Thursday, June 28, 2018

The Supreme Court Is Not Everything

Democrats and Liberals are in full meltdown mode upon the announcement of Supreme Court Justice Anthony Kennedy's retirement.

Why is that?

The tweet below gives the real reason why the Liberals are melting down.

The Supreme Court is everything.


I thought the Constitution was everything in The United States of America.

Why is the Supreme Court everything to Liberals?

The Democrats know that without the Supreme Court "making law" they have little hope in realizing their progressive ideals. They have generally failed in establishing any of their agenda through Constitutional means. Most everything they care about in the last 30 years did not come from legislation or constitutional amendment but by the opinions of five Supreme Court justices. Look no further than abortion and gay marriage as prime examples. Or the affirmation of the constitutionality of Obamacare.

There was a time when the Constitution meant something. It was respected for what it was. So were the limitations that were carefully crafted into the document by the Framers. Even when there was pretty compelling language in the Constitution to bend it to the "current times" it was ruled out of bounds. Has something been lost?

Consider a few examples in our history.

President Lincoln had effectively abolished slavery through his Emancipation Proclamation in 1863 but he still believed in the necessity of following Constitutional standards and proposing the 13th Amendment abolishing slavery.

Lincoln's effort in this regard is the subject of the 2012 movie "Lincoln". Why did he see the need to go though all of that effort when it could have been done by the Courts or by letting his Emancipation Proclamation do the job? He did it because he wanted the legitimacy of the process. He wanted something lasting and permanent.

Article I, Section 8 of the Constitution provides that Congress has the power to lay and collect taxes. Nevertheless, the income tax law of 1892 was ruled unconstitutional because it was considered outside the power of Congress. The 16th Amendment was ratified in 1913 to allow it.

There is also nothing in the Constitution signed by the Framers that precluded women from voting. All references in the document were to people, not men.  However, the culture and custom was generally for only males to vote. Nevertheless, it took the 19th Amendment in 1920 before it became the law of the land. Interestingly, 15 states (beginning with Wyoming in 1870) granted women the right to vote before adoption of the 19th Amendment.  Since voter eligibility was an issue left to the states (in that it was not specifically enumerated in the Constitution by the Framers) women in these states voted in both state and federal elections before 1920.

Was the Constitution designed to change with time? Of course. That is what the amendment process is for (Article V).  The Framers in their wisdom also considered this carefully.  They did not want it amended for some passing fancy.  Nor did they want a small majority to change the key foundations of the governing document to the detriment of a significant minority.  Therefore, 2/3 of both the House and Senate can come together and propose any amendment.  They do not even need the President to concur.  Alternatively, 2/3 of the states can come together and call a convention to propose their own amendments and bypass Congress completely. You don't even need the President or Congress in this method.

 If the amendment is ratified by 3/4 of the states it is adopted as part of the Constitution.


If the American people want a federal government with expansive power they can have it. They can allow gay marriage. Or ban it in all 50 states. The same with abortion. They can ban the use of alcohol or repeal the ban and allow it again. They can provide a constitutional right to marijuana or other drugs. They can require everyone to buy health insurance or anything else.

However, it is simply not within the power of a handful of judges to suddenly discover fundamental rights that have somehow been hidden in the Constitution for over 200 years and start applying them to 325 million citizens by fiat.

That is why there is an amendment process to the Constitution.  It is hard and it was meant to be hard.
However, what the Democrats have not been able to gain at the voting booth they have chosen to win at the Supreme Court.

That is why the Supreme Court is everything to Liberals. Every new appointment to the Supreme Court that President Trump makes puts their agenda at risk. They know that they do not have the support of the necessary majorities of American voters to support and extend their progressive agenda. They do not want to follow the Constitution to get there. Our Founders wanted a clear consensus before we made radical changes to the rules that governed us. The Democrats simply don't want to wait and do the heavy lifting necessary to get what they want.

They may find out that was a bad strategy. What the Supreme Court gives it can also take away. The only sure way to change America is to change the Constitution. The Founders provided a way to do that. The Democrats thought they had found an easier way. However, the Supreme Court is not everything. The Constitution is everything.

If you want to know a major reason why the country is so divided right now look no further than what the Supreme Court has done to undermine our constitutional principles. It has moved the country before it was ready to move to support that progressive agenda.

For the Democrats, the stakes are even higher with Justice Kennedy's replacement than they were with the Gorsuch appointment. Gorsuch replaced Scalia which many saw as an even trade from a judicial balance perspective. Kennedy has been a swing vote on many issues meaning that his replacement with a more conservative jurist raises the stakes considerably. You can expect a contentious confirmation process no matter who Trump nominates.

Of course, none of this will compare to what we should expect when Ruth Bader Ginsburg (age 85) or another of the four liberal justices needs to be replaced. If the Democrats were crying when Kennedy submitted his resignation I hate to think what their state of mind will be if Trump would need to replace Ginsburg or one of the other liberals.

To give you a sense of how the stakes involving the confirmation of Supreme Court justices has changed over the last 30 years, look at this graphic on the "Votes for Supreme Court Justices". As you can see, there is not much bipartisanship left when it comes to confirming our justices.

Adam White, who is a Research Fellow at the Hoover Institute, puts it all in perspective.

I would say it differently.

The Supreme Court is not everything.

The Constitution is everything.

It is time that everyone recognized that.

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