Perspectives: Putting the Supreme Court nomination – and the institution itself – into perspective

U.S. Supreme Court Building stock image | Photo courtesy of Pixabay, St. George News

OPINION — To say that there is intense interest in the president’s Supreme Court nominees is an understatement.

In today’s cultural climate of political friction and lust for dominion over others, that’s not exactly a surprise. What’s interesting is how the Supreme Court has become a key focal point over the past few generations of how political power is exercised in America.

Each appointment is accompanied by prophesies of national doom or salvation, depending upon the political leanings of the nominee. Few think to ask the question of whether the framers of our system of government intended for our political fate to hang on the opinions of five unelected individuals.

In light of our recent celebration of how this nation achieved its independence, it’s a question worth revisiting.

The federal system of government that was called into existence by the Constitution was created to be a servant of the people, as noted in the preamble. It was not intended to be an all-powerful national government with an unchecked ability to consolidate power as it desired.

Modern Americans have forgotten that federal and national government are not the same thing.

James Madison made this clear in Federalist #39, where he distinguishes between a federal and national government at least six times. Under a federal system, the national government was subservient to the states with the exception of a few carefully enumerated areas of common interest where power was delegated to it by the states.

The founders understood that continuous consolidation of power in the hands of a centralized government was a recipe for tyranny. As they stated in the Declaration of Independence, for liberty to exist, a just government requires the consent of the governed.

For this reason, they created a system of vertical checks against consolidation of power by distributing it between the federal, state and local levels. They also incorporated horizontal separation between the three branches of the federal government with corresponding checks and balances.

Judicial review is mentioned nowhere in the Constitution itself, although Alexander Hamilton in Federalist #78 explained that its purpose was to prevent Congress from superseding the Constitution – and the abiding will of the people – simply by passing laws. He believed the threat of tyranny from the federal courts was minimal.

What happened instead was one branch of the federal government assumed a power not expressly given to it by the Constitution and stated that it would act as a check on the other branches. Following the Marbury v. Madison ruling, judicial review ceased to be a check on the national government as a whole, as it made liberty take a backseat to the court’s rules.

Paul Rosenberg correctly identifies where the primary responsibility for checking federal power should reside:

The original design of the republic empowered the states to act as checks on the national government. This was the primary purpose of the federal structure. Without it, the national government has no check on its expansion and use of power. Thus it would seem that the states should be the interpreters of the Constitution – after all, it was they who created it.

The temptation for mischief was foreseen by anti-federalists who warned that “the judges will be interested to extend the powers of the courts, and to construe the Constitution, as much as possible, in such a way as to favor it.”

Time has show that the anti-federalists were correct in their skepticism about whether the consolidationists would abide by the clearly enumerated limits of the Constitution.

With the Supreme Court usurping powers not given to it, the Constitution became a document that could be twisted to mean whatever a majority of five black-robed justices wanted it to mean.

You don’t have to be a cynic to recognize how our judicial system somehow manages to drum up enough legal sophistry to magically discover that the Constitution supports whatever they want. Under this standard, the consent of the governed is no longer necessary.

Tom Mullen has written a brilliant essay explaining how the Supreme Court destroys the consent of the governed. He draws a clear distinction between the Constitution, which enumerates the powers the people have consented for government to exercise, and voting, which simply decides who will exercise the powers granted.

Mullen notes:

Here’s a useful rule of thumb. If it takes nine judges dozens of pages of legalese to explain how the Constitution grants a power in question to the federal government, then we should assume the power isn’t there. If there is any question at all, an amendment to the Constitution should be offered to determine if the people really do consent.

Instead of getting wrapped around the axle over which judicial personality will be misusing powers he or she was never given, let’s reconsider whether those powers are actually theirs to exercise in the first place.

Bryan Hyde is an opinion columnist specializing in current events and liberty viewed through what he calls the lens of common sense. The opinions stated in this article are his own and may not be representative of St. George News.

Email: bryanh@stgnews.com

Twitter: @youcancallmebry

Copyright St. George News, SaintGeorgeUtah.com LLC, 2018, all rights reserved.

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28 Comments

  • NickDanger July 9, 2018 at 6:16 pm

    Well-said as usual, Bryan, and difficult to argue against.

    HOWEVER, in my capacity as a conservative, I can’t help but feel a little happy about the fact that we are about to have an invincible conservative majority in the SCOTUS.

    Were it the other way around, I’d be motivated to action. But in this country – in this era of open corruption and open contempt for the will of the people, I’m content to get what works in my own self-interest. Kinda sad that it has to be this way.

  • bikeandfish July 9, 2018 at 8:16 pm

    And he pick is a partisan who believes in a largely unfettered executive with minimal legal restraint. Kavanaugh’s nomination is a direct threat to independent counsels and holding the President accountable to law. Every president has expanded the power of the Executive in some fashion but the “unitary executive theory” is that self-interest on steroids.

    American citizens should fear an unrestrained executive branch if they care about liberty.

    • John July 9, 2018 at 8:56 pm

      clueless and long winded and WRONG as usual…Happy meltdown!!!

    • John July 9, 2018 at 9:03 pm

      How is a strict constitutionalist a bad thing? Happy meltdown…. please keep your inane reply under 20 words.

      • bikeandfish July 9, 2018 at 9:33 pm

        Do you know what “unitary executive theory” even is, John? Because its not in line with “strict Constitutionalism”.

        • IPFreely July 9, 2018 at 9:45 pm

          Good on the words, bad on the sense. Keep cryin Libby we need the moisture

          • John July 9, 2018 at 10:07 pm

            The only degree B&F possesses is her deodorant.

          • bikeandfish July 9, 2018 at 10:30 pm

            At least you don’t pretend to even care about anything meaningful.

        • John July 10, 2018 at 8:20 am

          Why can you never stay on the subject? Why are you trying to guess how a judge may rule in fantasy world? Why do you spout the latest libtard MSM talking points which are always inaccurate and irrelevant? Because you’re the pompous blowhard “know it all” who can’t help herself! That’s why! In other words, I am calling your BS what it is, BS !

      • John July 9, 2018 at 9:51 pm

        Like I said, You are wrong… he’s a strict constitutionalist…HAPPY MELTDOWN BLOWHARD!

        .

        • bikeandfish July 9, 2018 at 10:29 pm

          Good job regurgitating your talking points.

          Can you show me where in the Constitution it says the President can’t be prosecuted beyond Impeachment? Because that is the theory Kavanaugh promotes.

          Interesting given Mueller’s criminal investigation and all.

          • John July 9, 2018 at 11:41 pm

            There you go, making stuff up again. Another pointless rabbit trail. Have a happy meltdown you insignificant twit!

          • John July 9, 2018 at 11:47 pm

            Why don’t you show us where it does? Don’t forget to consult your magic deodorant! Simply Put , he is a strict constitutionalist and you are a MSM carrot chasing donkey. and as usual WRONG!

          • bikeandfish July 10, 2018 at 11:06 am

            I’ve tried to reply twice since last night but its not posting. Odd as I am getting a duplicate post warning.

    • IPFreely July 9, 2018 at 9:19 pm

      Blah blah blah

    • RadRabbit July 9, 2018 at 10:29 pm

      I’m sure your a big Ginsburg fan and she’s the biggest political hack there is thankfully she’s about done maybe Mike Lee can fill her spot.

    • No Filter July 10, 2018 at 8:45 am

      I don’t have any reason not to like this choice besides the fact that Trump chose him. Now this is because I just don’t want to do the research about him. I believe we should wait until the election is over to decide these major decisions to see how the people vote. No one knows for sure whether it will be a blue wave or just another low turn out election with no big changes. On the outside it sure does seem like Trump is only playing the game of what benefits me and my friends rather than what do my voters want. I only want a few simple things, I want to stop hearing about Hilary Clinton, the election was 2 years ago move on, I want Robert Mueller to finish his investigation, because even if Trump doesn’t get impeached, we need to hear the facts, and lastly I want to stop hearing about Trump rallies. Lets spend more time “making America great again” and less time puffing up his ego. The world is laughing at us and I don’t care who is in power democrats or republicans, I just want the respect of the world that we had before Trump became president.

      • John July 10, 2018 at 10:33 am

        You are on the right track, but clean that clogged filter.. It’s happening , the crying will begin because the vote will be before the election and Mueller’s investigation will end in a whimper. Facts are Facts and apparently you refuse to pay any attention to them. #WalkAway !!!

        • No Filter July 10, 2018 at 1:11 pm

          I will never walkaway, I am not abandoning my beliefs, I will use my voice for better things than the comments section of a online newspaper that has less followers than a Kardashian, (no offense STGNews). I will use my vote in November. As far as arguing with the likes of you john, I am done. It was fun trolling you, but I have grown tired of these childish games. You don’t matter to anyone and I have better things to do with my time.

          • comments July 10, 2018 at 3:48 pm

            oh filters, john is like a talking piece of excrement trapped in a sewer. it’s not to be taken seriously. it smells terrible but is harmless. don’t let it scare you away. 😉

          • John July 10, 2018 at 7:07 pm

            Hey cloggy, I guess you will be a clueless snowflake PUTZ the rest of your life then..hahahahahahahahaha!

          • John July 10, 2018 at 8:12 pm

            Comments, why don’t you take a long walk off a short pier you worthless sack of shells? Your’e a loser and nobody cares hahahahahahahahahahahaha! you are just a grumpy old third rate unemployed landscaper who has to use the free internet at mcdonalds because you got no money and no home. It’s nice of mcdonalds to let you live behind their dumpster!

      • bikeandfish July 10, 2018 at 11:05 am

        He’s an average conservative judge other than his views on executive power. He’ll likely get through the Senate unless somr unexpected statements or history comes out. The moderate Republicans being noted won’t risk their seats on dissenting over expansive executive power, as both parties honestly support it when they are in power.

        Clearly not a “strict Constitutionalist” but pretty par for the course when it comes to a Republican nomination. But Trump is also obviously fine with partisanship and the Swamp with Kavanaugh given his exuberant role with Ken Starr.

        • John July 10, 2018 at 12:05 pm

          #Walkaway .. liberal panic attacks and media led pointless protests are making the news.. The left is totally unhinged. You will still be able to murder your babies, you will still be able to have your marriage, You will still be able to keep your AR15’s. The Supreme Court does not MAKE laws or rewrite laws. the Congress does that..

  • bikeandfish July 10, 2018 at 9:19 am

    Hey John.

    Its fun that I’m more informed about Kavanaugh’s judicial history than such a triggered diehard Trump fan and all but his words are well-documented:

    http://www.minnesotalawreview.org/wp-content/uploads/2012/01/Kavanaugh_MLR.pdf

    One of the principle partisan attack dogs of the Monica Lewinsky/Kenneth Star investigation believes, without any sense of irony, that:

    ” we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions. The President’s job is difficult enough as is.”

    Nor does his lenient view of executive war powers seem very “strict Constitutionalist” either. But that would take getting beyond your sycophant talking points and actually digging into his rulings and words here.

    There are alot of reasons to like Kavanaugh (his dissent in DC ban regarding support of legal use as established by other precedent) but a “strict Constitutionalist” he is not.

  • bikeandfish July 10, 2018 at 9:52 pm

    John and the other Trump sycophants clearly don’t care as much about “strict Constitutionalism” as they do a partisan win.

    Kavanaugh has forwarded an extreu aggressive idea to limit “burdens” on the POTUS:

    “we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions. The President’s job is difficult enough as is.”

    This an extension and argument for what John Yoo, of Bush Jrs greatest hits, considered the “unitary executive theory”. This is clearly not “strict Constitutionalism” nor remotely consistent with the founder’s concerns with a unchecked authoritarian central power. Its an ideological argument in favor of further expanding the privileges of the executive, beyond outlined in the Constitution.

    And its all pretty rich coming from Ken Starr’s legal hitman.

    And that doesn’t even deal with his views on unilateral executive war powers.

    Welcome to the new Conservative. Really just the Conservative since the 80s just bolder about deviating from anything resembling Constitutionalism.

    • John July 11, 2018 at 12:19 pm

      Have a happy meltdown, pompous loudmouth crybaby bogusandfake.. you are wrong again as usual! Take your fantasy based rabbit trails elsewhere loser! #WalkAway..You are a perfect example of one who totally trusts the MSM.. You fact check nothing..just like your goddess rachel madcow..

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