A brief essay for July 4, 2023
A brief essay for July 4, 2023
– by New Deal democrat
Selections from Brutus, the anti-federalist who argued against the Constitution’s institution of the Supreme Court:
“When great and extraordinary powers are vested in any man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it.
“[T]hose who are to be vested with [the judicial power in the US Constitution], are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them …
“[Indeed,] the judges under this constitution will control the legislature, for the supreme court are authorized in the last resort, to determine what is the extent of the powers of the Congress….
“[In] their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution.
“[T]hey will be interested in using this latitude of interpretation. Every body of men invested with office are tenacious of power; … this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. ….
“This power in the judicial, will enable them to mould the government, into almost any shape they please.”
Mark A. Lemley, “The Imperial Supreme Court,” Harvard Law Review, 2022:
“Armed with a new, nearly bulletproof majority, conservative Justices on the Court have embarked on a radical restructuring of American law across a range of fields and disciplines. Unlike previous shifts in the Court, this one isn’t marked by debates over federal versus state power, or congressional versus judicial power, or judicial activism versus restraint. Nor is it marked by the triumph of one form of constitutional interpretation over another. On each of those axes, the Court’s recent opinions point in radically different directions. The Court has taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts.…
“[T]he Court has begun to implement the policy preferences of its conservative majority in a new and troubling way: by simultaneously stripping power from every political entity except the Supreme Court itself. The Court of late gets its way, not by giving power to an entity whose political predilections are aligned with the Justices’ own, but by undercutting the ability of any entity to do something the Justices don’t like. We are in the era of the imperial Supreme Court.”
Selections from the Declaration of Independence:
“A[n authority] whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
“[A]ll men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.“
Strange, as what I believe is the case the current court has been most challenged over seems quite opposite the major thesis expressed here. In Dobbs, the court as much as said that when the Roe court effectively made abortion law a creature of federal courts, they got it wrong. The court unquestionably diminished their specific and relative authority. Disagree with Dobbs all you wish, but don’t argue that it was the Dobbs court that was carving out new areas to exercise their authority when that fits the Roe court a lot better.
Eric
except for this: i have paid careful attention to human thinking for most of my life. i am not surprised that from the same facts different people can reach different conclusions….and fight to the death to force them on other people. The Framers knew this, and they knew that the people need a government. Their solution was to design a Constitution of checks and balances.
They did not, and no human mind can, anticipate everything that might come up, and they did not think to write explicitly into the Constitution every “Right” that humans need in order to be protected from the “will of the majority” or any other form of tyranny that might arise.
The writers of Roe discovered almost in plain language, and certainly in common sense, a right to “privacy”, under which they decided a woman’s right to abortion could not be abrogated by ANY law of any government, state, local, or federal. This was consistent with the whole Idea of America as the Land of the Free. It is also what every person demands for himself, and is eager to take away from others.
Now comes Eric to tell us, “no, this was the Court seizing power and taking it away from the States, the Federal Legislature, and “the people.” Well, as far as I have ever been able to see, that’s the way it works, has always worked. In order to protect my freedom I have to take away your freedom to harm me. Reasonable people can understand this….we create our own freedom by granting freedom to others. I think it’s a joke that Republicans, especially the MAGAhats, run around demanding freedom to cough on their neighbors, but are perfectly willing to call for the death penalty for people who are trying to protect their own freedom.
As I remember “States rights” used to mean the right of white people to lynch black people.
We had to take that particulare States right away from them. And we haven’t heard the end of it yet.
The abortion problem is particularly difficult because some people sincerely believe that abortion is murder. I can only offer those people the same advice that Jesus gave: “mind your own business.” I might change my mind if babies were being thown into the fire to appease Baal while demanding their religious freedom. I think the Roberts Court may find a reason to agree with them.
As I remember “States rights” used to mean the right of white people to lynch black people.
[ A hideous comment. Shameful, just shameful. ]
ltr
i might be sad that you find my words shameful if i had any reason to think you understand them, or much of anything. you sound like a primitive bot, having only that one comment to make in response to everything you can’t understand because you are only a machine.
A simple solution:
We have to stop doing what we’re doing. It isn’t working
The Roe v. Wade decision was implicitly about the right of women to make their own reproductive decisions taking precedence over the rights of the unborn, so to speak.
Liberals accepted this and agreed with it. Conservatives did not. Sam Alito figured how what it would take to void the Roe decision and his plan was implemented. End of story. For now.
Sort of. It is now strictly up to the states, and in the Blue states Roe still rules. Next step for conservatives is an outright federal ban, which they may accomplish.
well, somewhat like prohibition we may see organized crime built around supplying abortion services hopefully no machine guns will have to be used.
of course once we have created a market for organized crime, we will have to fight the criminals. because they are criminals, you know.
it’s wonderful what you can accomplish by enforcing morality on the population.
i could have understood the “killing babies” argument, but now that they are after contraception as well….
oh, i see…honoring American traditions since 1690.
The SC majority is Roman Catholic and they tend to follow RC tenets.
The evangelicals appear to agree with them (e.g. Mike Pence).