by Rodger Malcolm Mitchell, www.nofica.com
What is the purpose of the Supreme Court?
That simple question has no simple answer, and the Constitution is mostly silent about it.
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Here are some not-so-simple answers:
The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself.
The Court established this doctrine in the case of Marbury v. Madison (1803).
Thus, in 1803, the Supreme Court arbitrarily decided what its power will be.
That circular reasoning gives the Court whatever power it wishes to exercise on any given day.
(Remember the words, “not found within the text of the Constitution itself.” We’ll return to those words later.)
If you were a justice on the Supreme Court, how would you judge cases? Would you judge according to your interpretation of”
- the plain, 1780s language in the Constitution?
- the words of the Constitution as they are used, today?
- what the framers of the Constitution meant in the 1780s?
- what the framers would have meant had they known about today’s realities?
- what you believe is best for America, today?
Today, as the Senate “debates” the fitness of Amy Coney Barrett, these questions become important.
Here is what Judge Barrett claims to believe:
Much of the hearing focused on such matters as Barrett’s judicial philosophy of Constitutional “originalism” and “textualism.”
She believes the Constitution should be interpreted with the original intent of the founding fathers in mind and statutes should be interpreted in accordance with the actual words or “text” used by legislators.
Judges should not impose their own policy beliefs to advance changing cultural norms.
Perhaps she thinks this is what she believes. Perhaps this is an honest answer, but I doubt it, for it is a lie.
Begin with the fact that the founding fathers did not know of today’s science: electronics, atomic energy, weapons of mass destruction, medicine.
Add to that the fact that 1780’s morality is quite different from today’s, especially with regard to women, people of color, and children.
By today’s standards, the founding fathers were blatant, selfish bigots, who believed that they were superior human beings, and the rest of us were inferior.
And add to that the fact that yesterday’s words often mean something quite different, today.
There is not a single paragraph, not a single sentence or word in the Constitution, that is not subject to interpretation.
Let us parse, for instance, just one sentence in the Constitution, the 2nd Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
A well regulated: How “well” is well? How is “well” to be evaluated and who does the evaluation? Specifically, what is meant by “regulated”? Whose regulations must be followed – city, county, state, or federal?
Militia: What is a “militia”? Is it the U.S. army? Is it the National Guard? Is it the state police, county police, city or village police? Or is it some other, unidentified group, and if so, what are its powers?
being necessary: This phrase can mean “is necessary,” or it can be conditional, as in “when a well-regulated militia’ is necessary,
to the security of: What exactly does “security” mean? Does it have to do with foreigners who might attack us? Or does it refer to internal security from lawbreakers? Or does it have to do with individuals’ protection from an unfair government?
Currently, the United States, depending on interpretation, does not have any well-regulated militias, and if such are “necessary, we are not . . .
. . . .a free State,: What then, is a “free state.” Free from what? Every law that ever has been, or ever will be passed, diminishes in some way, some citizen’s freedom, though it may enhance others’.
Not only are all of these words debatable, but just within the past few years, the entire 13-word phrase has been effectively eliminated.
We now come to the only part of the Amendment that has been left intact.
the right of the people: Which people? Does this include children of any age? Criminals? Non-citizens? And where can this “right” be exercised? In Congress? In a court of law? In jail? On the street?
to keep and bear: Where does “keep” mean? In a house? In a safety-deposit, bank vault? In a pocket? And where may one bear an Arm? In one’s hand? In one’s clothing? In one’s car?
Arms: What are “arms”? Atomic bombs? Fighter planes? Cannons? Machine guns? Poison gas? Tanks? Or does “Arms” include only what the founders knew about (i.e. “intended”): Swords? Muskets? Flintlock pistols?
shall not be infringed: Currently, “infringe” means to limit or undermine. So does this phrase mean there are to be no limits at all?
When Amy Coney Barrett claims she will follow “original intent” and the “actual words,” she either is lying or is naive, or both. She will do exactly what she claims she will not do: She will advance her own policy beliefs according to her own view of cultural norms.
Barrett, and other so-called originalists, like to paint themselves as innocent, blank slates, whose only information comes from the indisputable words of the Constitution.
They use the “I-can’t-help-it; that’s-what-the-Constitution-says” (or doesn’t say) excuse for doing exactly what they want to do.
Here is an example of that devious, originalist thinking:
Justice Clarence Thomas, who rarely speaks at all, issued a joint statement with Justice Samuel Alito, that the Court’s 2015 ruling “read a right to same-sex marriage…even though that right is found nowhere in the text“ of the Constitution.
He wrote it had “ruinous consequences for religious liberty” of those who might object.
Justice Thomas, who has spent his inferior career seemingly denying he is black, now uses the “nowhere to be found in the text” line as his excuse for ruling that his own religion‘s interpretations of civil law are to be found in the text.
(Remember, that the purpose of the Supreme Court itself is “nowhere to be found in the text,” so is Justice Thomas issuing a defacto objection to all his rulings?)
Despite related references in the Constitution, Thomas apparently believes religious dogma trumps the law.
There is a widespread notion, especially strong among conservatives, that Justices should not create new law. Rather, law-making is to be left to Congress and to the President.
Supposedly then, the Supreme Court should pretend America remains in the 17th Century, pretend to ignore the real world around them, and pretend to be robots who, without compassion, mercy, or care, judge only as our omniscient founding fathers would have judged.
Originalism is a myth, a monstrous myth, perpetuated through the years by an overly Christian, overly white, overly male, overly old Court. It is a myth that has excused and created numerous cruel, thoughtless legal opinions that have devastated millions of American lives.
The originalists sit on high, looking down, both literally and figuratively, divorced from the human needs of real people, and coldly rendering decisions often destined to inflict pain.
I do not respect the “originalists” on the Court. They are callous, heartless, cold-blooded, archaic machines, who have forgotten the fundamental purpose of government: To improve the lives of the people.
Originalists are the strict disciplinarian, “anti-Ginsburgs” of our generation.
Amy Coney Barrett may be an intelligent woman, but without compassion she has no reason being put in a position of such power.
We only can pray, the harm she does (if any) will be short-lived and soon forgotten.
