In December 2014, The Supreme Court heard arguments in the case Heien v. North Carolina. You can click on the link to read the entirety of the case if interested, but I’ll give you fairly brief synopsis here.
In 2010, a man named Maynor Vasquez was pulled over by police for having one of his two brake lights inoperative. Police observed his friend, Nicholas Heien sleeping in the back seat of the car. Thinking this behavior seemed a little odd, police fairly asked if they could search the car, and were given permission to do so.
Upon the search, they discovered 54 grams of cocaine in the vehicle, then arrested and convicted Heien of two counts of trafficking, presumably due to the amount larger than one person’s normal usage.
Heien’s lawyer challenged the traffic stop as North Carolina law only requires you have a working brake light, not both of them. As such, council argued the police stopping Vasquez and Heien constituted an illegal stop, and the search was therefore the proverbial “fruit of the poisonous tree,” and should have been thrown out.
Eventually, certiorari was granted, and SCOTUS heard the case in 2014. The court ruled against Heien in an 8:1 decision—Sotomayor being the only dissenter.
During oral arguments, Sotomayor asked the petitioner:
(You can click below for the entire oral arguments transcript)
It’s fairly common knowledge, that SCOTUS at that time was comprised of what most considered five right-leaning justices, and four left-leaning. Sotomayor being one of the left—as she was appointed by Obama.
The issue at hand was whether Heien’s Constitutional rights were violated by a search under the Fourth Amendment which reads:
“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
While it is often believed that the left-leaning justices don’t often seem too concerned with the Constitution, if you listen to oral arguments long enough, you start to see both sides indeed heavily use the constitution for the basis of their arguments.
What’s often the case however, is that some are absolutists, and use the constitution strictly as it’s written.
However, other justices try to interpret what was intended when the Constitution or its amendments were written, instead of interpreting it solely by its verbiage—referring to the Constitution as a living document. Most notably, former Chief Justice William Rehnquist, who wrote this piece explaining his ideals.
This “Living Document” idea also means that they often try to modernize the Constitution in such a way as to essentially say, “If the framers knew what we know today, this is what they’d have written or done.”
Scalia (and I agree wholeheartedly) would argue that it is for congress to rewrite the Constitution through the amendment process, and that the “Living Constitution” concept is nothing less than legislating from the bench—blurring the lines of the separation of powers intended by creating the Judicial, Legislative, and Executive branches.
But nonetheless, Justice Sotomayor’s lone dissent, was clearly the only decision made with the Constitution in mind as written, almost stunningly not echoed by the late Justice Scalia and other conservative justices.
In today’s highly politicized society, we often wish to assume that partisan’s, including justices, are always on the side of their party, but every once in a while, you will find an ally in the most unlikely places, and on this particular issue, the only ally to liberty was Justice Sotomayor, recognizing that you cannot allow police to search someone’s car under a false pretense, and then allow prosecution to proceed accordingly.
I’m often pretty outspoken in my disdain for any politician who is consistently on the wrong side of liberty, but I’ve always said I worship ideals, not people. I just give people credit where it’s due, and attack when I believe it’s warranted. On this day, Justice Sotomayor was right, and she should be commended for it.
Unless you avoid the news at all costs, you’re fully aware of the shootings by police, killing two black citizens, Alton Sterling and Philano Castile, both under highly questionable circumstances.
Then Army reservist/Afghan war veteran Micah Xavier Johnson, so enraged by such shootings, murdered several police officers in Dallas in retaliation.
There can be no doubt, that tensions between the governed and the government are at levels that are bordering the animosity that triggered us to war for independence against Great Britain 240 years ago. But how did we get here, and how do we get out?
Facts versus Headlines
It’s fair to say that the media push narratives that get ratings. But while according to the FBI in 2014, most black and white people are killed by people of their own race—89% for the black community, and 82% for the white, they often push a narrative that a young black man is more likely to be killed by a white cop.
The FBI didn’t break them down by race, but even if they were all white cops shooting black victims, which they certainly aren’t, that’s still four times less than the 2,205 black-on-black murders in the same year, or the 2,488 white-on-white murders.
Let’s be clear about that statistic, though. It has little to do with living in violent communities, a narrative that is often asserted. The first clue is that white-on-white murders are very similar.
It actually has to do with people being four times as likely to be killed by someone they simply knew.
See this table from the FBI, also in 2014, which shows that 43% of the time people were killed by an acquaintance or family, compared to 11.5% by strangers. The rest are unknown, but since the dataset is somewhat large, we should reasonably assume that nearly 4:1 ratio would be true for the unknowns as well.
The Attitude Adjustment
We need to change the way we interact with each other.
The police were hired to protect our rights. If one pulls you over or otherwise interacts with you, remember that this person is potentially willing to die for you—treat them accordingly. A little compassion for police who do such a dangerous job would go a long way to improve the exchange you have with that officer.
But as always, it takes two to tango.
Police are trained to fear the worst and prepare for it in each interaction they have with the public. The most innocent traffic stop could be their last.
But preparing for the worst doesn’t excuse assuming the worst, nor treating them as if they’re the worst. If police want people to respect them, they must first show citizens the same respect they expect from them. If an officer didn’t specifically witness a citizen harming someone, they are innocent until proven guilty—it’s an officer’s duty to act accordingly.
Blame Legislators Versus The Police Where Appropriate
Whether you’re a Republican or a Democrat (libertarians already generally know this), when you try to socially engineer society by passing victimless crimes, you cause police to have to enforce those crimes—requiring more police.
This puts both police and citizens in harm’s way; increasing the odds of violent interactions between the two parties.
Drugs, prostitution, blue laws, and other such victimless legislation which protect no one—yet risk many, are a huge part of the problem.
If you support passing a law, then you must be comfortable with the notion of putting a gun to the offender’s head and killing them yourself if they violate it. If you’re uncomfortable with this thought, then it’s pure hypocrisy to put police in the situation where they may have to do so in your name.
For instance, if your neighbor were smoking marijuana, would you walk next door, put a gun to their head and tell them to stop or you’ll kill them? Of course not. But if that same neighbor were raping a child, I suspect you’d feel quite differently. This is bad legislation versus good in a nutshell.
If we want to reduce senseless violence, we must first elect someone looking to undo all the senseless laws we’ve passed which trigger senseless violence. Then be sure they don’t pass new ones going forward.
Respect the Constitution
I’m in a state where concealed carry requires a permit. So this means I open carry when walking my dog at night, because I haven’t taken the course and applied for that license. I carry in case I get accosted by a miscreant. In so doing, I often worry I might get accosted by the police.
The current scenario is that if a busy-body citizen calls police to report me walking down the street carrying a gun, the police must investigate. They do this because we’ve allowed a litigious culture where police can be held liable for not investigating.
What should happen however is that the police should respond to the caller with, “Carrying a gun is every American’s right. Does he/she appear to be committing a crime? If not, there’s nothing for us to investigate.”
This may seem wrong at first, but the police would do this if you reported someone just driving a car down the street. Driving a car and carrying a gun are both perfectly legal actions that have an intrinsic danger if done so irresponsibly or maliciously. So while at first it may seem like a horrid analogy, they are almost exactly the same.
The reason it feels wrong is simple conditioning by anti-gun people who deem gun carriers as a threat, despite the fact everyone is a threat in some way, and gun carriers aren’t any more likely to harm someone. Most are responsible citizens exercising their 2nd amendment rights just as all of us exercise our 1st.
We then need to pass serious tort reform to preventing civil action against police who don’t investigate someone carrying a gun, on the off chance that person actually harms someone.
Better Community Outreach via Police Training
This proposal is a bit novel and controversial, and I admit it may have unintended consequences. But I like blue skies thinking, so I’ll propose it anyway just to get some creative juices flowing.
Much like we have food stamps to help the needy eat, I think police could use confiscated weapons that are normally destroyed, and start a program with impoverished citizens in bad neighborhoods to protect themselves by donating these weapons and giving classes on how to use them properly.
Of course those citizens would be screened properly for criminal backgrounds like they would for a gun purchase. And yes, it is possible one of those guns may be used in a crime later. But it’s also highly possible that those guns may save many lives of people too poor to buy one themselves, yet absolutely may need one as a result of living in a high crime area.
If every good citizen were armed, and prepared to defend themselves against a would-be criminal, we’d have a lot less would-be criminals.
Criminal prey on the weak, but it’s hard to call anyone packing heat, weak. Guns are the greatest equalizer mankind has every invented, turning a feeble grandmother into a Chuck Norris level threat.
Police Need To Eschew The Brotherhood Mentality
Being a Corvette owner, we tend to recognize each other—so much so, that nearly all of us wave at another Corvette owner driving past. Motorcyclists do this too. If you were from Boston, visiting California, and overhear the person next to you say he just “Pahked the Cah,” you’ll almost certainly strike up a conversation with him.
This is because people are hard-wired to bond with those they share commonalities with—it strengthens societal bonds. The easiest way to do this, is to bond over a unique common interest or trait. I say “unique,” because if you were both in Boston, you’d pay the same person no attention whatsoever.
Police know that their work is dangerous, so they form strong bonds among one another so they can be confident they’d have the other’s back, even if they don’t personally know each other—it’s a very natural phenomenon.
But they should be taught that this is a natural emotion, and that they should avoid following it blindly. Much like the placebo effect, while it’s natural, it can do far more harm than good if all skepticism is eschewed.
This data shows that police are just as likely to commit criminal acts as the general public.
At first, you might think this seems odd, but the police are regular people, not superheroes.
We often hear stories of good Samaritans doing wonderful things. So being a good person isn’t unique to police, nor is being a criminal unique to the general public either.
The reason I say they need to eschew the brotherhood mentality is that police often defend other police who have clearly done unconscionable things.
While at first, a police officer might think defending their “brothers” is the honorable thing to do, but it’s absolutely not in their best interests.
When an officer commits a crime, they violate their sworn oath to uphold the law of the land, dishonoring their noble profession. But it also creates animosity with the public who feel as though police can operate above the law without repercussion.
This hatred and distrust often leads enraged citizens to act violently towards the police, because they feel it the only way justice will be served—putting good cops needlessly at risk, as evidenced by the aforementioned Micah Johnson.
Instead, if an officer is arrested or put on probation for a potential felonious act, police should distance themselves from that person entirely, and make it clear that if the person is found guilty, that person is no “brother” of mine.
They should also be quick to report any criminal acts among their ranks, and clean their own house unmercifully. They will never get the trust and respect of disenfranchised citizens otherwise.
And let’s be honest, if you are a police officer, are you really OK with one of your own committing a murder or unprovoked assault?
Drew Peterson should serve as a shining example of the harm that can come from this blind loyalty. His fellow officers failed to properly address allegations of abuse against Drew when his then wife Stacy Peterson reported him a multitude of times for serious domestic abuse.
It is almost certain that had his fellow officers taken Stacy’s complaints seriously, and treated Drew like any other violently abusive husband—investigating Drew in earnest, Stacy could very well be alive today, with Drew safely in jail where he belonged.
By all means, police should have each other’s backs, but never at the expense of what is right. A criminal is a criminal, whether they wear a badge or a wife-beater, they should be treated with the same prosecutorial mindset.
I could write an entirely separate post on the tactics police unions use to protect police in ways that harm the general public, and destroy the public’s trust in them. They should merely assign the accused a lawyer, and refrain from professing the person’s innocence or any other public statements until that officer is cleared of any wrongdoing.
But once convicted, their sentences should be as harsh as what would be applied to the general public (in my opinion harsher, since they swore to uphold those laws). The slap on the wrist sentence for an offense that would land us regular citizens in jail is surely one of the largest factors in eroding the relationship between the governed and the government.
In January of 2013, an Oregonian bakery, Sweet Cakes by Melissa, refused to bake a cake for a lesbian couple who were soon to wed. Aaron and Melissa Klein, the bakery’s owners, are Christian, and felt that baking such a cake would violate their religious beliefs. As such, they refused the lesbian couple’s business.
As reported here by Fox, the couple faced a $150,000 fine, based on a January 29th, 2015 ruling, for discrimination as a result of such action.
Being an atheist and a libertarian, I find Aaron and Missy’s actions egregious and disgusting. I suspect many people who champion gay rights are happy to see them in trouble. But, as much as libertarians are indeed for gay rights, we are supposed to champion rights for all people, qualifiers be damned.
While the courts are doing a good job protecting the rights of the lesbian couple, they are taking away rights from the Kleins in doing so, and this is no better.
If the Constitution’s 1st amendment guarantees free speech under the law so people can say hateful things, shouldn’t the 1st amendment’s freedom of religion clause protect those who practice religion-based hate just the same?
If I were the gay couple looking to get the aforementioned cake, I’d be rather insulted by the Klein’s actions, but if I believe in liberty, I’d fight vehemently for them to engage in such hate, so long as their hate isn’t harming me in some way. Let the free market deal with the Kleins in the court of public opinion.
I could do so by taking my story to local media, which happened as a result of this case, but I could also go on social media like Facebook and Twitter and spread the fact that the Kleins are not gay-friendly, hoping reasonable people opt not to frequent their store, harming their business accordingly.
The free market appears to have done exactly that since the aforementioned article by Fox indicates they have since moved to doing business out of their home, because the loss of business cost them the ability to continue leasing their store. They opted to start a GoFundMe campaign to help them with their cause, but that later was shut down, again due to the free market flexing its muscle as gay rights groups got GoFundMe to pull the Klein’s campaign.
Religious groups on the right are calling for religious liberty, but in my opinion, they are equally bad in all of this, since I doubt many of them support the lesbian couple’s right to marry. If they do, good on them for not being hypocrites.
If America is indeed a free-market capitalist system, government has no right to impose its will on private enterprise in this way. Yet we Americans tolerate it because we ignore the fundamental basis of the Constitution—that we all have equal rights under the law, including business owners like the Kleins.
Equal rights under the law has to mean that any business should have the right to engage in, or refuse, business with anyone else for any reason imaginable, no matter how hateful and disgusting those reasons may be.
Why? Because it’s their business. Despite Obama’s claims to the contrary, they built it, and they own it. They should have the right to build it up or burn it down however they see fit.
But we so often call for such laws, because there seems to be this knee-jerk reaction that every time someone is wronged, instead of trusting in the free market to sort it out, we feel we must ask government to pass a law to prevent this from happening in the future instead. But that is not, nor ever should be, the purpose of government.
Government’s duty is only to protect your rights, not your feelings. In a free country, you are going to be exposed to people who offend you, but that also means you are free to walk away and not listen to them or deal with them.
The lesbian couple certainly could have found another bakery, or simply baked their own cake. Why would they want to do business with people they know don’t like them in the first place?
It’s certainly their right to ask the Kleins to bake them a cake, but how could anyone say they have a right to demand the Kleins bake them one? Don’t the Kleins have rights?
So as much as gay rights groups were up in arms until the January 29th decision was handed down, and now religious groups are up in arms instead, I’d call for both of them to stop being hypocrites. If you say you’re for freedom and rights, then you have to champion the rights for those who hate you too.
You may have read about a recent incident in Texas where a man, witnessing another man beating up a woman, stopped and drew his legal firearm on the woman’s attacker. A bystander contacted 911 who dispatched police moments later, and the attacker was eventually arrested by police with no shots fired, neither by the hero nor the police (the attacker appears to have been unarmed).
The police went on to say that they commended the heroic man’s actions for coming to the rescue of this woman. But as police so often do, stated that they didn’t want citizens exposing themselves to danger in this way.
This statement has a couple of interpretations.
Giving police the benefit of the doubt, this was to indemnify themselves from the impression that they would promote vigilantism. Meaning, that if they congratulated him entirely, gave him a key to the city, and/or named a street after him, it would encourage others to perform similar acts, one of which, if taken too far, could be felonious. There’s a line between justifiable homicide and murder, but sadly, it’s not like they teach this in school, so many may not know their rights as well as they should.
So taking this a step further, the next would-be hero-cum-felon might then say, “Well, I saw how police praised the other guy, so I wanted to do the same thing.” This then opens police up to a civil suit, arguing that the police encouraged such behavior.
It is upsetting we have allowed our country to become so overly litigious to the point where we’re afraid to speak honestly in such a way, but alas, tort reform is a subject for another post.
However, the other motive for these officer’s comments I most lean toward is the complete lack of hubris they often possess which leads them to believe that because they have went to a police academy and/or have former military experience, only they are qualified to use force to save a life.
I have regrettably never served in our military, nor have I went to any police academy. But I’ve been to the shooting range often, and I know my weapon’s operation well enough for defense purposes in the event use of deadly force were justifiable in a given situation.
More importantly though, I was raised with a set of morals that prohibits me from standing by and letting someone die when I’m capable of saving their life.
One good punch could mean the difference between life and death in a situation like this. I’m not about to roll the dice on an innocent life by calling 911 and hoping the police arrive in time when my partners Smith & Wesson can assist me in putting this business to rest now.
Government often wants us to subjugate ourselves to the men in blue. If I’m committing a crime and get caught in the act, I would agree—you’re busted, take your lumps. But to all the police officers out there who feel I should always comply with them, even when I’m in the right, I want to make a couple quick points.
You serve me, not the other way around. I also pay your salary. We citizens entrust you to enforce laws we voted to enact. It has never been our duty to comply with you, it is your duty to serve and protect us, and your responsibility to know the law and operate within it. If you don’t understand and appreciate all of that—you are essentially violating the oath you took when you signed up to be police officer; so resign now.
If it were your wife who had been getting beaten half to death, would you still have wanted this man to wait? Or would you have preferred him to intervene as soon as possible? I think we know the answer to this, so don’t be a hypocrite.
We have a guaranteed right to bear arms in this country. One of the reasons is because our forefathers wanted us to be free to defend ourselves. If you don’t like an armed citizenry, you can either attempt to get the votes to amend the Constitution, or you can expatriate. Otherwise, accept that you serve in a support role. So long as we have our Constitution, the power lies with “We The People,” not “You the police.” It is not our duty to comply with you. If you are in the wrong, we should not comply. If you attempt to get us to comply with force, you can rightfully be killed in self-defense.
At this time, the hero in question is unnamed, but his actions are highly commendable in my opinion—I’d gladly buy him the drink of his choice. Since this is an opinion website, unlike many police officers I suspect might actually agree with me, I don’t mind saying that I think we should be doing more of this, not less.
Every American citizen, at least the non-criminal ones anyway, should exercise their right to arm themselves. And more importantly, every state in the union should have the same laws on how and what you can defend.
So while I am thankful for the 2nd amendment, I would welcome an addendum to it that reads something like:
The right for the people to defend themselves, innocent others, their property, and their position in space, shall not be infringed.
I feel this language is consistent with the Constitution’s paradigm of being a restriction on government, but I think it would further solidify one of the inherent intents of our Constitution’s second amendment, by taking away the ability of colorful language often used to subvert the 2nd amendment currently.
While there’s no doubt, self-defense wasn’t the only reason we have that enumerated right, and thus why it wasn’t specifically written in to the second amendment, the need for it was certainly understood and part of the equation. So I see no harm in specifically broadening that right. No matter where you are in America, when your life, property, space, or the life of an innocent other is threatened, you should not be wishing your lawyer was present to advise you before acting to save someone, your firearm and general understanding of the law should be all that is needed.
You may have read in the news recently about two Ohio police officers getting potentially fired over very racists texts to one another. One of which said, “I hate n******. That is all.” (I edited out the pejorative, as I prefer not to repeat it.)
Some people are crying out that this is a clear violation of those officer’s First Amendment free speech rights. But nothing could be further from the truth.
While I am the first to complain about our rights being violated every day, this particular claim is one born from a basic lack of understanding regarding our Constitution.
The first amendment (and all of the amendments in the Bill of rights, for that matter) exists to protect you from prosecution because of something you might say. It does not protect you from having any repercussions from it.
For instance, if the state of Ohio tried to pass a law that said police officers may not engage in any racists discussions under penalty of law; that would be a clear violation of the first amendment. But, that is not what happened here; they were not charged with a crime in any way. They were simply put on leave pending investigation, and may be fired as a result.
Since it’s a separate issue altogether, I will avoid pointing out that the police officer’s union may work to save their jobs. My hatred of labor unions is well documented, so I will just state that I think the unions care little about rights or justice, just benefits to their own. In my opinion however, rights nor justice will be best served if these officers are not fired.
Oddly, the ones complaining about the rights of the officers being violated are actually championing rights violations of their employers instead, essentially making them hypocrites.
For instance, let’s imagine I started a business called Gary’s Gun Shop. Then imagine I had two employees whom I saw at some restaurant on their break. They don’t see me though, and I overhear them saying, “You know, I f***ing hate Marines. I wish every one of them died in combat.”
Owning a gun shop, I know that many of my customers will be current or former military, the last thing I want are employees who hate them. I have a legitimate concern that they will treat them poorly, so I should have the right to fire them, and you damn well bet I would.
Sadly, people often fail to look outside of themselves when it comes to employers. Most people have never owned their own business, and therefore have a hard time empathizing with business owners who do in fact have the same rights they do.
Imagine the police came to your home and told you how to arrange your furniture. Would you be pretty mad? Well business owners own a business, just as you own your home, so it’s essentially the same thing.
Obviously these officers work for government, which is owned by the people, not a person. But whether the owner of a company is taking disciplinary action against an employee, or it’s just their boss who is making that decision doesn’t matter. A supervisor of any sort has the right to fire you if they have legitimate concerns about how you may do your job in a way that’s inconsistent with that organization’s mission statement.
People often fail to realize that you do not have the right to a job, you only have the right to pursue employment. Whether an employer wants to hire you or keep you as an employee is their right alone. Your right is with whom you choose to accept an employment offer from, and that’s it.
The other issue at play here is a serious issue many people are losing sight of—liability. Once news broke these officers were clearly racists, and specifically stated they hated black people, that information is in the public domain.
If that officer then goes on to carry out their duties against a black person, any policy they might violate would immediately be grounds for a civil suit against the police department he serves. The officer’s racist texts would be exhibit #1 for the prosecution, and it would be an immensely powerful bit of evidence.
The litigants would easily argue that the officer did not act in good faith, use his racist diatribe against him, and blame the police force for not dismissing the officer accordingly, arguing they knowingly kept someone on staff who had the propensity to violate the rights of black people. And furthermore, they’d be right!
Such suits can cost communities, and therefore taxpayers millions. So kudos to this police department for taking swift action. Let’s hope the police union breaks with tradition and sides with justice, instead of opting to protect the bad actors among their ranks—I’m not holding my breath though, they have a history…
In America, our legislation process is laid out in the Constitution and for the most part, is fairly simple on the face of it.
I’m not going to go into the procedural issues. I know that legislation has passed the House of Representatives, only to sit on the Senate majority leader’s desk without a vote, and vice versa. I don’t think anyone outside of congress understands all that underlying and overcomplicated nonsense. There’s a good chance most of them prefer that lack of transparency—a problem in its own right.
On occasion, after a law is passed, it gets constitutionally challenged and ends up in the Supreme Court. Again, a simple majority of the justices determine if the Constitution was violated, then either uphold or strike it accordingly.
While this process seems to make sense at first; being a person who loves thought exercises as I do, I think our Constitution could be better.
We all should understand that the Constitution was intended as a guarantor of our rights, so with the intention of keeping government limited, I feel the founding fathers could have done it better.
My blue sky thinking premise is pretty simple.
Instead of allowing a simple majority to draft laws which grow government, I would require that a two-thirds majority be needed for passage of all laws where a restriction on the people is proposed. Tax increases, regulations on commerce, but a few examples. Only laws which are restrictions on government, such as in the Bill Of Rights, or efforts to strike laws already on the register could be passed with a simple majority.
My reason for this is to make expansion of government incredibly difficult for legislators, by ensuring that the laws they do pass will likely transcend political agendas and are legislation most rational people on the left and the right would agree on. Yet at the same time, it would make it easy for any legislator wearing a their libertarian hat that day to reduce the size and scope of government by simple majority.
But we can take this a step further by foisting this principle on the Supreme Court as well. If SCOTUS agrees to hear a case, before arguments even start, they would have to establish whether the law is a restriction on government or the people. Any law deemed a restriction on the people would be struck down unless a 2/3 majority choose to uphold it. I don’t know that a restriction-on-government law has ever been challenged, but only a simple majority would be needed for such a law to stand.
While I know I write about the Constitution often and hold it in incredibly high regard, I think it’s quite important to understand it was a document written by imperfect men, and more importantly, had little historical evidence to go off of for guidance. As such, our founders had to write it to the best of their abilities, and hope the amendments process would fix any misgivings they may have omitted.
The fact that the 18th amendment was allowed to pass (Alcohol prohibition) is clear proof that a little trial and error was always in play. So while I understand some might think me politically sacrilegious for suggesting a modification to our beloved Constitution, I am not painting a moustache on the Mona Lisa here.
There is a great divide between libertarians like me who propose constitutional amendments from others who would either dismiss the Constitution altogether, or who want to add more restrictions like the reprehensible Defense of Marriage Act, which has no place in a document designed to protect rights. I’m looking to add more teeth to the document, whereas, many Democrats and some Republicans are looking to defang it so that it’s bite no longer restricts their social engineering agenda.
It’s been untouched since 1992, but thanks to a Congress, Senate, and sadly a Supreme Court, who don’t seem too concerned about liberty this days, our Constitution could use a little dose of adrenaline. Our rights are supremely important, and while we would never stand for an elimination of them altogether, the constant erosion of them has been in place for centuries. “We the people” have the power, not government. Let’s help those in Washington who were elected to serve us help them remember that.
We libertarian-minded people often complain that presidents are ruining our nation or that congress are passing unconstitutional laws infringing on our rights. But oddly, you rarely hear complaints about the Supreme Court.
They work just as much as congress does, and with Obama’s golf game in high gear, it seems like they likely work more than him. So why is it that people complain ad nauseam about congress and the president, yet give SCOTUS a pass?
We all know about National Federation of Independent Business v. Sebelius, where Chief Justice John Roberts famously provided the majority decision to treat the Affordable Care Act’s penalty as a tax, therefore accepting the legislation as constitutional, despite the fact that Sebelius’ side specifically argued it was to be a penalty and not a tax.
The administrations reason for calling it a penalty was largely political so that Obama would not be deemed as a willing participant in raising taxes on all Americans, including the poor.
So why would SCOTUS rule in such a way as to effectively rewrite law?
Sadly they shouldn’t have—the Constitution is quite clear. I accept that the idea of questioning SCOTUS from my layman’s Constitutional perspective seems mighty ambitious, but the Constitution enumerates quite clearly that the Supreme Court’s duty is to adjudicate laws on the basis of their constitutionality, in so doing, setting precedent for lower courts to follow.
Writing law is strictly the job of Congress, and therefore Roberts and the majority. were out of line. They should have just rejected it as it was, and let congress rewrite and repass it in a more Constitution-friendly form.
A million other op-ed writers have elaborated on this case well enough that I feel any opinion I would write would be redundant, so I am instead going to focus on the idea that much of our ire at government in general should be directed at SCOTUS.
First things first, let’s look at their oaths of office. (Yes, there are two.)
If we break this down, it is clear that their personal opinions shall be suppressed, and rulings should be given solely based on what is contained in the Constitution and U.S. law.
There are two potential views on this. There are absolutists who feel the Constitution must be adjudicated as written. That rulings should be based solely on the verbiage of the Constitution, not what SCOTUS justices believed the legislature meant when writing it.
Others believe that the Constitution is a living document where justices are free to rule with the Constitution as their guide, but have license to issue judgments based on what they feel the framers of our Constitution may have meant. But this interpretation essentially allows for SCOTUS justices to rule however they want, so long as they can fabricate some story, no matter how ridiculous it may seem, to align their opinion with the framers’ intentions.
But clearly this makes the Constitution virtually irrelevant if we think this way, as it essentially means that SCOTUS is only limited by individual justice’s imaginations.
For example, in McGowan v Maryland, Sunday closing laws (blue laws, as they’re known) were challenged as a violation of the 1st amendment; the argument being that they were clearly a law establishing religion.
If the justices had been absolutists, the law would have unquestionably been struck down with its clear religious underpinnings. But those who held this decision instead opted to find a way to allow it, despite the Constitution’s concise forbidding of laws establishing religion, because at the time, Christian opposition to overturning such longs would have been quite great. All people want to be loved, including Supreme Court justices I guess, their oath-of-office be damned.
Since the Constitution doesn’t address absolutism versus interpretationism specifically, sadly SCOTUS justices may take either tact at any time.
I find this notion troubling as it seems clear to me that the Constitution’s framers did not intend for this by virtue of the way the Supreme Court is set up.
Firstly, the Justices are appointed, not elected. Then once appointed, they are never reelected or reappointed; they’re a Supreme Court Justice until they retire, do something criminal, or death does them part.
The purpose of this is to ensure that they never make a decision based on popular opinion, nor make a decision based on what the legislature or the president who may have appointed them might want.
If Justice Sotomayor for instance, were to rule against Obama in every constitutional challenge he were to be involved in, despite the fact he appointed her, there is no recourse he has. Once she’s confirmed, her decision shall not affect her job status whatsoever. It’s the only true way that she makes her decisions, no matter how unpopular that decision may be, with sole regard to the constitutionality of it—assuming they adhere to their oaths.
This is the very point of the Constitution in general. Many forget we are not a democracy, but a republic. We have our Constitution, and thus SCOTUS, to protect the rights of the minority from the majority. By definition, there is no point in SCOTUS’ nor the Constitution’s existence, if government is simply to side with popular opinion.
So the very act of considering congress’ or the people’s opinions when ruling on the constitutionality of something is a violation of the Constitution’s core principles. So in National Federation of Independent Business v. Sebelius, it was not the majority opinion’s right to essentially work with congress and the people to find away to allow an unconstitutional law.
While this was a landmark case, the fact is, this reasoning should apply to a majority of laws in the United States. The Tenth Amendment alone should be grounds for striking much of federal legislation. It states as follows:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
This essentially states that unless the law in question is of a subject matter that the Constitution defines as a federal issue, or forbids the states from legislating on, the law must be a state issue, or a matter between the people.
So while we lambaste congress and the president for violating our rights, let’s not forget that SCOTUS has the ability, and more importantly, the duty under the Constitution, to be the last line of defense of our rights—something they don’t seem to take too seriously these days. If anyone should know better, it’s them. Their forbidding of cameras in the courtroom, and rare amount of interviews given have kept them out of the limelight, likely by design. But I say let’s make sure we’re pissed at them too.
log·i·cal: capable of reasoning or of using reason in an orderly cogent fashion lib·er·tar·i·an: an advocate of the doctrine of free will; a person who upholds the principles of individual liberty especially of thought and action