by Diane Rufino, Sept. 22, 2018
The United States is a constitutional republic. It is not a democracy, as most people believe. A “republic” is a form of government in which supreme power is held by the people and their elected representatives, and which has an elected president rather than a monarch. It is a “constitutional” republic because it is the constitution which outlines what powers the government has and does not have. It is “constitutional” for another important reason; the constitution protects important individual rights that belong to ALL persons, whether those persons belong to a minority group or whether they happen to be of the majority. The implications of this are critical for our country. The majority may be successful in electing the representatives of their choice and may try to push the agenda that serves them best, but they can never target minority groups to burden their rights, liberties, privileges, or property.
As you can see, the Constitution is the cornerstone of our society; it forms the very foundation of our government system and the foundation of our Rule of Law. It defines the division of government power between the federal government and the states, and then the state and local governments have their authority.
The Constitution is the People’s document. How can that be when I just explained that how it defines the powers of government? It is the People’s document because above all else, it sets limits on the power and the reach of government on the rights and in the lives of Americans. It establishes boundaries on government. Individual Liberty is greatest when government is most properly restrained.
After all, Individual Liberty is the great ideal on which our country was founded.
The problem with this ideal though, is in the diminishing role the Constitution holds and the transitory nature that too many judges attribute to it (“a living, breathing document”). The Constitution can’t mean what it what it was meant to mean… That’s too archaic. It is a product of a different time, with different values. The Constitution must mean what judges and justices infer it means, according to the changing times and values. This is the argument of liberal and progressive judges.
To compound this problem further is the fact that the federal government now holds a monopoly over the meaning and intent of the Constitution. It can legislate as it wishes; it can enforce as it wishes, and god forbid either branch is challenged, well then the federal courts will usually support them. The federal judiciary is the branch which has given itself the supreme power to interpret the Constitution and to require all states and localities to abide by its opinions, even when that opinion is delivered by a single judge, by 2 members of a 3-member panel of judges, or by a 5-4 split on the Supreme Court. (The point I’m making is that often an “opinion” is the result of a single judge). As the name implies, the federal judiciary is a branch of the federal government. It is not an impartial tribunal for the various parties to a suit, including the States, the Church, individuals, minority groups, etc. It is a tribunal whose members are political appointees nominated by US presidents and confirmed by the political members of the US Senate. They are creatures of the federal government, beholden first and foremost to the system that put them on the seat of the highest courts of the land.
Does anyone really believe that, in their opinions, the federal courts are not going to tend to side with the federal government?
The truth is that the federal government is virtually free to assume any and all powers it wants or thinks it needs; conversely, it is also free to ignore powers it wants to ignore. And we’ve certainly seen this trend. Over the years, and it began almost immediately (in 1803), there has been a constant and steady transfer of government power from the States and from the People to the federal government. The government, once of limited powers, has now swelled to a government of consolidated and unlimited power.
To make matters even worse, the federal judiciary has become a third political branch, making the monopoly completely political in nature. Politics, as we know, invites aggression and division. It is not a unifying force but one of division.
The federal courts have become political, rather than apolitical, which is what they were intended to be. Interpretation of the Constitution should be, and MUST ALWAYS BE, free from politics. Interpretation is really simple; its black and white, and rarely involves shades of gray. Those of us who have been involved in the reading of a will or navigating the fine print of a credit card, or even re-negotiating the terms of a contract, understand what interpretation is all about. The terms speak for themselves. The provisions, including how they are written, with commas, semi-commas, and sub-paragraphs, speak to the intent.
In short, contract law governs the role of a judge when it comes to the interpretation of the Constitution; the document is interpreted according to its plain words, the meaning of those words at the time they were written and agreed upon, and any contemporaneous documents or writings that help explain the Constitution’s meaning and intent.
The contemporaneous documents that might be (and should be) included in a judge’s exercise of interpretation include The Federalist Papers (because they were written to explain the Constitution and because they were written, in large part, by James Madison, the primary author of the Constitution and Alexander Hamilton, who also attended the Convention in 1787, they were assurances given to the States on which they relied in their ratifying conventions) and any debates in the Ratifying Conventions (because those “understandings” became part of the “meeting of the minds” on which the States agreed to adopt the Constitution). There is NO role of a federal judge to interpret the Constitution applying modern values or norms or to interpret it through the lens of a political agenda.
And yet they do. In fact, there is a whole population of judges who are referred to as “progressive” or “liberal” judges and who hold the opinion that the US Constitution is not firm in meaning but rather is a “living, breathing document” to be molded and transformed by smart lawyers (considering themselves, of course, to be far smarter than we ordinary citizens) according to the dictates of politics and evolving social norms and values. It is those types of lawyers, unfortunately, who have the power and authority to define those social norms and values. As we all know, social norms and values are political.
The Constitution is a social compact, which is important to understand. A social compact is an agreement among the members of a society on how they will organize and govern themselves. They organize and form a common government in order to establish order, to share common services, to cooperate for mutual benefit, and for protection. For example, a typical social compact requires some sacrificing of individual freedom for state protection. In other words, in an ordered society, individuals can’t go around taking the law into their own hands. The people of our founding generation (the people of the original states), acting through duly-organized state conventions, ratified the Constitution. In doing so, the States joined themselves in a federated union, agreeing to transfer some of their sovereign government powers to the common (or federal) government and agreeing to abide by its governance. So, it is the States which are the parties to the Constitution. The Constitution provides a mechanism – the only legal mechanism – by which those who are parties to its agreement (ie, the States) can amend it in order to bring it up to date with current norms and values, and that is the amendment process, which is outlined in Article V. The options (two of them) are the only way the Constitution can legally be “updated” to reflect modern times. And that makes sense because again, the Constitution is a social compact and it is the People, in their state conventions, who make and amend that compact. It is THEY who determine how THEY want their society to be organized and governed and by which values and principles. It is not the government to make that determination. Government has no such power; rather it is tasked to strictly interpret the Constitution. It is tasked to preserve the document that the People have drafted and adopted for their governance. Government has no power to amend it by back channels such as the federal bench or by policy or executive order because the government is not a party to the compact but rather, its creation.
Things are becoming worse and worse for our federal courts; they are increasingly becoming more political and becoming more aggressive in their roles. The reason they are becoming politicized is because liberals and progressives (Democrats) are increasingly turning to the federal courts to seek the progress that they cannot achieve through the ordinary democratic process (elections and lawmaking).
That is why what we saw a few weeks ago on TV with the Senate Judiciary Committee questioning Judge Brett Kavanaugh troubled us so thoroughly. The Confirmation Hearing was an embarrassing, a humiliating, political circus. Democratic Senators not only organized and staged a despicable protest of Kavanaugh – carried out by numerous androgynous-looking individuals who screamed and essentially carried on like petulant children – but they engaged in outright character assassination. Democrats were proud of their conduct. Senator Lindsey Graham articulated their conduct best when he told them (paraphrasing): “You were never going to vote for him. Why don’t you just do what you were going to instead of making a mockery of this hearing and doing everything you can to destroy the character of this fine man, and in front of his wife and children no less. Just vote NO, like you intended to.”
The Democrats want nothing more than to get promises from Kavanaugh that he will use his position as a Supreme Court justice to further their agenda to get rid of President Trump. They seek nothing more than to co-opt a single seat on the bench of the highest court in the land to undo the 2016 election – the legal and constitutional election by the people. The Democrats, in every public hearing, in every instance before a microphone, in every interview, with every national crisis, and with every act of presidential power taken by President Trump, use the occasion to condemn, criticize, mock, and humiliate him… to misconstrue his actions, to accuse him of acting erratically, and to call for his impeachment.
They are a bunch of low-lives who hold no moral ground to accuse anyone of being imperfect. How dare they impugn the character of someone like Brett Kavanaugh when they are, collectively, nothing more than a bunch of tax cheats, law-breakers, criminal solicitors, race baiters, hustlers, sexual predators, and constitutional illiterates. If Democrats are going to turn every confirmation of a Republican candidate into a very public “high-tech lynching” (a term used by Clarence Thomas in his own confirmation hearing), then I agree with those who argue that confirmation hearings should be kept closed and out of the eyes and ears of the American people. No one needs to be reminded of how low and vile and despicable and unconscionable and dishonest and uncivil our Democratic lawmakers have become.
I found Kavanaugh’s Senate Confirmation hearings to be absolutely sickening. Now, more than ever, I believe Democrats to be the enemy of our country and nothing more than parasites and a disease (a plague) on our good and honorable nation. They do NOT represent the values and conduct of the overwhelming majority of Americans. Most Americans conduct themselves mindful that they reflect upon the character and morality and decency of our great land.
While we are on this subject, let’s not forget WHY Democrats conduct themselves as they do. Personally, I believe it’s because they are acting out of pure desperation and futility. They are a party of a derailed and un-American message; they are losing resonance with the American citizen (yet picking up new followers — illegals, foreigners, social misfits, transgenders, psychotics, financially-dependent sloths, ignoranuses…..) We are witnessing the desperate acts of the leaders of a desperate political party.
Let’s not forget WHY they follow the same sordid, sickening template every single time, which is to spread lies about Republican candidates and nominees and to make up allegations of sexual harassment …. Because it works. The politics of PERSONAL DESTRUCTION is something the Democrats have become good at. The politics of spreading lies and instilling fear (including a return to Jim Crow and a return to back-alley abortions) is something Democrats are good at. Look what it did to Judge Roy Moore. (You don’t hear anything any more about his accuser). Look what happened to Mitt Romney in 2012 when he ran for president. During that election, Harry Reid accused Mitt Romney, FALSELY, of not paying his taxes in over 10 years. He knew it wasn’t true. After the election, when confronted about his lie and whether he felt remorse for stooping so low, he said no. His response epitomized what the Democratic Party’s politics of personal destruction would become: “It worked didn’t it? He lost, didn’t he?”
We cannot fall for their immoral, unethical tricks. They detest the one thing that matters most to a conservative – Truth. They will twist it and ignore it all day, all night, all week-end long, and twice on Sunday, if they think it will advance their agenda. They know no scruples and they know no decency. Again, they are parasites. They are our modern-day plague.
Senator Lindsey Graham during the Senate Confirmation Hearings – https://www.youtube.com/watch?v=WunFJhgKwig