SCOTUS

A Necropsy of American Government

Let us consider the proper role of each branch of government, and how it was envisioned, versus how it is currently operating. First, we take the Judiciary, famously said to be the “least dangerous branch” by Alexander Hamilton on account of its inherent inability to enforce its own decrees. The only court outlined in our Constitution is the Supreme Court. All other inferior courts are a creation of legislation.

It is the charge of the courts to uphold the protections on individual sovereignty and liberty both outlined, and not outlined within the Constitution, and Bill of Rights, as well as to enforce the specific prescriptions for federal government found therein through the offering of expert, educated opinion on founding doctrine. Here there is, obviously, an implied ability to “interpret” law, and to hold legislation against the Constitution to establish legitimacy in American virtue. Yet, there is likewise an assertion of “coequality” among the three branches that must rule out the court having sole authority in this regard. It was understood that all laws must be plainly stated and written such that a person of average intellect could understand and abide.

Early on in our American history, in Marbury vs. Madison, the court proved Hamilton wrong in a decision rendered by the court rendering the court the sole arbiter of the Constitution through the principle of absolute judicial review. This power grab went insufficiently challenged by the Executive – despite the quote “Marshall made his decision, now let him enforce it,” being attributed to Jackson – and Legislative branches, and rendered, for practical purposes, our nation an oligarchy of a handful of lawyers in robes.

Later SCOTUS would violate the very principle of federalism with their decisions of the New Deal era in dropping “direct effect,” as applicable to the Commerce Clause, and replacing it with a Progressive six degrees of Kevin Bacon to find that virtually every single thing happening anywhere in this nation “effects” interstate commerce and is therefore within federal purview. This opened the door to the Progressive dream of a bureaucratic state of experts that would usher in the perfected State, and ultimate utopian vision. Progressives viewed this American effort as a sister project to Mussolini’s Fascism.

In this early Progressive era, the court would begin shifting the entirety of the Constitution to the doctrine of a living document that could be reinterpreted at will to meet the needs of the Progressives. This had the effect of removing the most basic meaning from words of the document and replacing it with whatever was convenient and popular at the time within the movement. As it now stands our Supreme Court functions much like the Oracles of Sparta, looking into their tea leaves to find a path to a desired outcome (the Utopian State), and modifying meaning to fit that vision. It happens that they are also overwhelmingly religiously oriented towards Progressivism, with even most of the conservatives being hostage to the paramoral assertions of leftist dogma.

What we’ve lost in summary:

·       Brief, limited laws in plain language

·       Few criminal laws

·       Coequality of branches

·       Fidelity to the plain language of the Constitution and Bill of rights

·       The meaning of the Constitution and Bill of Rights