us to liberty and mutual respect.” Why is it that people who break the law are granted government benefits or are rewarded in any other manner?  How can they call that “mutual respect” with a straight face?  How is it that non-citizens, who break our laws by just coming here, are given a priority over legal citizens who must pay the taxes that provide the benefits to illegal aliens?  That’s not just egregiously negligent, it is insane, if not bordering on treason.

These most recent irrational decisions by America’s highest court add to the litany of irresponsible, unconstitutional decisions made by them over the last 100 years.  America is where it is today, in a steady decline of freedom and liberty, because of the decisions made by the high court….decisions made by the revolving justices who lean ever more liberal with each passing year.   Why are they more liberal?  One only needs to examine the liberal professors in mostly liberal law schools throughout America and for one other somewhat obscure reason.  Back in the 1880’s the Dean of the Harvard Law School and Justice Oliver Wendell Holmes conspired to change the process of law from the tried and true adjudication of law and legislation with respect to the intent of the Framers of the Constitution and the literal interpretation of the Constitution, to the more subjective adjudication by court precedents that change over time as society changes, euphemistically called “positivism.”  That is how the constitution became a “fluid” document.

But moving on, FDR essentially put the last nail in the coffin of “…a commitment in each of us to liberty and mutual respect.” His New Deal legislation, Social Security, farm subsidies and a whole host of other socialist policies that the U. S. Supreme Court upheld took us farther and farther away from self-reliance, independence, freedom, liberty, mutual respect and a strongly defended Constitution.  Exceptions to the mandates of the Constitution became the rule, not the exception.  The 17 enumerated powers granted to the Federal Government in Article I, Section 8 but more specifically the “Commerce” and “Necessary and Proper” clauses, have been expanded to the point of “anything goes” as long as Congress, or the President, or the Supreme Court, say it is so.

Remember Speaker Pelosi’s comment when asked if Obama Care was Constitutional?  She said: “Are you serious?  Are you serious?” It would be easy to construe from Pelosi’s comment that they, the Congress, can do anything they darn well please.  But the reality is, the Congress has been doing whatever it darn well pleases for a very long time, such that the relatively bright lines of the Constitution have been blurred beyond recognition, and they have done so with the willing approval of the U. S. Supreme Court.

Meanwhile, individual rights under the first 10 Amendments have been “exceptioned” to death, at the hands of the U. S. Supreme Court.  Social policies and “security” trump individual liberty.  Environmental policies trump property rights, one of the most important pillars of a free society.

The real test of the Supremes is coming when they must adjudicate the constitutionality of Obama Care.  If they uphold Obama Care as constitutional, then there is nothing that the Congress or the President can’t do and the constitution will be dead forever.

Ladies and gentlemen, we submit that if you build a giant, multi-story building that has a built-in inherent flaw that could cause it to collapse without warning, you have two choices to correct the flaw.  You can take the building apart, piece by piece to uncover the flaw, remove the flaw and rebuild it from there, or you can demolish the building in one big giant explosion and re-build the building on its original footprint, from the ground up, after having hauled the flawed debris away.  Unfortunately, the results of a giant explosion are unpredictable and the building’s demise may cause more damage than intended.  So the only logical and safe decision is to take the “building” apart, piece by piece, until the “flaws” are uncovered, and then rebuild the “building,” minus the flaws.

But to take the “building” apart, piece by piece, will take millions of workers to accomplish the task.  You can’t attack the “building” in a big rush; you have to take each of the pieces apart carefully and examine them for their inherent flaws and then correct the flaws in each of those pieces.  In our analogy, the “building” is the federal government.  The state and local governments are each of the rooms in the “building.”  We either take the government apart at the local level (the pieces), or we are left with having to demolish the “building” in one giant explosion, where the unintended consequences of that explosion could exceed our ability to control the outcome.

Let us hope that as we dismantle the “pieces” and expose each of their flaws, we can eventually return to Chief Justice Marshall’s wisdom of …a commitment in each of us to liberty and mutual respect.

We have devised such a method to take the “pieces” apart in our “Liberty or Defiance-USA” project.  Check it out at: http://www.narlo.org.