Tag Archives: judicial oath

Why Do We Only Complain About 2/3 Of Government

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?

Golfer-In-Chief: President Obama
Golfer-In-Chief: President Obama

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?

Supreme Court of the United States Chief Justice John Roberts
Supreme Court of the United States Chief Justice John Roberts

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.)

The Constitutional Oath

“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.  So help me God.”

The Judicial Oath

“I, _________, do solemnly swear or affirm that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.  So help me God.”

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.

Chief Justice Roberts Being Sworn In
Chief Justice Roberts Being Sworn In

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.alcohol1[1]

However, the courts ruled that the law was secular in nature and these communities were simply enforcing a day of rest. They ignored that the chosen day was Sunday, which aligns with Christian dogma, and contradicts Jewish dogma, infringing on the Jewish people’s own rights to work on Sunday.

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.

The 1st Amendment
The 1st Amendment

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.

The Supreme Court Of The United States
The Supreme Court Of The United States

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.

NHTSA (National Highway Traffic Safety Administration), the EPA (Environmental Protection Agency), and the DOE (Department of Education) are all effectively precluded via the Tenth Amendment. Where does the Constitution mention traffic, the environment, or education? (Hint: It doesn’t).

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.

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Why Justice Ginsburg Should Honorably Step Down

Gary Nolan (and THE Scrappy Doo)
Gary Nolan (and THE Scrappy Doo)

Earlier this month Justice Ginsburg was doing an interview in Egypt regarding their drafting of a new constitution when she said:

“I would not look to the US Constitution if I were drafting a constitution in the year 2012”.

There’s no context that I’m leaving out that changes the underlying meaning of her words. She did follow it up by outlining that there are more modern ones that focus on basic human rights (as if life, liberty, and property aren’t all encompassing) and that even though the U.S. is one of the youngest nations, we have one of the oldest Constitutions in use. These caveats, however, do not change her original statement’s context which indicates she doesn’t feel our Constitution is the best constitution or even a very good one worth emulating.

Message to Justice Ginsburg—it’s the oldest one in use because it works better than all the others! Are we not the most powerful nation in the world? That should be a sign that it has done pretty well by us.

It would have been a different story if she said something to the effect of “I think the U.S. Constitution is a great document and worth emulating, but there are certainly other modern ones that are good as well if ours doesn’t suit you.” That would have at least shown a healthy respect for our Constitution without trying to shove it down their throat. However, there were no compliments or even respect shown to our Constitution whatsoever.

U.S. Supreme Court Justices are required to make certain oaths upon taking office. I have outlined them below.  Consider the following as it relates to Ginsburg’s words:

The Constitutional Oath

“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.  So help me God.”

The Judicial Oath

“”I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States.  So help me God.”

As a citizen, if someone disrespects the Constitution, ironically, that’s their constitutional right; I support that no matter how idiotic I think they are. But, when someone who has taken the aforementioned oaths does so while in office, then that raises an ethical issue as it relates to their job.

I don’t believe she should commit hara-kiri, or  even be impeached; her actions weren’t criminal. But as a matter of principle, she should be honest about her lack of respect for the Constitution and step down if she doesn’t feel a duty to uphold it as it is written.

The purpose of a Supreme Court Justice is to protect the minority from the majority based on the Constitution as it is written. But based on her statement, it is logical to have concern that she may base her decisions on what she believes the Constitution should be, not what it is. This is legislating from the bench, and it’s a serious threat to the system of checks and balances that ensure our government’s limitations of power over its people.

The legislative branch (Congress) enacts laws, the executive branch (President) is charged with enforcing laws, and the judicial branch (Supreme Court) determines the constitutionality of laws. The Congress is checked by the president via veto power and the Supreme Court via the striking down of laws they determine are unconstitutional. No branch is allowed to do the job of another.

In order for Justice Ginsburg to attain the position of U.S. Supreme court justice, she was first picked by the sitting president (Bill Clinton). Then once appointed, she was called to the Senate Judiciary Committee, where she was asked questions about how she would adjudicate. The questions generally circle around whether she will honor the Constitution as written, or whether she would try to legislate from the bench—the latter being rather frowned upon.

The honorable thing for Justice Ginsburg to do would be to confess that, “I have decided I no longer have a passion for defending the U.S. Constitution nor ultimately believe in its principles. As a result, I feel it necessary to step down out of respect for the American people and the office of the U.S. Supreme Court so that someone with a more dutiful concern for the role may hold that seat in honor.”

I’m not holding my breath…