Tag Archives: scotus

SCOTUS Proves Once Again It Is the Wrong Body to Determine Federal Powers

A leaked draft of an opinion written by Justice Alito of the U.S. Supreme Court suggests the Court is prepared to strike down the 1973 Roe v. Wade decision that found unconstitutional state laws prohibiting abortion. The ruling would also strike down modifications made in the Planned Parenthood of Southeastern Pa. vs. Casey decision of 1992.

If the final decision is substantively the same as the draft, it will continue a process of “re-federalization” that has been gaining momentum since the 2016 election cycle. Many viewed the Donald Trump presidency as divisive, but Trump’s election was more revelatory of existing divisions than divisive itself.

Long before Trump declared his candidacy, many states had already effectively nullified federal marijuana regulations and immigration laws. Talk of Texas seceding from the union had resumed during the Obama administration; similar rumblings in California began soon after Trump was inaugurated.

What has inspired the most rancor on both sides are cultural issues: abortion, what is taught in schools, who is allowed to get married, who is and is not required to bake the wedding cake, and who is and is not allowed to cross the borders, immigration being both a cultural issue and an economic one.

There is also an underlying dissatisfaction with economic outcomes, which are most affected by the monetary system and the New Deal regulatory structure, although neither conservatives nor liberals seem anxious to address either.

None of the federal powers above, including regulating immigration, are expressly delegated to the federal government in the Constitution. They were all “discovered” by the Supreme Court using reasoning arguably as dubious as that employed in Roe v. Wade.

The whole idea of judicial review for constitutionality is a suspect one. The reason for having a written Constitution in the first place is to ensure there is no confusion about what powers the federal government has been delegated and not delegated. It should not be necessary to hold a legal proceeding, followed by a lengthy written decision by the “finest legal minds in the land” to determine whether or not a given power is delegated to the federal government in a five-page document.

If there is any doubt at all, an amendment should be offered. That is the only honest way to obtain consent of the governed for a new power. Acquiring power through the court system is a transparent attempt to do so without the consent of the governed, with knowledge aforethought that you are imposing authority that would not be granted voluntarily.

Article V of the Constitution provides the means by which consent of the governed is obtained by the federal government. It is not obtained through federal elections. They merely determine who exercises power, not what power is exercised.

Neither are amendments ratified by a simple majority of United States citizens. They are ratified by a supermajority of the states, who are the parties to the Constitution. They formed a federal government, not a national one, for the express and stated purpose of preventing a simple majority of all U.S. citizens from ruling over a unitary nation.

This is clear from notes on the constitutional convention taken by James Madison and Robert Yates. Forming a national government with the states as mere subdivisions was thoroughly discussed and rejected. The union would be a federation of states with limited powers delegated to the federal government and all others retained by the states or the people.

This is more than just academic pedantry. The United States is a boiling cauldron of political hatred about to boil over. Once the abortion decision is official, we can expect a repeat of the rioting we saw in 2020 over George Floyd. We saw even the typically orderly right give into similar behavior last January. There is no reason to believe things will simmer down anytime soon.

Article V provides a way out of this. Offering amendments to grant the federal government those powers it has illegitimately acquired in the past through the courts will result in one of three outcomes for each disputed issue: 1) the amendment will be ratified as offered, 2) the amendment will be revised through negotiation into something a supermajority of states accept and then ratified, or 3) the amendment will fail completely, making clear to all this is a power that must be reserved to the states.

Perfection is unattainable in any political process. But any of the three outcomes above would provide a pressure valve on the issue in question. Amendments should be offered for all powers obtained by the federal government through the courts in the past, no matter how long ago the acquisition occurred: regulation of abortion, immigration, healthcare, education, and marriage included.

While we’re at it, why not settle the very first constitutional crisis the way it should have been settled: an amendment granting the government the power to incorporate a bank.

Given the exponential growth of the federal government over the past one hundred years, dozens of amendments should have been offered during that period. Yet, since 1933 only six have been ratified, one of those being what would have been the Second Amendment if ratified when originally proposed in 1789.

Both conservatives and liberals are reluctant to pursue the constitutional amendment process because it is difficult by design. But there are only two ways to exercise power: with the consent of the governed and without it. Americans have chosen the latter over the past century, taking the relatively easy, dishonest route to power through the court system. That has led us to where we are now: at each other’s throats.

We would be wise to retrace our steps and determine the federal government’s powers legitimately before we have a real insurrection on our hands.

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

Progressives Want to Revive FDR’s Undemocratic Court-Packing Idea

judgeandgavelReeling in horror over President Trump’s nomination of Brett Kavanaugh (or whomever Trump may have picked) to replace retiring Justice Anthony Kennedy on the Supreme Court, there are now a slew of progressive liberals calling for implementation of one of the most undemocratic ideas in the history of the Democratic Party: FDR’s “court-packing” scheme. Roosevelt responded to the Court striking down some parts of the New Deal by proposing Congress pass a law to allow him to add a new justice to the Court for every current justice over seventy years of age.

The bill was ultimately struck down by the Democrat-controlled Senate in 1937, but only after both the Social Security Act and National Relations Labor Act were ruled constitutional by the Court earlier that year. Opponents of the New Deal specifically or expansion of federal power through SCOTUS in general view these decisions as somewhat coerced by the threat of Roosevelt’s court-packing proposal.

Whether that’s true or not really misses the point. Seeking to achieve political goals through Supreme Court rulings rather than the constitutional amendment process—when those goals involve the federal government undertaking new powers—amounts to acquiring power without the consent of the governed. It’s ironic that it is again supporters of the “Democratic” Party who are advocating avoiding a vote on their proposals.

Read the rest at Foundation for Economic Education…

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

Jefferson and Madison: Regulating Immigration a Power “No Where Delegated to the Federal Government”

immigration_constitutionPresident Trump announced his second nomination to the Supreme Court on Monday. Perhaps as forward in the minds of conservatives as preserving the right to keep and bear arms, expressly protected from federal infringement by the Second Amendment, is how the new justice might rule on the Trump administration’s various immigration policies, decried by the left as “fascist!” and supported by the right as the federal government’s “constitutional duty.”

Yet, federal regulation of immigration is a power both Thomas Jefferson and James Madison maintained was “no where delegated to the federal government.” And since no amendment has granted that power since they made that argument in 1798, it is exercised by the federal government without the consent of the governed, legitimized only by the same kind of “activist Court” conservatives condemn when it sanctions federal power they don’t like.

First, to the document itself. Conservatives make two arguments for the Constitution somehow delegating this power. One is completely spurious; the other more plausible, but ultimately without merit. The first argument is the power is granted with the words, “To establish an uniform Rule of Naturalization,” in Article I, Section 8. But “naturalization” concerns only who can become a citizen of the United States, not who can visit, work or live as a permanent alien. When pressed, even most reasonable immigration hawks will concede this.

The second argument concerns the first paragraph of Section 9, which reads, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” The reasoning here is that since the federal government is prohibited from banning migration (immigration) or importation (the slave trade) only until 1808, it must be granted the power to do so after 1808.

This is the same backwards reading of the Constitution – that anything not prohibited to the federal government must be within its powers – that conservatives scream bloody murder about on almost any other issue. It is true that for individuals possessing an inalienable right to liberty, a law which prohibits, for example, certain activity on Wednesdays and Fridays does not restrict individuals from that activity on any other days of the week. That is a correct legal interpretation for laws pertaining to individuals.

However, the Constitution is not a set of laws pertaining to individuals and the federal government does not have an inalienable right to liberty. On the contrary, the Constitution is written with the assumption the federal government has no power not delegated to it. The Tenth Amendment was ratified to ensure that point wasn’t lost. Therefore, just because certain powers are prohibited to the federal government by one or another clause of the Constitution, one cannot assume that any power not prohibited is granted. Only powers explicitly delegated are within the federal government’s purview. Strict constructionists go so far as to point out the words “expressly delegated” were used in many of the ratifying conventions, “expressly” left out by Madison in drafting the Tenth Amendment because he thought it unnecessary.

Read the rest at Foundation for Economic Education…

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

The Supreme Court Has Destroyed Consent of the Governed

us-supreme-courtAs Americans celebrated the 242nd anniversary of their secession from Great Britain, references to the Declaration of Independence ratified on July 4, 1776 were many. But while the left reminded us “all men are created equal” and the right reminded us that all inalienable rights come from our Creator, far too little attention was paid to another phrase in Jefferson’s famous preamble: “deriving their just powers from the consent of the governed.” Judging from the way most Americans talk, almost no one remembers how that consent is supposedly obtained.

Hint: It isn’t from voting in elections, but that’s what most Americans seem to believe. According to this narrative, representatives are elected democratically, and by casting one’s vote, one consents to whatever legislation the representatives who win the election choose to pass, or whatever executive actions the elected president chooses to take. In the aftermath of Obamacare’s passage, surrogates for President Obama often justified that new federal endeavor with the quip, “That’s why we have elections.” Conservatives employ the same reasoning when their candidates win.

That raises the question: Why did the framers bother with Sections 8, 9 and 10 in Article I, Sections 2, 3 and 4 in Article II, or Sections 2 and 3 of Article III? Why did they include Article V at all?

The answer is that the aforementioned sections define the list of powers the people were consenting to, all others being reserved to the states or the people, while Article V was provided as the one and only means for the people to consent to any new powers. Put another way, any power exercised by the federal government that is not among those delegated in the Constitution is power exercised without the consent of the governed.

Read the rest at Foundation for Economic Education…

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.