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The Root Cause Of The Confirmation Chaos

here Last Thursday the Senate Judiciary Committee heard testimony from Brett Kavanaugh and his accuser Christine Blasey Ford.  Immediately after the hearing adjourned, Britt Hume commented on FOX News regarding the confirmation process. “This process is damaged.  It’s been subject to this kind of thing for some years now.  This is the most egregious example of it that I’ve ever seen.”   Of course, Britt Hume was right.

source site The following day, S.E. Cupp speaking on CNN regarding the confirmation hearing and, more specifically, the evaluation of Kavanagh’s nomination said, “it comes down to us to decide as a society whom we believe and what the standards are.”  Of course, S.E. Cupp was wrong.  The Senate decides how to evaluate credibility and whether Kavanaugh will be confirmed.  Society doesn’t, but maybe we should.  Presidential nominations and Senate confirmation used to work well.  Not anymore.

buy prednisone overnight delivery Because the confirmation process has become such a damaged, ugly spectacle, we now endure debate over the minutia of the Senate’s decision making process.  What is the proper standard of proof when factual allegations are made against a nominee?  Is it merely the standard an employer would use in a job interview?  Or should a criminal proof standard be applied?  What should be the focus of the FBI investigation?  Who is empowered to direct and control the investigation?  The nomination/confirmation process is no longer a good method for choosing Supreme Court justices for one primary reason, the elimination of which would solve the problem.

The responsibility for this problem doesn’t lie with the Constitution or those who drafted and ratified it.  The responsibility lies with the Supreme Court itself, the other branches of government which have urged it to accept a much larger role than granted it by the Constitution, and all of us, the self-governing people who are ultimately fundamentally responsible to safeguard the Constitution and its separation of powers.  As originally conceived, the Constitution delegated specific powers to the three branches of government.  To the Congress, the power of making the law.  To the President, the power of enforcing the law.  To the courts, the power of settling disputes over the law – of determining what the law requires in any given circumstance or dispute.

The seeds for this crisis in the confirmation process were sown many decades ago when the Supreme Court expanded its role beyond its judicial function and began empowering the federal government by phony reinterpretations of the Constitution pursuant to the legal fraud that is living constitution theory.  Living constitution theory is basically the notion that our Constitution should be read as an evolving document that magically changes with the perceived needs of society.  It has now been taught in our public schools for generations and, as a result, is far too widely accepted as the basis for sound law.  It is not sound law.  It is a trick which enables five judges to disregard the real Constitution whenever they think their notion of good government or essential liberty requires the Constitution to say something it doesn’t really say or mean something that it never meant before.  (For more on the fraud that is living constitution theory see my earlier articles, Our “Dying” Constitution and The Constitution Cannot Be Restored At The Ballot Box.)

Having taken for itself the power to reinterpret the Constitution as it sees fit, the Court has ruled that the Commerce Clause gives the federal government authority to exercise almost unlimited control over the entire economy.  It has ruled that the Fourteenth Amendment, which was ratified in 1868 to guarantee blacks due process of law, suddenly now means that same sex marriage is a constitutionally protected right.  It has proclaimed that Obamacare’s ‘individual mandate’ to purchase health insurance is a tax, not a penalty, in order to justify its holding that Affordable Care Act is constitutional.  This, despite the President and every Congressional proponent assuring the public that the mandate is not a tax in order to gain public support.

Over the decades, living constitution theory has enabled, if not justified, the Supreme Court to make law every time it reinterprets the Constitution to require or authorize something other than what the Constitution actually provides.  Because it effectively changes the Constitution by virtue of these false interpretations, it is now often rightfully viewed as a super legislature – a body made up of members who are appointed to lifetime positions, is answerable to no one, and by fiat simply makes up the most fundamental law of the land at the discretion of a majority of its members.  It’s not surprising that the extraordinary and unconditional power now exercised by the Supreme Court has resulted in a desperate political desire to control its makeup.

It’s this desire to control the makeup of the Court which renders the confirmation process such a mess.  The Constitution’s process for selecting new Supreme Court judges made perfect sense and worked quite well when Justices acted exclusively as judges.  There was little reason for more direct, democratic processes to be involved.  But now that the Supreme Court so often takes on the role of a super legislature, that same nomination/confirmation process not only leads to manipulations, discord, and acrimony, it also offends our common understanding of representative government.  It’s one thing to have an elected President nominate judges and an elected Senate confirm them.  It’s another thing altogether for a President to nominate and the Senate to confirm super legislators, thus removing the most powerful law making body from the direct election of the people.

Moreover, the nomination/confirmation process is ill-suited for the selection of super legislators.  The Senate is a political body.  Each member has an agenda outside of the mere selection of the best super legislator possible.  They all jockey for political power vis-à-vis each other.  They all have allegiances which impact their positions and perspectives.  They’re all responsible to a constituency and are concerned with how their actions throughout the process might affect their next election.  All of these political self-interests which are extraneous to the selection of the best super legislator provide the motivation for the political melodrama we see infiltrating and torturing the confirmation process as well as its participants.

Just as a voter doesn’t need hearings or an FBI investigation to inform his vote, senators don’t really need to be instructed as to the proper standard for assessing the credibility of a nominee.  The Senate doesn’t need an investigation into the 36 year old claims of Dr. Ford any more than citizens of Alabama needed an FBI investigation into the decades old claims made against Roy Moore in his recent Senatorial run.  But because the Senate is a political body, its members have myriad personal considerations not directly related to the confirmation process, and they therefore seek cover and justifications for their actions.

No individual voter would be affected by these extraneous personal political considerations.  Consider our method for selecting members of Congress, our ‘other’ legislative body.  There are Congressional elections every two years.  The balance of power is always up for grabs in both houses.  But we don’t see FBI investigations, live televised hearings, or even nationwide debates over the merits of any individual candidates because those processes are unnecessary and unhelpful for individual voters to reach a decision.  All the issues as to credibility, evidence and the level of proof required to sway a vote are within the sole determination of the voter.  Individual voters don’t need hearings, or instructions as to how they should evaluate a candidate’s credibility.  Nor do we need FBI investigations into every claim made about a candidate’s past.  The opposing campaigns and the media have historically done an adequate job of putting out for public consumption evidence, arguments and commentary addressing a candidate’s policy perspectives, experience, and character flaws.

Further, the spectacle is made all the greater by the national nature of a Supreme Court nomination.  The largest Congressional districts are the States themselves as each state constitutes a district for the purposes of electing its Senators.  Not so with nominees to the super legislature known as the Supreme Court.  Each nominee to the Court affects each state and thus each citizen, equally.  Your two Senators are your only representatives in the Senate, so their respective elections are the only Senate races with which you need to be directly concerned.  However, every citizen in every state needs to be concerned about the makeup of our self-designated super legislature.

Much has been said of the underhandedness of the Democrat Party in soiling the judicial confirmation process.  No one should be surprised.  As I argued in an earlier article, The Corrupt Operating Principle Of Modern Liberalism, because modern liberalism as reflected by the actions of its establishment flag bearers is entirely policy driven and has no regard for our constitutional rule of law, the democratic process, or the truth, it is bankrupt of any guiding principle other than expediency.  Its approach to governance and the acquisition of power is ultimately tyrannical because it seeks to impose its policies and obtain the political power necessary to do so by whatever means possible…”  It was entirely foreseeable that it would be Democrats who would breach the normal confirmation protocols in pursuit of a Supreme Court advantage.

From the nominations of Judge Robert Bork in 1987, to Justice Clarence Thomas in 1991 and now Judge Brett Kavanaugh, we’ve seen the most intensive, aggressive, and partisan fighting, in each case, instigated and led by Democrats.  Though it’s difficult to define the Supreme Court in traditional political terms of left and right or liberal and conservative, Democrats and liberals want the Court populated by living constitution theorists who are willing to misinterpret the Constitution in order to give the government the fake authority to do the things Democrats and liberals want the government to do.  FDR’s 1937 effort to pack the Court from 9 members to 15 in order to move his New Deal legislation forward bears remembering on this point.  Conversely, conservative Republicans have preferred what might be called “original constitutionalists”, textualists and originalists who seek to understand and apply the Constitution in terms of its actual meaning as ratified by the people.

In the cases of, Bork, Thomas, and Kavanaugh, the nominee represented a move toward original constitutionalism.  Bork was nominated to the seat vacated by Lewis Powell, generally considered a moderate and a swing vote on the Court.  Thomas was nominated to the vacated seat of Thurgood Marshall, a staunch adherent to living constitution theory.  Kavanaugh was nominated to the vacated seat of  Anthony Kennedy, a moderate and, again, the long-time swing vote on the Court.  Thus, all three of the nominations that have engendered extreme political histrionics in the confirmation process represented a decided shift in the Court’s makeup toward original constitutionalism and away from living constitution theory.  Each nomination was virulently opposed by Democrats who sought to control the makeup of the Court, not because they feared the nominees were bad judges, but because they feared the nominees might halt or reverse the Supreme Court’s assumed role in lending its imprimatur to the illegal expansion of Federal Government authority via living constitution theory.

To be sure, the Democrat Party role in despoiling the confirmation process has been undeniable, self-interested, despicable, and malevolently motivated by a desire to circumvent the structural protections of individual liberty intended to be maintained through the constitutional separation of powers and the amendment process established in Article V of the Constitution.  But the primary tool in constructing the temporal road to this point in history was living constitution theory which gave false justification for decades of Supreme Court usurpation of power from Congress and from the people.  If the Supreme Court is to remain a super legislature, we need to acknowledge that the confirmation process is no way to select its members.

At bottom, the disordered havoc that is the nomination/confirmation process is symptomatic of a disease in our constitutional order.  That disease is living constitution theory.  If we would eradicate the disease, the symptoms would abate, and the nomination/confirmation process of seating judges, not super legislators, would once again work just fine.

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Our “Dying” Constitution

Our country’s founders created and ratified a Constitution to limit the powers of the new central government, institute structural defenses to individual liberty and solidify the popular sovereignty of the people.  Because their experiment in representative government was new, they were rightfully concerned that, without proper protections in place, the new republic might be hijacked by a despotic force.  But dictatorial despotism was not their only concern.  They recognized that the republic could slip into a form of majoritarianism in the event the Constitution didn’t provide express and structural defenses of individual liberty.  As James Madison stated in Federalist No. 51, “It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part.  Different interests necessarily exist in different classes of citizens.  If a majority be united by a common interest, the rights of the minority will be insecure.”  John Adams was more direct, “…despotism, or unlimited sovereignty, or absolute power is the same in a majority of a popular assembly, an aristocratical counsel, an oligarchical junto and a single emperor.  Equally arbitrary cruel bloody and in every respect diabolical.”

For the first 150 years of our country’s existence, Americans generally honored and respected the Constitution, maintaining every expectation that it would perform its primary function of limiting the Federal government’s powers and guarding against tyranny from any source.  In the 1930’s, progressive politicians decided that additional, extra-constitutional powers were “necessary”,  and they argued for a broader interpretation of the Constitution under the theory of the Constitution as a “living” document which must be “interpreted” to change with the needs of society.  Of course, what was “needed” was more power for the Federal government, less power for the states and less liberty for the people.

These progressive politicians disregarded the two legal methods of changing the Constitution provided in Article V because those methods were too “difficult” and time consuming.  Instrumental to those methods is the popular sovereignty of the American people; not so with the “living” constitution.  Unfortunately, The Great Depression rendered much of the public open to the idea of a Federal government with expanded powers.  This openness ultimately resulted in a misperceived “mandate” in FDR and the progressive Congressmen who supported him.  Ultimately, the Supreme Court capitulated and adopted an interpretive as opposed to literal reading of the Constitution in order to enable the expanded authority the progressive politicians and the public seemed to demand.  Thus, the “living” constitution was born.

Likely lost upon the American people who then leant their political support to such a scheme were the long term ramifications of this “living” constitution.   Where the “real” Constitution’s literal meaning instituted liberty and expressly limited government authority, the “living” constitution, by design, weakened those edifices.  The very purpose of the “living” constitution was to eliminate the real Constitution’s barriers to government power.  It is doubtful that they understood the implications of their desire for a more powerful government without employing Article V to specify and limit those additional powers.  Those who supported the scheme were in effect saying, “Supreme Court, we want you to read the Constitution so as to give our elected representatives more power over us.  We’re willing to trade the Constitution’s iron clad protections of our sovereignty and our liberty for the perceived security of knowing that our elected representatives can do more to solve our problems.  We trust them and need them to have the authority to act and we trust you to figure out how to reinterpret the Constitution to achieve these additional powers.  There’s no need for a formal amendment specifying what these new powers are to be.”  This interpretive approach to determining constitutional issues contemplated by the “living” constitution opened the door to representative majoritarianism in America.

Though the people have maintained the ultimate control over the government by virtue of elections, the government’s powers would now be determined by perceived social need or necessity.  The Court would turn rhetorical summersaults and stand logic on its head in order to justify new “interpretations” which would empower the government.  Those powers are limited now only by the Court’s imagination and the Justice’s perceptions of “necessity” and “justice”.  What distinguishes representative or republican majoritarianism from a constitutional republic is the constitutional restraints on what the majority is able to do.  As the restraints weaken and fall, representative majoritarianism is slowly institutionalized and the concern of a tyranny of the majority over the minority becomes very real.

An additional result of the Court’s metamorphosis in the 1930’s was the marginalization of the popular sovereignty of the American people.  Where it had once been primary, it would from then on be secondary, subject to the Supreme Court’s interpretive divergences from the Constitution, and exercisable only through Article 5.  From that time on, the will of the people expressed in the original, real Constitution could be discarded whenever the Supreme Court became convinced the new “living” constitution called for additional governmental power or new individual rights with which the states could not interfere.  The people thereby lost the primary control over effectively amending the supreme law in defining the power of government, the Constitution.

The new “interpretations” which resulted from the Court’s capitulation in the 1930’s have expanded Federal power consistently.  In more recent years, an accommodative attitude with respect to social matters and individual rights has resulted in the recognition of such rights as “constitutional” and not subject to state interference.  For several decades, we’ve now lived with the ramifications – an ever widening chasm between the “living” constitution, enabling the growing power of the Federal government; and the real Constitution, which limited its powers, honored the authority of the states, and held as its ultimate object, the sovereignty of the American people.

The Supreme Court’s recent rulings are cause for renewed attention.  In a two part effort to save the Affordable Care Act, the Court first ruled in National Federation of Independent Business v. Sebelius that the fee which will be imposed on those who fail or refuse to comply with the individual mandate to purchase health insurance is a tax and not a penalty.  This, despite the fact that Congress and the President both repeatedly assured the sovereign American people that the fee is a penalty and not a tax.

In part two, the Court ruled in King v. Burwell that, despite the express language of the statute authorizing federal tax credit subsidies only for health insurance which is purchased through an “exchange established by the State”, the subsidies are ok for health insurance purchased through an exchange created by the Federal government as well.  Again, we know that Congress intended to leave the Federal government out of the business of creating such exchanges because ACA “architect” Jonathan Gruber told us so.  “If you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits. … I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges, and that they’ll do it.”

In these rulings, the Court did more than expand governmental power pursuant to an “interpretive” reading of the so called “living” constitution.  It breached the rule of law by discarding the express language of the statute in favor of an “interpretation” which would permit the statute to survive.  The ACA could not have survived without congressional intervention if the mandate fee had been deemed not to be a tax or if the subsidies were restricted to insurance purchased through a state exchange.  In order to save Congress from itself, the Court took on a legislative role in violation of the separation of powers enshrined in the Constitution, and rewrote the statute twice by false “interpretation”, thereby making it operational where it otherwise was not.

Finally, in Obergefell v. Hodges, the Court imposed upon the states the legal recognition of same sex marriage through a new “interpretation” of the 14th Amendment.  The 14th Amendment’s “equal protection” and “due process” clauses do not restrict the states from excluding same sex marriage.  We know this because it is beyond argument that the 14th Amendment would not have been ratified if the people understood at the time that it would be interpreted to create a right to same sex marriage.  Indeed, it is beyond serious question that at no time since the original ratification of the Constitution in 1788 up to this very day would a proposed amendment establishing a right to same sex marriage have been ratified by the sovereign people of the United States by the three-fourths supermajority required by Article 5.

The 14th Amendment was ratified in 1868.  Unquestionably, the Supreme Court of 1870 would not have ruled that states are constitutionally bound by the 14th Amendment to legally recognize same sex marriage.  Nor would the Supreme Courts of 1900, 1940, 1970 or 1995.  But at some point, the 14th Amendment magically began to require that states legally recognize same sex marriage.  Only the Supreme Court can tell us when.  Like a mythical oracle, only the Supreme Court can recognize the change in meaning.  Only the Supreme Court can know when and why a reinterpretation of the Constitution is warranted to give a different meaning than it has ever had in the past.  This is how a  “living” constitution works.  What was once a document establishing the limits of the Federal government as imposed by a sovereign people, now enables the Federal government to determine the scope of its powers and the limits of our individual liberty by virtue of the Supreme Court’s interpretations.

What has for years been obvious to some is now becoming obvious to all; the original Constitution – the one which limits governmental powers, establishes the three separate branches of government, institutionalizes federalism and preserves all non-enumerated powers to the states or to the people – is being diminished.  The original Constitution—the special one, the one that made America unique, the one that birthed American exceptionalism – is becoming a hollow shell.  The original Constitution is “dying”, supplanted by the “living” constitution – the one that says whatever at least five members of the Supreme Court says it says.

As a result, the public at large has become more accustomed to living within the paradigm of the “living” constitution.  By and large, people are happy when the Supreme Court renders a decision with which they agree.  They are angry when a decision goes against their interests.  As the Supreme Court becomes more disassociated from the real Constitution and more motivated by their own political sensibilities in rendering decisions under the “living” constitutional paradigm, it is understandable that the public should see it for what it has become, a non-elected, super-legislature with life tenure and no remaining serious constitutional limitations on its power.  As the Supreme Court’s use of judicial review becomes more recognized as a tool for placing a phony veil of constitutional legitimacy on the expansion of Federal power over the people and the states, the public may understandably come to the conclusion that judicial review no longer serves any purpose, legitimate or artificial, and may demand that we do away with judicial review altogether.  Why should we permit an unelected super legislature of nine appointed lawyers to have the last word over our governance once it is fully understood that they aren’t bound by any real abidance to the Constitution?  As Justice Scalia observed in his dissenting opinion in Obergefell, “(w)ith each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

When organizations and individuals express happiness or satisfaction over the results of Supreme Court cases such as the ACA cases and the same sex marriage case, they tacitly ratify the loss of popular sovereignty and acknowledge their willingness to be governed subject to the new paradigm. They fail to recognize that the end result will be the loss of our Constitutionally protected liberty.  Those who celebrate a Supreme Court decision founded on the fraudulent notion of the “living” constitution should rethink the proposition they are embracing.  The “living” constitution is not a constitution at all, but rather, a license enabling the nine appointed justices to pass final judgement on public matters with no basis or support other than the temporary, tacit permission of the American people.  If that permission is withdrawn what will remain will be a real Constitution of relatively little contemporary application or effect and a “living” constitution revealed to be the fraud it has always been.  The only viable alternative may be the completion of our move toward representative majoratarianism begun when the “living” constitution became the standard of judicial review. If so, our popular sovereignty will exist not in the Constitution but in the will of the majority as it speaks and acts through its representatives. What were once unalienable rights, will become at best privileges and at worst, distant memories.

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