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SCOTUS has been attracting a lot of haters lately, mostly because a majority of its justices have been doing its job. That job, of course, has confused Americans for centuries, but it’s not that hard to understand:
- Read a law.
- Read the Constitution.
- Decide if the two are in conflict. If so, the Constitution wins.
The great debate is, of course, the question, “Is the Constitution set in stone, or is it a living document that should evolve with the times?”
Conservatives tend to say, “hey, the founding fathers were some pretty smart dudes – let’s adhere to what they wrote.”
Progressives tend to say, “I’m smarter than those racist old white dudes – the Constitution needs to reflect our evolving thoughts, morals, and customs.”
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At its core, the Constitution is pretty straightforward: It outlines our governmental structure, assigns powers, protects rights and does a fair bit of housekeeping.
What you and I want it to say doesn’t matter. It’s the Constitution, and we’re stuck with it – unless we amend it.
Let me offer an example of the big thing I wish wasn’t in the Constitution: The vaguely written clause giving the federal government the right to regulate interstate commerce. The founding fathers screwed the pooch on the commerce clause.
Why? Because men in power will always seek more power, so it didn’t take long for Congress to figure out, “hey! A lot of stuff has interstate commerce involved.”
That became, “In fact, I can’t think of anything that doesn’t involve interstate commerce!”
And that finally became, “Hell, we can build our entire federal empire around the commerce clause.”
All it would’ve taken is a few words restricting it’s meaning, and America today would be a union of united states – not a nation ruled by a federal government that “allows” states to make internal decisions.
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The most outrage has come with the overturning of Roe v Wade. I confess this one shocked me, as I am pro-choice in the first trimester and always assumed it was settled law. I don’t know the circumstances facing a pregnant mother, so I don’t believe I should be telling her what to do. I’m of the point of view that, “everyone is pro-life, until it’s their 17-year-old college-bound daughter who’s pregnant.”
But, even though I’m not thrilled with the overturning of this decision, it was the correct decision — when you once again analyze the job of SCOTUS:
- Read a law.
- Read the Constitution.
- Decide if the two are in conflict. If so, the Constitution wins.
There’s nothing in the Constitution that even remotely hints at a woman’s right to abortion at the federal level.
“At the federal level” is the keystone there, because the Constitution makes clear powers not specifically designated to the federal government lie with the states.
That’s just not that hard to understand.
There are many, many arguments that can be made for and against abortion, but one argument that can’t be made is that it’s a Constitutionally-protected right. Just as a “right to healthcare” isn’t in the Constitution, neither is abortion.
Another recent decision unpopular with those on the left is the overturning of the “Chevron Doctrine.” For more on this, see Dylan Nolan’s excellent piece here.
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To understand this decision, I believe it’s important to view the issue from 10,000 feet, and take into account the conservative v. progressive view of the role of government.
Conservatives believe government should be small, and stay out of our lives to the largest extent possible. We believe bureaucrats are far too powerful – acting like un-elected noblemen passing judgement on the actions of the serfs who dare tread on their property. We view all people in charge with suspicion, and believe the majority of their decisions are self-serving.
Progressives believe government should be large, and decide what’s best for the people at large — individualism be damned. They believe bureaucrats and regulatory agencies are good, and make decisions based only on what can best serve mankind and the environment. They believe all liberals serving in government — from Nancy Pelosi to the director of Snail Darter affairs — are earnest believers in “the cause” and all that it stands for.
In short, conservatives believe the federal government is an out-of-control monstrosity, and progressives view the federal government as not powerful enough.
Unfortunately for those on the left, as Barack Obama (peace be upon his name) once said “elections have consequences.” And one of those consequences is we have a conservative SCOTUS.
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The overturning of “Chevron deference” is simply a righting to the conservative view of the federal government.
In recent decades, the standard for regulatory agencies has been this:
House and Congress pass a law: Protect the snail darter.
The EPA takes the ball, and runs with it.
The EPA says, “in order to protect the snail darter, we need to ban cattle grazing upstream for 1.4 bazillion miles.”
The EPA creates fifty new positions to oversee, supervise, analyze and enforce their out-of-thin-air no-grazing law.
Cattlemen arrive outside the U.S. Capitol with pitchforks, torches and cattle prods.
The cattlemen’s congressmen enjoy plausible deniability, of course.
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“You’re now in bureaucratic hell … forever.”
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“Darn it!” they tell the cattlemen. “I wish I could help! But I can’t! The regulatory agencies have made that a de facto law now, and they police themselves! There’s nothing I can do! I’ll try and get another new law passed that protects your grazing rights!”
Yeah. Don’t hold your breath, Mr. Dutton … you’re now in bureaucrat hell, forever.
So what did the five conservative (and one liberal) justices decide?
They ruled that the Constitution gives zero power to unelected bureaucrats to make law. Congress makes laws, and the judiciary rules on laws. Bureaucrats do what the hell they’re told. As a result of this decision, there will be no more out-of-thin-air “laws” created by bureaucrats, and if there’s a dispute the decision will be made by the courts — not by the idiot who created the law out of thin air in the first place.
Is that hard to understand? Is there any American alive that can read the Constitution and say, “Right here! It clearly says some unqualified political appointee can make laws, and overrule anyone who fights back. It’s next to the right to healthcare!”
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Another decision by the court that’s been met with much grumpiness by the left is the confirmation that American presidents have absolute immunity for core Constitutional duties when acting in their official capacities —grumpiness inspired because it will “help” Donald Trump with one of the frivolous legal cases against them.
“The president is not above the law,” Justice Roberts wrote for the conservative majority. “But Congress may not criminalize the president’s conduct in carrying out the responsibilities of the executive branch under the Constitution.”
Justice Sonia Sotomayor’s dissent bordered on lunacy, of course: “(If he) orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
I’m pretty sure ordering the assassination of an American, organizing a coup, and taking bribes would fail to qualify as a president doing his official duties.
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It’s also worth noting their decision protects presidents from the really ugly parts of their job. When you dig down into “carrying out the responsibilities of the executive branch,” you’re going to run into decisions that would make the J. Edgar Hoover blush. Illegal wars, assassinations, kidnapping of foreign nationals, torture — the list of technically illegal decisions the president makes is endless.
Without that immunity, could president Obama be charged with murder for blowing up the Wech Baghtu wedding party, which killed 37 Afghan civilians — of which 10 were women, and 23 children? Or attempted murder for 27 survivors of the attack?
I certainly don’t agree with every SCOTUS decision.
I’ll believe a corporation has “human rights” as soon as it can be strapped to an electric chair.
Then there’s their ruling that it’s constitutional that Americans can be forced to buy something (ObamaCare). You can rule it’s a “good idea,” but you can’t pretend it’s constitutional.
Buck v. Bell back in 1927 comes to mind: In an 8-1 decision written by justice Oliver Wendell Holmes, the Court upheld the forced sterilization of those with intellectual disabilities “for the protection and health of the state.”
But, in the end, I have a great respect for SCOTUS … largely because it’s one of the only jobs in the Swamp you need at least some qualifications to get.
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ABOUT THE AUTHOR …
Prioleau Alexander is a freelance writer, focusing mostly on politics and non-fiction humor. He is the author of four books: ‘You Want Fries With That?,’ ‘Dispatches Along the Way,’ ‘Where Have All The Cowboys Gone?‘ and ‘They Don’t Call It The Submission Process For Nothing.’
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6 comments
Good point on Obama’s drone strikes…it was widely reported that his administration increased them by tenfold compared to Bush’s admin…I think “droning” became a verb during Obama’s time. Appalling numbers of civilians killed – not just that one wedding party. Since there is no statute of limitations on murder, Sonya might want to rethink what her deranged logic would do to her Exalted One – as well as Clinton for the Waco massacre.
You’re excusing Obama’s drone strikes? lol
Presidential immunity makes such strange bed fellows.
Don’t know where you got the idea that I was excusing anything…maybe reading comprehension wasn’t your forte in school
“I’m pretty sure ordering the assassination of an American, organizing a coup, and taking bribes would fail to qualify as a president doing his official duties.”
First it is Official “acts” not “duties”. Those are very different. But it does not matter, Trump’s lawyers argued in Court on Trump’s behalf that those were Official Acts. That means he believes if he orders the military (a core presidential power) to kill a political rival, someone who rats out his corrupt acts (former Trump aids have already testified that Trump talked about having leakers executed), or a Senator or Representative who does not vote the way he wants, he would be immune from prosecution. Plus the Supreme Court says that a President cannot be prosecuted while in office. That means that unless the opposite party controls 2/3rds of the Senate, a President like Trump could do anything and would have unchecked power. After all, why not just kill any Representative or Senator that would vote to impeach?
If Biden would do with these newly recognized powers what Trump will do with them, I would be both horrified and relieved at that same time.
In your effort to fight for a small, limited-power central government you nuts have given us the most powerful, unchecked central government, since King George III. A corrupt imperial Presidency supported by wealthy Oligarchs paying for his cooperation.
Trump is the biggest threat to individual liberty since the Civil War. A man who would be King and a Court who may have just handed him a path.
Let’s not forget, it was Trump’s lawyer arguing he could have a political rival killed, and the Supreme Court didn’t respond with “No, you just can’t do that sir.” They responded with “Nobody can even use that as evidence.”
Guys like Drunkle only see this ruling in a positive light because they think their guy will benefit the most from it, and will immediately abuse it first, rather than some establishment Democrat.
I’ll believe a corporation has “human rights” as soon as it can be strapped to an electric chair. Well said. Great article. Thanks, Prioleau.