Tag Archives: The Supreme Court

Shift to the Right: (Part 3 of 3): The Ordinary Citizen, Popular Culture, and the Enforcement of the Law/Outro

(PDF of full article here)

 

The Ordinary Citizen, Popular Culture, and the Enforcement of the Law

More than mere words on a paper, does a law on the books do any good if it lays dormant? As the nation turns its eyes to the highest tribunal, both sides hoping to garner just that one vote to tip the scales in their parties’ favor, perhaps history can shed some light on the realities of life. Before the Civil War, the entire nation, ripped apart and split in two on the issue of slavery, turned its eyes to the Supreme Court to settle the pressing issue of the day once and for all. Still reeling from Worcester v Georgia[xxxiv], after which incident president Andrew Jackson is reported to have said, “The decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate,”[xxxv] the Supreme Court adopted what was known as Judicial Restraint for many years to come.

Yet when the pressure mounted on the Supreme Court to decide the decisive vote on the hot issue of slavery, the Court finally decided the infamous case of Dred Scott v Sandford[xxxvi], causing an uproar throughout the nation, further splitting apart an already divided nation and ultimately leading to civil war. Much as today’s politicians talk about Court decisions being “settled law,” even Abraham Lincoln, months before Dred Scott was handed down, had stated that “the Supreme Court [is] the body charged with deciding the issue of slavery in the territories and that ‘we will submit to its decisions; and if you do also, there will be an end to the matter.’”[xxxvii] In reality, however, this was not to be as even Lincoln himself soon changed his tune on the matter.

After the Civil War, Radical Republicans took control over Congress, passing the Reconstruction Amendments (Amendments that president Andrew Johnson waged a massive campaign against), Enforcement Acts and various Civil Rights Acts. Yet, ultimately, the presidential administrations of the era refused to enforce the legislation, refusing to intervene to stop the corruption and violence that ran rampant; the states and their judges (voted in by the people) refused to comply, and the Amendments and subsequent legislation by Congress quickly lay dormant and unenforceable. Since abortion is the hot-button issue of the day that is tearing this nation apart, it is worthwhile to look into the hearts of the nation’s citizens and learn from human history as to how this story will play out. Is abortion about the regulation of morality- sexual or religious? But even setting aside the blatant Unconstitutionality of the latter, can a state use its police powers to effectively govern morality when the overall culture is vulgar and promiscuous and where “anything goes?” Absent widespread social change (possibly even revolution), the short answer to this question is likely to be a resounding “no.”

If the Civil War represented an appeal from law to the sword, that was true because the opposing extremes no longer accepted the underlying premises of the legal order. Americans too often forget that the rule of law draws only limited strength from judicial guaranties; it must have roots far deeper than a formal fundamental document and decisions of the judges enforcing it. Our public law depends for its efficacy on popular acceptance of its basic presuppositions. Acceptance, rather than formal legal machinery, is the decisive force in the law’s implementation, with Learned Hand in a famous passage we may ‘wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes, believe me, these are false hopes.’[xxxviii]

No act of the legislature nor decision by the Supreme Court is likely to ever lay the issue of abortion to rest any more than the issues of slavery or racism were ever laid to rest by words on a piece of paper. Only getting straight to the heart of the real issues at play and a true reconsideration of the role of women in society and the family is ever likely to lay such an issue to rest, much the same as the issue of racism and segregation (though still not entirely eliminated among ordinary citizens in society at large) could never be laid to rest without a thorough re-examination of the status of African-Americans as citizens and an acknowledgement by the people of the nation of their position in society and the law as equals to the heretofore dominant Caucasian race. Couched as pro-choice activism is in society’s belief in women’s equality, society can never even begin to move past this issue without a thorough re-examining and reconsideration of the entire premise of feminism from its very roots.

And it must be remembered that what controls women will also control men. All too often it is the male who pressures the woman he has been sleeping with/having an affair with into obtaining an abortion (often offering up the funds to pay for it as well) because the male does not wish any responsibility for the products of an unwanted pregnancy after a night or two of fun. Those who would term themselves as “men’s rights activists” have no case, no cause, no purpose nor any legislative agenda outside of the realm of feminism and egalitarianism. If feminism and its egalitarian legislative progeny die out in their entirety in society, their cause will go down right along with it. The males of society will then have to come face to face with what is termed “responsibility,” having to face the reality that actions have consequences- and they cannot continue to run their pick-up artist “game” if there are consequences attached to the sex act that the society will then ultimately hold them accountable for.

Trickling down from the highest tribunal to the lowliest officer of the law, many forces push and pull against each other in the adversarial system of American criminal justice. Many legal processes must first be traversed before an individual may actually be prosecuted, convicted, and punished for any crime. Fairness in the rule of law and criminal justice procedure is, after all, the very premise upon which the American criminal justice system was founded upon. Ethics play such an important role in law enforcement on account of the discretion that officers on all levels are given in the carrying out of their duties, and the power of the ordinary citizen in the enforcement of the rule of law has been greater than many realize throughout history. What is the alternative to discretion but tyranny? The short answer is that there is none.

Even for actions officially recognized as illegal under the law, an officer retains discretion whether or not to arrest an individual. Ethically, it is an officer’s duty to uphold the law even when off-duty, but all the way from a simple traffic citation to violent crimes, the decision ultimately rests with individual officers to choose whether or not to arrest. It is also prosecutors who decide whether or not to pursue a case and, if so, specifically what crimes to charge the individual with.

The Second Amendment retains for the states the right to a “well-regulated militia,”[xxxix] and in the days of old this gave power into the hands of ordinary men to challenge an unjust cause much the same as ordinary citizens today retain the power, when called upon to try their fellow citizens for crimes in a court of law, to acquit and effectively nullify the law at issue. “That every man be armed:”[xl] Not only the right to bear arms, but historically the obligation to do so fell upon adult male citizens, and when called upon to act, local militias could exercise a form of passive resistance by simply refusing to muster and heed the call to bear arms,[xli] much as modern juries still to this day retain the extraordinary power of jury nullification, whereby ordinary citizens can simply fail to convict a defendant even in the light of overwhelming evidence of guilt when they believe the case or law at issue to be unjust. Due to the prohibition of double jeopardy in the United States Constitution, the defendant then walks free, as the government cannot retry the defendant again upon the same charges after an acquittal.[xlii]

Nowhere today can this issue be seen more clearly than with modern juries refusing to convict in drug cases, even as society struggles with a serious drug problem. The push to legalize specific varieties of formerly illegal recreational drugs is strong. The laws don’t work, because the people are simply unwilling to believe in or comply with the laws. Could abortion also fall in with this issue? Is- was- legalization not responding to a serious problem that society faces on both accounts? Are there not less arbitrary measures to affect the same goals? But can any change ever happen without an extreme makeover in the overall structure of society? Were not “Too many wealthy women… flouting the law to get abortions from respected physicians…[and] too many poor women being injured by inadequately trained mass purveyors of illegal abortions”[xliii] at a time when “free love” and the sexual revolution were rocking society, much the same as the opioid epidemic has plagued and ravaged the nation today, causing lawmakers to look to alternatives- including the legalization of the “softer” drugs such as marijuana- to attempt to address a serious problem in society and prevent further death and hardship of the nation’s citizens?

As opposing and competing forces push and pull society in two different directions, we as a nation must stop and ask what it is we are doing, where we are going, and what, precisely, is hoped to be achieved? Is it a reinstatement of law and order and a returning of America to a supposedly more prosperous time? And how can that ever be achieved without addressing, but yet instead choosing, to turn a blind eye to the underlying forces that have caused the problems in the first place? Tyranny by the executive, legislative or judicial branches of government can never hope to turn America into the great nation that it once was in a civilization that simply no longer believes in the rule of law.

Outro to the Posting

What I have set forth here is a proposal: A deep and serious consideration that I do so sincerely hope can reach the hearts and minds of many. And with this humble piece of scholarly literature I do now so contribute it to that prayerfully ever free and prosperous marketplace of ideas.

————————————————-

[xxxiv] 6 Pet. 515 (U.S. 1832).

[xxxv] A History of the Supreme Court, supra, p. 94. Quoted from Letter from Andrew Jackson to John Coffee, Apr. 7, 1832.

[xxxvi] 60 U.S. 393 (1857).

[xxxvii] See Peter Irons, A People’s History of the Supreme Court, p. 179 (5th ed. 2006). Quoted from Lincoln, “we will submit”: Phillip van Doren Stern, ed., The Life and Writings of Abraham Lincoln, 399.

[xxxviii] A History of the Supreme Courtsupra, pp. 126-127. Quote by Learned Hand, The Spirit of Liberty: Papers and Addresses of Learned Hand 189-190 (3rd ed. 1960)

[xxxix] “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.” U.S. Const. amend. II. For a thorough discussion of the Second Amendment see generally A Well-Regulated Militia, supraSee also United States Supreme Court cases of McDonald v City of Chicago, 561 U.S. 742 (2010); District of Columbia v Heller, 554 U.S._ (2008). (Incorporating the Second Amendment against the States as an “individual right”).

[xl] The cry of Anti-Federalist Patrick Henry at the Virginia ratification debates. See A Well-Regulated Militia, supra, p. 53.

[xli] Termed sometimes as “militia nullification.” According to Saul Cornell in A Well-Regulated Militia, supra, “Implicit in the idea of the militia was the idea that citizen soldiers were not passive tools of government, but retained a right to refuse to muster and thereby exercise a form of passive veto on government policy…This type of passive resistance was akin to the right of juries to refuse to convict a citizen under an unjust law, effectively nullifying the law at issue.” (p.81).

[xlii] Due to the dual sovereignty doctrine, however, a defendant may be tried both at the state and Federal level for the same offence, and also if the defendant crossed state lines in the commission of the crime, may be tried by each State that the crime was committed in. See, eg., Heath v Alabama, 474 U.S. 82 (1985).

[xliii] A History of the Supreme Court, supra, p.333.

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Shift to the Right (Part 2 of 3): The Dangers of Excess “Conservatism”/The Common Law and the Constitution

(PDF of full article here)

 

The Dangers of Excess “Conservatism”

For all the good that might become of a Supreme Court that leans more to the Right, there are also many inherent dangers that accompany too much “conservatism.” A few months ago I had said to my husband- only half-jokingly- that I often wondered if our grandparents didn’t all pass away just so they wouldn’t have to live to see what America has become. For all the good that less governmental intervention in the economy might do, many forget all that history has to teach about the often extreme abuses against the common and ordinary citizen that naturally accompany unrestrained laissez-faire capitalism. According to Peter Irons in his 2006 book A People’s History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped Our Constitution, during the last two decades of the 19th century (speaking of the expansions of the railroads), “…railroads had their caste system and brakemen took home only $212 that year for the most dangerous job on the trains. More than two thousand railroad workers died in accidents each year, and thirty thousand suffered injuries.” (p.245)

According to Bernard Schwartz,

To return to the Peckham conception of law is to return to a time when ‘it was unconstitutional to intrude upon the inalienable right of employees to make contracts containing terms unfavorable to themselves, in bargains with their employers.’ In those days, ‘[a]n ordinary worker was told, if he sought to avoid harsh contracts made with his employer…that he had acted with his eyes open, had only himself to blame, must stand on his own feet, must take the consequences of his own folly.’ And if, as in Lochner, a law sought to equalize the situation, it was ruled an invalid interference with freedom of contract. To return to Lochner is to return to the abuses that inevitably accompany unrestricted laissez faire.”[xii]

After all, there is a reason why many of our grandparents were Democrats. “Democrats are for the blue-collar worker” is what we often have heard, and history bears this out to a large extent. In the days of laissez-faire, the common, average, and impoverished citizen was often told:

Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. We know that this is a power which may be abused, but that is no argument against its existence. For protection against abuses by legislatures, the people must resort to the polls, not to the courts.[xiii]

 By and large the Republicans often favor the rich/elite and the big corporations, often stating today something similar to the above quoted passage as regards the democratic process. But to quote Schwartz once again: “A supreme tribunal that molds its law only to fit immediate demands of public sentiment is hardly fulfilling its proper role. As Justice Frankfurter once put it, ‘The Court has no reason for existence if it merely reflects the pressures of the day.’”[xiv] What is needed, in reality, is to maintain moderation as danger lurks whenever courts and legislatures swing too extreme either to the Left or the Right. Mostly “moderates” in the center on the Supreme Court were responsible for most of the legal revolution of the mid-20th century, ruling according to the “felt necessities of the time.”[xv] Perhaps today the “felt necessities” could be that the “welfare state” has simply gone too far.

But as everyone hopes that the highest tribunal shifts to the Right so that Roe might be “overturned,” there are many more consequences of such a shift that many never give any heed nor regard to, but which will become even more apparent as time goes on. Part of this disregard simply stems from an ignorance of the history of American legal and Constitutional jurisprudence. Or perhaps Americans truly believe by and large that some rights and freedoms now enjoyed by the criminal defendant, the indigent, and the political dissenter have simply always existed as they do now. Sadly, this is not the case. Many rights and freedoms Americans enjoy today actually come from the “liberal” excesses of the mid-20th century- excesses “conservatives” on the Supreme Court and elsewhere have consistently been trying to chip away at for the past few decades.

The right to jury trial of one’s peers at the state level in cases where the possibility of incarceration exists, the right to be read one’s rights at the time of arrest/detainment in the custody of police,[xvi] the right of an indigent criminal defendant to a lawyer,[xvii] the right to petition for habeas corpus,[xviii] the right to a lawyer upon appeal, the prohibition of police use of the “silver platter doctrine,”[xix] the prohibition of the use of illegally obtained evidence by Federal or state officers in criminal trials,[xx] the right to burn an American flag in political protest,[xxi] the right of one’s children to refuse to salute the flag and against compelled prayer in public schools,[xxii] etc…

Only due to the “liberal” and “moderate” forces upon the Supreme Court in the 20th century do these rights even exist at all. The president’s War Powers have also been largely kept in check on account of “liberal” and “moderate” forces on the Supreme Court. It can’t be taken for granted that Republicans such as those of the current administration have little respect for the rights of the accused or suspected enemy combatants to habeas corpus. The “conservative” forces must balance out the liberal forces, of necessity, in order to protect the welfare of the public, but “conservative” excesses have a long and dated history of giving carte blanche to the president, legislatures and other executive officials- especially since 9/11.[xxiii] This isn’t a set “rule,” of course, but there is enough of a history to make anyone mindful of the law and criminal justice system wary of the consequences of too much “conservatism.”

 

The Common Law and the Constitution

Perhaps I would like to bring the abortion issue back into the equation for the moment. There doesn’t seem to be much common sense floating around where this issue is concerned, just back and forth ranting. I’m not here to rant about these issues, but only to reason rationally and deeply- and realistically- about them. My main fear where this issue is concerned is that it simply reeks of “police state” with a side order of religious tyranny.

It isn’t really enough to look through history or the common law of England where this issue is concerned, though it could shed light on history and the nation’s founding, as the common law was adapted over time to the unique scenarios and circumstances of the American way of life.

The first issue is how prosecutions would proceed. There have already been instances in recent years of individuals (of both sexes- not just women) being charged for giving abortifacients for the purpose of illegally inducing abortion. Obviously if a woman enters the emergency room with complications from an illegal abortion, the law does allow (in some instances it requires) that the crime be reported to police. But if a woman chooses not to receive emergency care after an illegally-induced abortion (or simply does not need care if she has no adverse side effects), how then would charges be brought and whom would they be brought against? Being “pro-life” might sound good on paper- much the same as “drug-free”- but reality must be given greater weight than sentiment where issues of law are concerned.

 The nature of abortion has changed since misoprostol began being used to induce abortions non-surgically in the 1980s. The drug is widely available in some Latin American countries where abortion has been outlawed (usually due to the influence of the Catholic Church) without a prescription, but in recent years it has shown signs of becoming a major “black-market” drug in the United States. Obviously, the dealers of such drugs could be caught in the normal legal manner, but danger of governmental tyranny and Unconstitutional search and seizure lurks in the murky waters where the woman who takes the drugs is concerned.

This question must be proposed, now that I have also in-depth asked the questions above of how a more “conservative” majority in our Federal courts and in the Supreme Court would deal with the rights of criminal defendants. Justice Harry Blackmun (who wrote the opinion of the Court in Roe v Wade), in sharp contrast to today’s justices who generally have their law clerks do most of the research and write up rough drafts of opinions for them, spent months doing research and writing up drafts (whom Justices Douglas and Brennan consistently gave him feedback on) in the Roe case[xxiv]. In the final Roe opinion, he went over historical abortion laws in good depth and concluded that most of the early anti-abortion laws in early American history (which laid the full legal penalty upon the one providing the abortion, not the pregnant woman) were generally thought to be designed to protect the woman from submitting herself to a procedure that in many cases would threaten her life.[xxv]

When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. This was particularly true prior to the development of antisepsis…Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940s, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State’s real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.[xxvi]

One of the major grievances the American colonists originally had against the Crown before the Declaration of Independence was the general writs of assistance that were used to arbitrarily carry out searches of a person’s home, person and belongings. These were equivalent to general and vague search warrants, allowing agents of the Crown to basically rummage through all of a subject’s possessions, without having to specify exactly what was being searched for. The question must be proposed: Could a search warrant be executed against a woman who is suspected of being pregnant if an officer has probable cause to believe that she might be pregnant and might be doing something that might put the life or health of the fetus in danger? Might she then be physically restrained and subjected to an intrusive search of her body to see if she is pregnant and then her body be searched for evidence of the crime of endangering the life of the unborn in some way? Or evidence of pregnancy or attempted/completed abortion in a woman suspected of being pregnant even where medical help or attention has not been sought and consented to? Might she, or even the father of the child or others close to her, be arrested and interrogated or subpoenaed as witnesses in a court of law against the woman or anyone else charged as being connected with the “crime?”

If a fetus is legally considered to be a “person” under the Fourteenth Amendment, then this is not a ridiculous question, but a realistic one. From Alabama’s “fetus lawyers” to Texas’ TRAP laws (which the Supreme Court struck down in its 2016 Whole Woman’s Health v. Hellerstedt decision[xxvii]) mandating the proper burial of fetal remains, it is hardly unreasonable that the States, if allowed, would resort to nearly any arbitrary measures in order to bypass the civil rights of their residents and oppress them. An officer of the law need only have a “reasonable suspicion” to believe that criminal activity might be afoot or that an individual is about to commit, is in the process of committing, or has just committed, a crime in order to stop and question an individual or give a quick pat-down or search of their outer garments.[xxviii] If probable cause exists, the officer may then make a lawful arrest. Could this discretionary power of officers of the law be used in an arbitrary manner against a woman and/or her partner/husband regarding pregnancy and abortion?

Today’s society is overly concerned about an individual being allowed to point the finger and accuse an individual, without trial or evidence, of wrong-doing and ruin their lives (think sexual harassment allegations) even while all the while being overly concerned with “victim’s rights.” But as the English jurist Sir William Blackstone had so famously stated, “It is better that ten guilty persons escape, than that one innocent suffer.” Most of the Bill of Rights is concerned with the protections of the accused. Living in a time where advances in science and technology have advanced to such extremes (and are only likely to advance more in the future) that the government has an increasing ability to spy on its citizens and control their every move even when they are unaware of it, upholding the Bill of Rights becomes even more paramount. Ratification of a Bill of Rights was a prerequisite to many who termed themselves “anti-federalists” (or those who were against too strong of a national government). It was a prerequisite due to the fear that lack of a Federal Bill of Rights would lead to Congress enacting laws abridging the rights of the people.

On the other hand, there is clear and convincing evidence that the Bill of Rights does not contain all of the rights due to citizens, and the Federalist fear was that if a Bill of Rights was ratified it would lead to the belief that only those rights specifically enumerated and specifically mentioned in the Constitution would be accounted for. The Ninth Amendment to the United States Constitution states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[xxix] Similarly the Fourth Amendment was adopted to redress the grievances caused by the issuance of general writs of assistance that caused widespread discontent among the colonists and were denounced by such historically famous men as James Otis.

The 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.[xxx]

To address another question- are we a civilized society? There are many things that modern Americans simply do not seem to understand. In our fights over abortion, the right to die, the barbaric nature of the death penalty, gun control legislation and the waging of war, what is lost in the discussion is the very real and often brutal reality that some legally justified killings are necessary for the freedom, welfare, prosperity, and safety of a nation and its citizens. Included among the legally justified killings that civilized society recognizes is the necessity of waging war to protect the people of a nation and secure their peace and freedom, the right to use deadly force against one’s attacker in personal self-defense by the individual or by law enforcement for self-defense and public safety, the right to pre-viability abortion, and the right of a State to execute individuals who are convicted of certain classes of dangerous and heinous crimes. The taking of human life for any reason is brutal and barbaric, no matter the circumstances that surround it. But one must ask the question: How humane is a civilization, in reality, that never allows for the taking of life under any circumstances?

Justice Kennedy delivered the opinion of the Court in the gut-wrenching 2008 case of Kennedy v Louisiana, stating, among other things, “Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule…When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint…”[xxxi]

But again a question begs to be answered: Is this an example of a “civilized society?” More directly to this point: Most American freedoms today, including the right to self-defense,[xxxii] can be traced back to the laws of England, which granted to “freemen” many rights and freedoms, though these rights and freedoms were greatly expanded upon in America. Looking back to what was in another culture long gone or in other cultures around the world holds no legal or social weight in America even if we can never wisely cast aside history’s lessons. As Justice Alito stated in his majority opinion in McDonald et al v. City of Chicago, Illinois, et al, “…we must decide whether the right…is fundamental to our scheme of ordered liberty.”[xxxiii]


[xii] A History of the Supreme Courtsupra, pp.201-202. “Peckham conception of law” refers to the legal jurisprudence of former associate justice of the United States Supreme Court Rufus Peckham, who was famous for utilizing “substantive due process” to invalidate state attempts at regulating the economy in favor of laissez-faire capitalism.

[xiii] Munn v Illinois, 94 U.S. 113, 134. (1876)

[xiv] A History of the Supreme Court, supra, p.258. Frankfurter quote from West Virginia Board of Education v Barnette, 319 U.S. 624, 665 (1943)

[xv] Ante, at 224.

[xvi] Miranda v Arizona, 384 U.S. 436 (1966); Dickerson v United States 530 U.S. 428 (2000) (Some “conservatives” such as O’Connor and Rehnquist in the majority, but this case was largely a battle between the Supreme Court and Congress)

[xvii] Gideon v Wainright, 372 U.S. 335 (1963). During the Warren Court era, decision was unanimous. Earl Warren, though never claiming to be a great legal scholar, had a way of uniting the Court to deciding major landmark decisions unanimously, such as in Brown v Board of Education of Topeka (1) 347 U.S. 483 (1954) and Brown V Board of Education of Topeka (2) 349 U.S. 294 (1955), cases outlawing segregation of the races in public schools.

[xviii] Herrera v Collins, 506 U.S. 390 (1993); Lockyer v Andrade 538 U.S. 63 (2003)

[xix] Elkins v United States 364 U.S. 206 (1960) (Another Warren Court case ruling for the rights of criminal defendants.); Weeks v United States 232 U.S. 383 (1914).

[xx] Hudson v Michigan 547 U.S. 586 (2006). (“Conservatives” on the Roberts Court vote against rights of criminal defendants, though perhaps not unjustifiably in this particular case.); Wolf v Colorado 338 U.S. 25 (1949) (Overturned by the Warren Court in Mapp v Ohio 367 U.S. 643 (1961))

[xxi] Texas v Johnson, 491 U.S. 397 (1989); United States v Eichman, 496 U.S. 310 (1990); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). (the latter decision of R.A.V. was unanimous in favor of R.A.V., while the prior cited decisions were a bit mixed, but largely with “conservative” justices voting in the minority against flag burning as protected speech.)

[xxii] Minersville School District v Gobitis 310 U.S. 586 (1940); West Virginia Board of Education v Barnette 319 U.S. 624 (1943). (Within three years the Supreme Court had reversed itself on this issue)

[xxiii] Important post-9/11 cases include Hamdi v Rumsfeld 542 U.S. 507 (2004); Rasul v Bush 542 U.S. 466 (2004); Boumediene v Bush 553 U.S. 723 (2008). (“Conservative” forces on the Supreme Court have swung wildly in these cases revolving around habeas corpus petitions by detainees in Guantanamo Bay. It is a necessity for public safety that the rights of enemy combatants and criminal defendants are not granted in excessive and unreasonable amounts, yet at the same time the rights of those accused and detained to prove their innocence and challenge illegal detentions must be upheld where reasonable.)

[xxiv] See A History of the Supreme Court, supra, Chapter 15 Watershed Cases: Roe v. Wade, 1973. Writing in the early 1990s, Schwartz had the opportunity to do interviews with the justices from the Warren and Burger court eras, as well as interviews with their law clerks, and takes readers behind the scenes on some of the most important cases from these eras.

[xxv] 410 U.S. 113 at 129-41

[xxvi] Id. at 148-49 (footnote omitted)

[xxvii] 579 U.S._

[xxviii] Terry v Ohio, 392 U.S. 1 (1968); Michigan v Long, 463 U.S. 1032 (1983); Alabama v White, 496 U.S. 325 (1990); United States v Sokolow, 490 U.S. 1 (1989). Under the “Plain Feel” or “Plain Touch” doctrine, evidence may also be seized in specific circumstances pursuant to a pat-down of the suspect’s outer garments. See Minnesota v Dickerson, 508 U.S. 366 (1993).

[xxix] U.S. Const. amend. IX.

[xxx] U.S. Const. amend. IV.

[xxxi] 544 U.S. _

[xxxii] According to Blackstone, common law required the citizen to first “retreat to the wall” before using deadly force against one’s fellow citizen, but in the early 19th century America, a new standard of having a “reasonable fear” for one’s life became the new standard after the murder trial where a jury acquitted Thomas Selfridge of the charge of the murder of Charles Austin, accepting the defense’s self-defense claim. For an overview, see Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (1st. ed. 2006).

[xxxiii] 561 U.S. 742 at 767 (2010). (Citation omitted, emphasis in original).

Shift to the Right (Part 1 of 3): Introduction/The Anti-Feminist Possibilities of Laissez-Faire

(PDF of full article here)

 

Introduction to the Article

Sometimes I have long said that I don’t want to do this. I’m just a simple girl. No matter what I may feel in my heart, my writings are but a drop in the ocean compared to all the writings by those who are “somebody” in this world. A mere drop of water, barely even enough to so much as affect a wave, what could I ever possibly do? And I don’t know the answer to that. I’ve been depending on a husband since I was nineteen years old. I don’t even so much as have a single credible job reference to my name. I had asked fate, asked of God himself (yes, I use the masculine form here) why do I even exist in these times? I don’t belong in this world. My heart, my mind, it just can’t keep pace with the crude, vulgar, egalitarian ways of modern society. I was born in the wrong century. I don’t read blogs I used to read. I don’t talk to people I used to talk to. I have removed and isolated myself from the world I once belonged to, feeling as though that world no longer held my heart. My heart is pure and cannot compromise. I’m old-fashioned, gentle, feminine. I don’t look, think, nor act like the modern female. People have looked at me- women mostly- like I’m crazy in some form. Shocked is what they are because they’ve isolated themselves from their femininity to adhere to modernity and what the society says a woman should be.

But I never wanted to be a man. I couldn’t live up to that drive to achieve or compete. That’s not what’s written on my heart. I never wanted to get rid of the blood, the pain, the weakness, softness, gentleness. But knowing what was written on my heart when I was so young and innocent, then God had given me a husband to protect me. Have I ever regretted this? No. I find myself terrified sometimes at my own dependence and helplessness it’s true. I can’t deny that. But there is nothing better. I spent the most vulnerable years of my life not on some college campus having drunken hookups but rather with one man, my husband. Having no independent income, I was bound to him, often in frustration and sometimes even anger, but I was always taken care of and lived with such love and passion. Experiencing the full force of feminine passion, I can say that both my body and spirit are more sensitive than what a man’s is. There is no better life than that love.

I guess I have found myself more than once constantly asking why I’m even here. Why me? was the backbone of all my memoirs. I don’t want to write, yet fate dropped Constitutional law and history books in my lap over and over and said “read.”

I said, “I don’t want to do this anymore. I’m disgusted with the ways of the world. I want nothing more than to wash my hands of all of it.”

Yet fate said, “Press on.”

 My chest and back constrict with fiery pain, my head throbs, I haven’t slept in days before I began writing this; aches and pains intermittently ravage my upper body. Months ago, I said, “I don’t know if I’ll get up in the morning.”

Yet fate said, “You’ll get up.”

Finally, I said, “I never want to write again. It’s pointless and hopeless.”

Maybe fate would leave me alone this time, yet that didn’t happen. Never in my life has this happened to me. Never has such agitation lasted for more than a day, two at most. Yet, on day fifteen living on three to four hours of sleep I finally said, “OK. I’m listening.” I don’t suppose fate cares what one feels or what one wants. It only cares about its own goals, recruiting and using who it wills. I didn’t know what I could possibly say or write, but in the middle of the night I knew there was something. As is usually the case, the outline eventually forms in my mind.

What is it I feel in my heart? What is written within? Despite the overwhelming feminist indoctrination of society- with “conservatives” leading the way in female empowerment and gender-blending ideology just as much as the Left- if the United States Senate (and yes, it is the Senate, not the president, who gets the final say in placing judges on the Federal courts[i]) hands to the people another “conservative” Supreme Court justice, it might in actuality hold the key to the entire undoing of feminism. So, while everyone is focused on the “abortion debate” as regards the nomination of Federal judges (of which I would like to briefly return to in the end here as it all ties in, despite having written extensively on the subject already)- with “conservative” women leading the way- as is usually the way in life as in law, actions often have completely unintended consequences that are not always apparent at the outset.

So, fate pushed and prodded me, what I must say and what I must write. So now for truth in history, for freedom, and for the deepest feelings of my heart, maybe fate has its purpose. Whispering in my ear, fate has guided me to what I know that I must say and write.

The Anti-Feminist Possibilities of Laissez-Faire

Perhaps first and foremost of all possibilities could be the ability for traditionalists to use the “conservative” belief in so-called limited government and free market ideals to advantage. During the Supreme Court’s laissez-faire era of the late 19th to early 20th century (up to the New Deal legislation), the Court struck down state laws left and right that attempted in any way to regulate the economy or infringe upon the “liberty of contract” as guaranteed by the United States Constitution. Of course, some legislation was upheld where women as a group were concerned, deeming that women were still in need of protections in some way, such as in the United States Supreme Court case of Muller v State of Oregon[ii] in 1908. From the beginning with cases such as Allgeyer v. Louisiana in 1897[iii] and Lochner v New York[iv] in 1905, the Court had invalidated countless attempts of Congress and the states to regulate working hours, wages and other aspects of the economy. Holding that corporations were “persons” under the Fourteenth Amendment, any violations on the right of workers or employees to contract with one another were struck down as infringements upon personal liberty and private property rights.

With the emergence of the welfare state in the late 1930s the “Lochner Era” or “Laissez-Faire Era” officially ended, though many libertarians and “conservatives” still believe in free enterprise and are firmly against the redistribution of wealth. Obviously, it is necessary for the “liberal” wing of the Supreme Court to begin to die out for all of the changes of the mid-20th century to die out along with it. With a Supreme Court majority in favor of Liberty of Contract, employers would be allowed to legally discriminate in hiring and pay once again. What this could essentially mean, of course, is that ultimately traditional gender roles would be given the chance to return to society as social custom, as well as supply and demand, could then dictate market forces as opposed to affirmative action and Federal anti-discrimination legislation.

In the mid-1990s, the Rehnquist court had begun, for the first time since The New Deal era, to rule against Federal power in favor of state’s rights or limited government, beginning with such cases as United States v Morrison[v]and United States v Lopez[vi]. If such a trend were to continue, and the “liberal” wing of the Supreme Court dies out, it could also pave the way for the striking down of other Federal legislation as Unconstitutional if a majority of the justices were to rule that Congress lacked the authority under the Commerce Clause or the enforcement provision[vii] of Amendment Fourteen of the United States Constitution to enact such statutes. A more “conservative” majority on the Supreme Court would also be more prone to overturn such cases as Roe v Wade[viii] and Obergefell v. Hodges,[ix] and, with a continuing shift away from Federal power and the welfare state in favor of free enterprise, state’s rights, and limited government, Federal legislation such as The Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Title IX (Public Law 92-318), the various revisions of the Violence Against Women Acts, and the Lily Ledbetter Fair Pay Restoration Act might also begin to be called into question.

Disgusted I am, of course, with the “conservatives” of today’s era, who turn as much of a blind eye towards the differences between the sexes. However, this might be the one true chance in history to take advantage of current events and the public’s blind fixation on the abortion and immigration debates to take advantage of what else could be done here. All but a few cases that come up to the Supreme Court begin as lawsuits in the lower state and Federal courts, and it would undoubtedly take a society believing in traditional gender roles again to challenge women’s lib-era politics, and for a case to eventually wind up before the Court, and feminist legislation could begin to be struck down left and right, affecting a sort of revolution. There’s only so far the agenda of homosexuality and working mothers and overall “gender equality” can truly be pushed before things begin to fall apart. If Title VII and other Federal legislation aimed to outlaw discrimination against women, mothers, and pregnant women is deemed to be an Unconstitutional infringement of the Liberty of Contract and unreasonable usurpation of power by the Federal Government, and society has begun to shift away from feminism and its social agenda (which has run its course to be nearly complete by now), it could open the chance for private and public employers to be allowed to legally do such things as refuse to hire a married woman or a mother with young children.

 Employers would be free to legally favor males in hiring and pay, if such employers (and ultimately the beliefs of society overall) began to shift to view males as more reliable and better suited to specific jobs. Without abortion or the welfare state to fall back on, the connection between sex and childbearing and the necessity of marriage would begin to reconnect and the responsibility would ultimately have to, of necessity, shift to fathers to provide for women and children. With arbitrary Federal anti-sex discrimination knocked down as Unconstitutional and employers free to refuse to hire married women or mothers without fear of penalty or social ostracism, the laws themselves could also be changed one by one at the state level to reinforce traditional rights and responsibilities between the sexes within marriage (especially if the Court overturns its 2015 decision in Obergefell). Without a welfare state, without abortion, without affirmative action or subsidized daycare, there would be little choice but for women (in particular mothers) to turn to husbands to provide. It would also mean that society, state legislatures, and the courts would begin to take the legitimacy of children seriously as well, as there would be no buffer but marriage to protect a woman who bears an illegitimate child (and there would be even greater stigma attached to the fathers who abandon them). Especially if “gay marriage” is called into question it would mean that society overall still believes that the law should make at least some distinctions based upon sex.

While Republican women are undoubtedly the most feminist, they don’t seem to connect real well that their policies could actually be the complete undoing of their “empowerment.” There seems to be some evidence that the power of women in the Republican party is declining as well, so perhaps society will see less of these annoying women in the future. Perhaps even to my own mind it did not seem to be the way at first, but even though today’s “conservatives” are hardly traditional in any sense of the word, a more “conservative” shift in society could nonetheless pave the way for traditional gender roles and traditional marriage (true traditional marriage, with male responsibility as providers attached to it) to return once again to society.

The general public generally forgets, or perhaps simply doesn’t understand, just how many cases were brought and heard before the Supreme Court within such a short period of time striking down nearly all state and Federal laws that would treat the sexes differently.[x] The legacy of the Warren and Burger Court eras upholding the legal equality of the races and sexes and expanding the rights of criminal defendants was, in the words of former Supreme Court Justice Abe Fortas, “…the most profound and pervasive revolution ever achieved by substantially peaceful means.”[xi] Even if there is no “conservative takeover” to truly happen in the near future, extreme liberalism will probably die a natural death in time anyway as it is simply not sustainable. Sometimes social revolutions sweep in quickly in society due to the current needs and demands of society and the pressing social issues of the times. There is no reason why such a thing could not still happen today, only this time reversing feminist- era politics nearly in their entirety over the coming years and decades.

As well, society should also expect that shifts of this magnitude in the overall social fabric of society will come with backlash- possibly severe backlash. Severe, bloody civilian rioting (which has already been seen in recent years) and even a form of civil war cannot be ruled out. With the concurrent experimentation of society of placing females in military combat and other traditional positions that require the strengths and abilities that males overwhelmingly possess (that females generally do not), females would also be more likely to be seen as a liability in these fields, thus perhaps being booted out of them entirely once again. With no abortion- possibly even restrictions on birth control- no affirmative action, no welfare state and no watered-down standards in the military or the police forces, the social and legal fabric would quickly shift as males would naturally rise ahead of females in these fields. In such a hypothetical- though by no means implausible- scenario, the (mostly good) social consequences would be enormous.

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[i] “…He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Const. art. II, § 2.

[ii] 208 U.S. 412

[iii] 165 U.S. 578

[iv] 198 U.S. 45

[v] 529 U.S. 598 (2000). (The Supreme Court in this case struck down specific provisions of the Violence Against Women Act of 1994 as exceeding Congress’ Constitutional authority under the Commerce Clause).

[vi] 514 U.S. 549 (1995). (Supreme Court case striking down the 1990 Gun-Free School Zones Act as exceeding Congress’ authority under the Commerce Clause of the Constitution.)

[vii] “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const. amend. XIV, § 5.

[viii] 410 U.S. 113 (1973)

[ix] 576 U.S. _ (2015). (Supreme Court case mandating that all U.S. states recognize same-sex marriage as a “Constitutional right.”)

[x] See Mississippi University for Women v. Hogan, 458 U.S. 718 (1982); Weinberger v. Weisenfeld, 420 U.S. 636 (1975); Roberts v. United States Jaycees, 468 U.S. 609 (1984); Orr v. Orr, 440 U.S. 268 (1979); Reed v. Reed, 404 U.S. 71 (1971); Taylor v. Louisiana, 419 U.S. 522 (1975); Sugarman v. Dougall, 413 U.S. 634 (1973); Graham v. Richardson, 403 U.S. 365 (1971); Trimble v. Gordon, 430 U.S. 762 (1977); Craig v. Boren, 429 U.S. 190 (1976)

[xi] Bernard Schwartz, A History of the Supreme Court, p.334 (4th ed. 1993). Quoted from Fortas, in The Fourteenth Amendment Centennial Volume 34 (Schwartz ed. 1970).

The Rule of Law

Did you vote for the president as a result of the political “issues” of the day? Did you vote for him because you are “pro-life” or pro-Second Amendment? But did you know that the president doesn’t actually control these issues? Nearly every president in history has campaigned on a promise of “hope” or “change”- but did they deliver? Do you hate a president you once endorsed because he didn’t deliver on his promises? But perhaps he never delivered on those promises, not because of some flaw or malicious intent, but rather simply because he can’t.

By far and large, apart from all of the other branches of government, the Congress was designed to be the most powerful branch of the Federal Government, holding the ability to even strip the other branches of government of their power. Congress may limit the jurisdiction of the Federal courts (including the Supreme Court) for whatever reason it chooses, or if Congress simply feels the Court(s) has/have gotten out of hand and run amok too far into the arena of judicial activism, control and limit the number of justices that are to sit on the Supreme Court, abolish all of the inferior Federal courts beneath the Supreme Court and pass legislation to ordain and establish an entirely new system of Federal courts as well as outline their jurisdictional boundaries. Congress may yank the purse strings on a rogue president thereby denying him the funds he needs to carry out any operations, completely ignore him if he gets too belligerent, override any of his attempts to veto legislation that is passed and require him to cease any military operations or otherwise give a full account of his actions to Congress. Congress may also impeach, convict and remove from office any Federal judge (including Supreme Court Justices), as well as the President and Vice-President, declare war on any foreign nation, coin and print money, raise and support an army- and more.

America, in a way not seen since the days of the Civil War, however, is split in two based upon party lines, with the president being placed front and center in the eyes of the people and voted into office largely on account of the issues they believe that he can change, while Congress is barely even mentioned in any scenario- despite wielding all the power behind the scenes. The jurisdiction of a rogue Federal court can be stripped and a rogue president can be put in his place. A united- and determined- Congress, on the other hand, would be virtually unstoppable. But does the average citizen truly know how important and powerful the United States Congress truly is? Do they know, in the words of Woodrow Wilson himself, that the “Senate always has the last word?”

I am an independent, sitting somewhere on the fence of the political spectrum, but I do not vote. I do not vote for several reasons, the forefront of all of them being that I simply do not believe in the vote for women[i], because I believe that men should be taking care of women and also because I believe that it should be the purview of men alone to both have the civic rights and obligations in the arena of war and politics. With this said, I do not mention the president in this posting as a way of throwing dirt on him in an attempt to discredit him in some way on account of hating him[ii] for issues he ultimately does not have the final say over. I also realize that no amount of civics education is going to ever change the fact that democracies do not work in the long term and that the average, ordinary citizen in any country will simply never acquire the understanding of politics or deep, intellectual reasoning ability to be able to see the real issues at play behind the smokescreen. I mention the president in all of this as a way to make a point. This nation, as previously mentioned, is divided in half based largely upon political party lines and hot-button issues such as abortion, immigration, and gun rights. This is not new. Though everyone always likes to believe that new and novel ways are being devised to deprive citizens of their rights and tear down the system of government, nothing either new or novel is in actuality taking place that has not happened before throughout our history.

This nation and the rule of law has been in peril many times throughout United States history- yet the nation nonetheless survived on through it all. The reason for this is that the system of government created by the drafters of the United States Constitution- that all famed “assembly of demigods”– works. This nation has pulled through various wars, rogue citizens’ militias intent on overthrowing the established government, violent warfare between citizens and a nation so split in two that half of the states ignored the established government to completely secede from it entirely, thereby refusing to acknowledge the superiority of the Federal government to preempt State action. Consider the words, below, of Abraham Lincoln in his special address to the United States Congress on July 4, 1861. On the outset, history must be given here that the rule of law was not being followed by the nation’s citizens, the Southern and border states were rebelling, and Lincoln’s address came in part because Chief Justice of the United States Supreme Court Roger B. Taney had sent a letter to Lincoln declaring his order to suspend the writ of habeas corpus to be Unconstitutional, as only Congress had the power to suspend the writ[iii]:

…And this issue embraces more than the fate of these United States. It presents to the whole family of man the question whether a constitutional republic, or democracy--a government of the people by the same people--can or can not maintain its territorial integrity against its own domestic foes. It presents the question whether discontented individuals, too few in numbers to control administration according to organic law in any case, can always, upon the pretenses made in this case, or on any other pretenses, or arbitrarily without any pretense, break up their government, and thus practically put an end to free government upon the earth. It forces us to ask, Is there in all republics this inherent and fatal weakness? Must a government of necessity be too strong for the liberties of its own people, or too weak to maintain its own existence...?

So viewing the issue, no choice was left but to call out the war power of the Government and so to resist force employed for its destruction by force for its preservation...

This would be disunion completed...It recognizes no fidelity to the Constitution, no obligation to maintain the Union; and while very many who have favored it are doubtless loyal citizens, it is, nevertheless, very injurious in effect...

This authority [suspending habeas corpus] has purposely been exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition that one who is sworn to "take care that the laws be faithfully executed" should not himself violate them... The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen's liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated? To state the question more directly, Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it? It was decided that we have a case of rebellion and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power; but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion...Whether there shall be any legislation upon the subject, and, if any, what, is submitted entirely to the better judgment of Congress...

The forbearance of this Government had been so extraordinary and so long continued as to lead some foreign nations to shape their action as if they supposed the early destruction of our National Union was probable. While this on discovery gave the Executive some concern, he is now happy to say that the sovereignty and rights of the United States are now everywhere practically respected by foreign powers, and a general sympathy with the country is manifested throughout the world...

In a word, the people will save their Government if the Government itself will do its part only indifferently well...

It might seem at first thought to be of little difference whether the present movement at the South be called "secession" or "rebellion." The movers, however, well understand the difference. At the beginning they knew they could never raise their treason to any respectable magnitude by any name which implies violation of law. They knew their people possessed as much of moral sense, as much of devotion to law and order, and as much pride in and reverence for the history and Government of their common country as any other civilized and patriotic people. They knew they could make no advancement directly in the teeth of these strong and noble sentiments. Accordingly, they commenced by an insidious debauching of the public mind. They invented an ingenious sophism, which, if conceded, was followed by perfectly logical steps through all the incidents to the complete destruction of the Union. The sophism itself is that any State of the Union may consistently with the National Constitution, and therefore lawfully and peacefully, withdraw from the Union without the consent of the Union or of any other State. The little disguise that the supposed right is to be exercised only for just cause, themselves to be the sole judge of its justice, is too thin to merit any notice...

This sophism derives much, perhaps the whole, of its currency from the assumption that there is some omnipotent and sacred supremacy pertaining to a State--to each State of our Federal Union. Our States have neither more nor less power than that reserved to them in the Union by the Constitution, no one of them ever having been a State out of the Union...

Having never been States, either in substance or in name, outside of the Union, whence this magical omnipotence of "State rights," asserting a claim of power to lawfully destroy the Union itself? Much is said about the "sovereignty" of the States, but the word even is not in the National Constitution, nor, as is believed, in any of the State constitutions. What is a "sovereignty" in the political sense of the term? Would it be far wrong to define it "a political community without a political superior"? Tested by this, no one of our States, except Texas, ever was a sovereignty; and even Texas gave up the character on coming into the Union, by which act she acknowledged the Constitution of the United States and the laws and treaties of the United States made in pursuance of the Constitution to be for her the supreme law of the land. The States have their status in the Union, and they have no other legal status. If they break from this, they can only do so against law and by revolution. The Union, and not themselves separately, procured their independence and their liberty. By conquest or purchase the Union gave each of them whatever of independence and liberty it has...

This relative matter of national power and State rights, as a principle, is no other than the principle of generality and locality. Whatever concerns the whole should be confided to the whole--to the General Government--while whatever concerns only the State should be left exclusively to the State. This is all there is of original principle about it. Whether the National Constitution in defining boundaries between the two has applied the principle with exact accuracy is not to be questioned. We are all bound by that defining without question...

As a private citizen the Executive could not have consented that these institutions shall perish; much less could he in betrayal of so vast and so sacred a trust as these free people had confided to him. He felt that he had no moral right to shrink, nor even to count the chances of his own life in what might follow. In full view of his great responsibility he has so far done what he has deemed his duty. You will now, according to your own judgment, perform yours. He sincerely hopes that your views and your action may so accord with his as to assure all faithful citizens who have been disturbed in their rights of a certain and speedy restoration to them under the Constitution and the laws…

…And having thus chosen our course, without guile and with pure purpose, let us renew our trust in God and go forward without fear and with manly hearts.

ABRAHAM LINCOLN.

Lincoln had acknowledged in his address that he had “been called upon to “‘take care that the laws be faithfully executed’ and not himself violate the laws.”[iv] The president is not a lawmaker; his job is rather, as the very name of the branch he heads implies, to enforce the law[v]. Notice also that Lincoln in the above scenario did not reply to Taney directly but rather called Congress into a special session to address Congress personally to explain his actions and properly seek Congressional approval (as soon as was safely possible to do so). While the Supreme Court may hand down decisions, it ultimately has little power to enforce them.

Right now something akin to what is stated above can be seen in society- the rebellion of the states, the Supreme Court refusing to reopen cases regarding issues recently decided upon. Now the Supreme Court may refuse to pick up a case for a number of reasons (it does not have to say but rather can dismiss petitions for certiorari or appeal without comment), but sometimes the Court will refuse to hear a case solely because it does not wish to create new precedent during a sensitive time where the nation is either at war (and civil liberties will naturally be restricted beyond normal boundaries) or because the nation is undergoing a form of political upheaval where the Court’s decisions are either being ignored or the rule of law is not being followed. Despite the Supreme Court’s recent rulings, the States are nonetheless passing legislation in defiance of Supreme Court case law and they are largely doing so under the pretense that the current president will simply not enforce the laws that he or his political party doesn’t like. In other words, the States (most all of which are curiously Southern) are passing legislation because they believe they have a president who is “on their side” in a rebellion of sorts against the established order.

Lincoln’s aim was to preserve the Union and the rule of law. Though many in the Union were debating simply allowing the Confederate States to secede peacefully, history teaches that the Confederate force’s attacks on Fort Sumter started the war, and Lincoln, whose entire presidency was overshadowed by war, took the actions necessary to faithfully enforce the nation’s laws, preserve the spirit of law and values embedded in the Constitution and preserve the Union along with it. Although he ended up being the final casualty in the bloodiest war to be fought on American soil, the Union was nonetheless saved, the Rebel States and their citizens welcomed back to the Union, given a permanent place in the nation’s history, and the country moved on. The Constitution was amended to protect civil liberties. The checks and balances implemented by the Framers from the beginning worked, and the rule of law prevailed.[vi]

But what happens if the system stops working? The Supreme Court may hand down decisions, but it cannot enforce them. The law is the law (although it most certainly is not always just and there are many laws that should, in fact, be struck down and new legislation crafted to overrule those laws), but what if the President refuses to enforce it or follow it? Congress may stop him, compel him through various means or pass legislation to address any grievance or serious issue that society faces, but what if Congress, split in two on account of the country’s division, is too weak to act? If Congress cannot act, the Executive must make quick and decisive action to save the Union and rule of law- but what if he won’t? What if he- and a majority of his party- believe he himself is the law?

I will make a summary here, and that summary is that there are too many people making decisions. America was created as a Republic. It was left to the individual states to decide how the electors of the Electoral College should be chosen. It was left to Congress to make the laws, an independent judiciary, set apart from popular opinion, to wisely interpret their legality and a single unitary executive– at least partially at the command of Congress- to enforce them. But what if the president doesn’t believe in an independent judiciary[vii] and political upheaval, civilian rioting and ultimately war cause the civil courts in their entirety to vacate and cease to function? The question is, what happens then? Nothing lasts forever. The very fact that the United States Constitution has held intact for over two centuries is a world record, but what would succeed it? Democracies always commit suicide in the end, because it is a fact of life that majority rule cannot for long uphold the rule of law nor can the majority of the citizens of any given population truly sit in reasoned judgement on the issues and reason rationally about them. As I have always said, there’s a reason why the number of citizens in any given population will always far outnumber the amount of wise judges-who will always be few in number.

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[i] I have a tag titled “the vote” on this site, to be found here https://whatswrongwithequalrights.wordpress.com/tag/the-vote/ where I talk about the vote for women in numerous postings, in all of which I have rejected the idea of female suffrage on grounds explicitly stated. In particular my former posting Thoughts on Coverture, Suffrage, Chivalry, Patriarchy and the Natural Order https://whatswrongwithequalrights.wordpress.com/2014/05/10/thoughts-on-coverture-suffrage-chivalry-patriarchy-and-the-natural-order/ says it all the best. More than anything, it is my belief that the involvement of women in politics and women’s “advancement” is part of the problem of this country’s division. I also should note that Republican women are by far the most feminist in my opinion, only sparring with feminists on the other side of the political spectrum as regards abortion politics yet hardly anywhere else. Far from making things better for women, the only thing that I have yet to see is women engaging in war against other women while men simply become passive bystanders, emasculated with victim complexes and a fear, hatred and distrust of women in general. I propose that the relations between the sexes in the modern era are part of the problem as to why the rule of law is ultimately breaking down and why the checks and balances in the American system of government are something that society can no longer take for granted.

[ii] I’ve talked about Trump before and how I am not a fan, but I simply understand too much about the inner workings of the law and political system to bother to get into any kind of “hot debate” over the president- no matter who holds office. https://whatswrongwithequalrights.wordpress.com/2018/02/21/the-appearance-of-impropriety/

[iii] This issue is explored in depth more fully by two books by the former late Chief Justice of the United States Supreme Court William H. Rehnquist: See generally, William H. Rehnquist, All The Laws But One, Civil Liberties in Wartime (Vintage, 1998); William H. Rehnquist, The Supreme Court (Vintage, 2001).

[iv] Quoted from The Supreme Court, supra, p. 67.

[v] See Supreme Court case Youngstown Sheet & Tube Company v. Sawyer 343 U.S. 579 (1952). This case also demonstrates the remarkable way the rule of law still works when Truman complied with the mandates of the Supreme Court. This and other instances in United States history showcase the brilliance of the “checks and balances” built into the system of government and its remarkable ability to withstand the test of time. See also The President and the Snowflakes https://whatswrongwithequalrights.wordpress.com/2018/04/17/the-president-and-the-snowflakes/

[vi] There was rebellion and Congress used its remarkable powers to coerce the rebel states to fall in line with its mandates, from denying representation to the states who refused to comply, to using its Enforcement Powers https://www.heritage.org/constitution/#!/amendments/14/essays/175/enforcement-clause to enforce the Civil Rights Act of 1866 against the South. The fact that the Reconstruction Amendments were largely passed despite Southern resistance (and even resistance from president Andrew Johnson himself) also shows the inherent powers of the Legislative Branch of the Federal Government whenever it is determined and united on an issue. https://www.history.com/topics/black-history/black-codes ; https://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html

[vii] See Preserving the Courts https://protectdemocracy.org/preserving-courts/ for discussion about current president Donald Trump and former presidents who have defied the Supreme Court on the preservation of an independent judiciary.