New Scalia book: Landmark Supreme Court decision in 1942 expanded Commerce Clause “beyond all reason”

posted at 8:42 pm on June 18, 2012 by Allahpundit

Via TPM, which is aghast at the possibility that the ObamaCare bomb that’s set to drop later this week or next might be even more powerful than Court-watchers have anticipated. Right now people are expecting the judicial equivalent of a grenade aimed squarely at the mandate, but depending upon how the Court sees the severability issue, there’s a chance that we’ll see a cruise missile that takes out the entire statute.

But what about something bigger? What about a Commerce Clause atomic bomb?

Justice Scalia writes, for instance, that he has little use for a central precedent the Obama administration has cited to justify the health care law under the Constitution’s commerce clause, Wickard v. Filburn.

In that 1942 decision, Justice Scalia writes, the Supreme Court “expanded the Commerce Clause beyond all reason” by ruling that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.”…

Justice Scalia’s treatment of the Wickard case had been far more respectful in his judicial writings. In the book’s preface, he explains (referring to himself in the third person) that he “knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here.” Some inconsistencies can be explained by respect for precedent, he writes, others “because wisdom has come late.”

TPM notes, quite correctly, that Scalia relied in part on the Wickard decision for his concurrence in the awful, awful Raich case that allowed the feds to regulate marijuana grown for one’s personal use under the auspices of “interstate” commerce. That was seven years ago; evidently he’s had quite the change of heart about the Commerce Clause since then. I wonder why.

Anyway, about that atomic bomb. It’s not breaking news that Scalia is leaning hard against ObamaCare’s mandate: He was the most vocal opponent of the statute during oral arguments, at one point lecturing Obama’s hapless Solicitor General Donald Verrilli about enumerated powers. His vote to strike it down seems a foregone conclusion. What’s more tantalizing, per the passage in his book about Wickard, is the possibility that he might call for the Court to more broadly revisit its Commerce Clause jurisprudence starting with the Roosevelt-era cases that established the precedent that Congress’s commerce power is more or less limitless. Which brings us to the atomic bomb scenario: How many justices would join him on that? It’s no stretch to think Thomas might. What about Alito and Roberts? If five justices signed onto the idea of overturning Wickard, the scope of federal regulatory power would contract dramatically. It would be a true judicial earthquake, with aftershocks far beyond health care.

The odds of that happening are upwards of 1,000 to one, I’d guess, simply because Anthony Kennedy seemed torn about the mandate at oral argument. It’s more likely that we’ll see an opinion affirming broad Commerce powers for Congress but drawing a fine line to explain why the mandate, specifically, went too far. The question isn’t whether there’ll be five votes for a broad rethink on the Commerce Clause this time, then, it’s whether there’ll be two or three or maybe even four votes to move the Overton window and set things up for a broad rethink down the road if/when Romney wins the election and gets to replace him with a bolder justice. In fact, if you do see three or four votes to get rid of Wickard this time, expect the Commerce Clause to soak up vastly more time during Supreme Court confirmation hearings going forward. It’ll rival abortion for the amount of attention it gets, as well it should: The policy implications if the Court reshapes the Commerce Clause are much wider than if it overturns Roe.

For more on how dramatically the Overton window has moved already, read this piece by lefty Kevin Drum. You won’t agree with his conclusion but he’s right that it would have been hard to imagine the Court cracking down on Commerce this hard after the Raich case. Exit question: Is Juan Williams right that public faith in the Court will be shaken if it dumps ObamaCare? Maybe among Democrats. But how about among Republicans and independents?


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If those judges had any respect for the Constitution it would be 9-0 to strike the whole thing down.

LevinFan on June 18, 2012 at 9:47 PM

Agreed, not to mention the horrifying fact that NONE of the morons in congress even read the bill before voting on it. That, in and of itself, is all the justices need to cite before striking it down.

labrat on June 19, 2012 at 10:14 AM

Rolling back Wickard v. Filburn would be a huge change. That’s when government went from expanding around the margins to intruding over every aspect of our lives.

The idea that Uncle Sam can tell a farmer what to grow on his own farm, for his own use, was always wrong. But the courts ruled in Uncle Sam’s favor. Reversing that would take people’s lives out of the hands of government.

hawksruleva on June 19, 2012 at 10:19 AM

But what about something bigger? What about a Commerce Clause atomic bomb?

We’re not that lucky.

OhioCoastie on June 19, 2012 at 10:37 AM

The laws that would be overturned would rock the nation, and you’d probably have the left considering revolution.

MadisonConservative on June 18, 2012 at 9:55 PM

Naw, just tell ‘em pot has been legalized and they will be too lethargic to do much. Besides what will they use for ammo? bongs and high calorie drinks?

Bradky on June 19, 2012 at 10:37 AM

Naw, just tell ‘em pot has been legalized and they will be too lethargic to do much. Besides what will they use for ammo? bongs and high calorie drinks?

Bradky on June 19, 2012 at 10:37 AM

You’re talking to someone who has both pot and thousands of rounds in their home…and I’m not alone. Seriously, the whole “pothead” stereotype is just that. Most that I know are either pursuing advanced degrees in scientific fields or *shudder* active Ron Paul supporters, and the latter tend to be strong Second Amendment lovers.

MadisonConservative on June 19, 2012 at 10:46 AM

Naw, just tell ‘em pot has been legalized and they will be too lethargic to do much. Besides what will they use for ammo? bongs and high calorie drinks?

Bradky on June 19, 2012 at 10:37 AM

You’re talking to someone who has both pot and thousands of rounds in their home…and I’m not alone.

MadisonConservative on June 19, 2012 at 10:46 AM

BWAHAHAHAHAHA!

Now that is just pure ownage.

MelonCollie on June 19, 2012 at 11:01 AM

You’re talking to someone who has both pot and thousands of rounds in their home…and I’m not alone. Seriously, the whole “pothead” stereotype is just that. Most that I know are either pursuing advanced degrees in scientific fields or *shudder* active Ron Paul supporters, and the latter tend to be strong Second Amendment lovers. MadisonConservative on June 19, 2012 at 10:46 AM

Well some friendly advice, you had better rid your home of one or the other because if you get busted for weed and you have guns and ammo in the house there are all kinds of extra nightmares you’ll be subject to beside just the weed charges.

Akzed on June 19, 2012 at 11:16 AM

And she loved to cite Wickard. Heh.

Wethal on June 18, 2012 at 9:08 PM

I remember reading Wickard in Con Law. Even in my naive youth I thought it was one of the worst opinions ever written and it’s expansion of the power of the Federal Government sent a chill up my spine. I was dating a democrat then. Thankfully, reading that case helped me solidify my conservative bent and I haven’t looked back since. Who’d a thunk it? A conservative trial lawyer. (Defense, mostly, so everyone can stop gaping.) ;)

totherightofthem on June 19, 2012 at 11:19 AM

I remember reading Wickard in Con Law. Even in my naive youth I thought it was one of the worst opinions ever written and it’s expansion of the power of the Federal Government sent a chill up my spine. I was dating a democrat then. Thankfully, reading that case helped me solidify my conservative bent and I haven’t looked back since. Who’d a thunk it? A conservative trial lawyer. (Defense, mostly, so everyone can stop gaping.) ;)

totherightofthem on June 19, 2012 at 11:19 AM

That and Kelo. It would be very impressive if Wickard got revisited.

talkingpoints on June 19, 2012 at 11:34 AM

While they are at it, strike down Social Security. It is a life-long scheme/contract I was forced into as a baby and had no choice in the matter. Retirement checks are not in the Constitution.

Schwalbe Me-262 on June 19, 2012 at 11:36 AM

What I would like to see is more analysis of what will happen if only the mandate is overturned, but nothing else. I think this is the most likely scenario, because I can’t imagine Kennedy ruling in a way that would be anything other than moderate. How will Obamacare be funded if it is not by mandate? What will happen to Obamacare if there is a situation where it’s generally upheld except that it’s no longer being funded? Will we simply run up larger and larger deficits and put it on our country’s tab as we’ve been doing the last three years?
I also have a question about what will happen if Romney offers waivers to all fifty states. I would assume that the blue states would reject this waiver. In that case, half the states (the ones with the greatest population and expenses) would be using Obamacare and half not, but all the states would be forced to participate in bearing the cost. I don’t know how much that would change the situation except to create massive confusion everywhere.
Burke on June 19, 2012 at 5:48 AM

First: At a minimum the mandate should be struck down and along with it the the Law’s “guaranteed issue” and “community rating” provisions, as well, if for no other reason than Obama’s own DOJ said this should be done during the third day of oral arguments. Many are forgetting how bad the Government’s oral arguments were. They acted as if they had hardly prepared at all. The court’s response was as close to contempt as the politicians in black robes can come without excoriation by the liberal media. If the court does less than this they deserve our utter contempt and to have many states resort to “nullification.”

Second: They intentionally left out the a severability clause anyway. They should be paid back for their arrogance and horrendous oral arguments by having the Court kill the whole mess.

Third: Let those states that want to keep it, do so and see if there is any funding from the house. Such a program must be (funded by taxes and executed) uniformly across the states. The states that keep ObamaCare will not be able to get Constitutionally funded Federal money if Speaker Boehner has any concept at all about his responsibilities to “We The People.”

Falcon46 on June 19, 2012 at 11:40 AM

Akzed on June 19, 2012 at 11:16 AM

I never take the weed out of the house, and if the cops, on a whim, busted into my house, the amount I keep is decriminalized in town. I also never carry while high, which would lose me my CC license. Not that any of that matters much, since a Madison LEO has already informed me that he’d arrest me for lawfully open carrying. Either way, I’m sufficiently low-profile that I’m not too worried.

Oddly enough, the guy who got me into firearms in the first place got a month in jail for getting drunk, arguing with his brother, firing off shots in his neighborhood, fleeing the scene, and concealed carrying…two months before CCing was legalized. Now he’ll probably never get one, and he had been looking forward to CCing for years.

MadisonConservative on June 19, 2012 at 11:45 AM

Juan Williams? He’s just the male version of Debbie Wasserman Schultz…He wouldn’t know intellectual honesty if it bit him on the butt.

conservative4freedom on June 19, 2012 at 11:56 AM

Let’s amend it too: Every man is entitled to one sammich making broad.

NotCoach on June 18, 2012 at 9:21 PM

Careful. It all started with sliced bread.

Solaratov on June 19, 2012 at 12:02 PM

The question is what happens next: I think within 48 hours you will have some “anonymous” source in the administration leaking that there are serious discussions about defying the court. I think that within 48 hours you will have some left-wing loon in the House (Dennis Kucinich is a good bet) who attempts to introduce articles of impeachment against Thomas and Scalia. I think moveon will send picketers to the conservative justices houses. And finally, I think the President of the United States will continue his anti-democratic tendencies by campaigning on the legitimacy of the court. If I were them I would leave the country and not come back until October. I am sure that Kennedy and Roberts are not Owen Roberts and Charles Evans Hughes and are going to allow themselves to be intimidated.
senor on June 19, 2012 at 8:28 AM
Ok, so basically, we will then have actionable proof that this administration is truly rogue. If they do any of that, my guess is that the Ochurian candidate will lose ALL “57″ states, losing the election by a 75-25 margin.

HomeoftheBrave on June 19, 2012 at 8:47 AM

As a veteran/officer who swore an oath not to obey but to uphold our Constitution, I refuse to forget what learned Constitutional scholars like Edwin Vieira (PhD, JD Harvard) have to say about the true meaning and nature of our Constitution and Federal Government;

“Blackstone’s Commentaries was the standard legal treatise for Americans when the Constitution was written and its discussion of the law was used extensively by the Founders. The Supreme Court is not supreme – because as Blackstone pointed out “whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.”

The real Federal government consists of 5 parts, the Congress, President, Judiciary, the states, and We The People. Each of these Branches of government has the right, power, and duty, to support and defend the Constitution because Congress/Pres/judges/state officials because of the oath of affirmation from them to that effect, and We The People because the people were responsible for the “ordain[ing] and establish[ing]” of the Constitution in the first place, and ultimately control its substance through the process of amendment. Congress does exercise political supremacy because it can impeach judges and the President. But it must have its actions ratified or rejected by the electorate. Thus, ultimate supremacy lies with We The People. And supremacy must lie there: For if the principals cannot decide the meaning of their own supreme law, it is absurd to believe their mere agents can.

Madison stated in Federalist #49 that none of the three branches government can pretend to an exclusive or superior right of settling the boundaries between their respective powers.

A decision by the SCOTUS on a constitutional issue can never be law, because the test of its validity is its conformity to the very law it supposedly construes. Thus, the notion that opinions of the Supreme Court on constitutional issues are themselves self-sufficiently the supreme law of the land is simply circular and nonsensical. Courts are mere instruments of law and can will nothing. The courts decisions are binding only upon the original litigants and no one else.

The SCOTUS and its lower courts are restricted to cases of a Judiciary nature and certain “cases” and “controversies” involving certain categories of litigants. The Framers understood this limitation to preclude even and advisory, let alone a supervisory role, and specifically refused to include judges in a council of revision, the Chief Justice in a Presidential privy council, and to allow the President or Houses of Congress to request advisory opinions from the Court.

The interpretation of laws is self-evidently not “proper and peculiar” to the courts except in cases of litigation. Congress in drafting and passing laws and the president in deciding whether to sign or veto them must also consider the interpretation of the laws WRT the Constitution. We The People in judging how the representatives have carried out their duties must also consider the interpretation of the laws WRT the Constitution.

The Constitution mentions nothing about “judicial review” nor that the SCOTUS has by the Constitution had its power extended over the executive and legislative branches. And the SCOTUS has a policy of not addressing constitutional questions unless such decisions are unavoidable (which, within its extensive discretionary jurisdiction, means politically desirable).

And by statutory control of “Exceptions” to the Supreme Court’s “appellate jurisdiction both as to Law and Fact”, Congress can preclude the Court from hearing certain cases at all. Congress and the President can also pack the court so as to control the outcome of “judicial review” both before and after an issue has reached the court. Moreover, judges of the national courts can be removed from office if their conduct fails to meet the constitutional standard of “good Behaviour”, which does not require a criminal offense such as Treason or other high crimes but only Congress’s conclusion the he(she) held opinions dangerous to the nation’s well-being.

On the other side the court is impotent to render its decisions “final” in a practical sense without the assistance from one or both of the other coordinate branches of government. Suspiciously, “judicial review” came from the court itself and others have used that slender reed to prop up their case for “judicial supremacy.”

As Andrew Jackson argued, mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the states can be considered as well settled. And indeed the plausibility of constitutional review by the Congress and President, as well as the Supreme Court, is far greater than the plausibility of exclusive “judicial review.” A law passed by Congress and signed by the President has already cleared to of the three equal branches of government and the two that if in error can be removed by We The People at 2, 4, or 6 year intervals. Removing judges who We The People believe have erred requires the cumbersome procedures of impeachment and appointment of a new justice, packing (enlarging the court), restricting its appellate jurisdiction, or amending the Constitution.

However, given that the powers that be hold basically the same views, the political branches of the Federal government will support “judicial supremacy” through “judicial review” for this concept perfectly rationalizes wholesale violations of the Constitution that politicians wish to perpetrate and wholesale nullifications of powers politicians do not wish We The People to exercise.”
=====
Bottom line: The SCOTUS is really not the final arbiter of what the law is. It is a part of the Federal Government that is an agent of the people and the States. How absurd to have a branch of government deciding what the limitations of its powers are. How can anyone swear an oath to something like a “Living Constitution” whose meaning is constantly changing at the whim of 545 political elites who really are our agents. If Obama chooses to ignore the court like some other presidents have (Andrew Jackson comes to mind) then the States and We The People should apply the concept of “nullification” as presidents Thomas Jefferson and “father” of the Constitution James Madison stated it was our right to do.

Falcon46 on June 19, 2012 at 12:03 PM

Third: Let those states that want to keep it, do so and see if there is any funding from the house. Such a program must be (funded by taxes and executed) uniformly across the states. The states that keep ObamaCare will not be able to get Constitutionally funded Federal money if Speaker Boehner has any concept at all about his responsibilities to “We The People.”

Falcon46 on June 19, 2012 at 11:40 AM

I’d much rather see the entire thing struck down. If states want mandated coverage, let their state be the only one to pay for it. Federalism wins, and socialist Americans can bleed their own damned states dry.

MadisonConservative on June 19, 2012 at 12:03 PM

Oy – I meant the 17th to regain States rights. Thanks for the catch. Now who’s gonna make me a samich?

batterup on June 18, 2012 at 9:19 PM

Awwwww, man………….

You just blew melon’s dig right out of the water.

Solaratov on June 19, 2012 at 12:04 PM

The real Federal government consists of 5 parts, the Congress, President, Judiciary, the states, and We The People. Each of these Branches of government has the right, power, and duty, to support and defend the Constitution because Congress/Pres/judges/state officials because of the oath of affirmation from them to that effect, and We The People because the people were responsible for the “ordain[ing] and establish[ing]” of the Constitution in the first place, and ultimately control its substance through the process of amendment. Congress does exercise political supremacy because it can impeach judges and the President. But it must have its actions ratified or rejected by the electorate. Thus, ultimate supremacy lies with We The People. And supremacy must lie there: For if the principals cannot decide the meaning of their own supreme law, it is absurd to believe their mere agents can.

Falcon46 on June 19, 2012 at 12:03 PM

Dead on.

MadisonConservative on June 19, 2012 at 12:06 PM

Senators request live televised coverage of health care ruling from SCOTUS.

http://abcnews.go.com/Politics/OTUS/senators-request-televised-supreme-court-health-care-ruling/story?id=16603297

Philly on June 19, 2012 at 12:10 PM

No one wants to establish a theocracy or government religion. Just generate textbooks with supporting archival documentation about our true and complete history from the conservative viewpoint without the Orwellian exclusions and omissions that court historians, Hamiltonians, and government-sponsored academics have implemented.
Falcon46 on June 18, 2012 at 11:51 PM
That is surely a mouthfull.
But from what I’ve read of North, Rushdooney, wt. al. they do indeed envision a theocracy.
Gotta go. Battery on the laptop, and me, is about gone.

I do not get the attack on North on the particular issue of conservative textbooks. He is observing correctly that we have no textbooks funded by conservatives and expressing the conservative perspective that properly encompasses our true and complete history. Most conservatives get this.

Orwellian exclusions and omissions that court historians, Hamiltonians, and government-sponsored academics have implemented is exactly what has happened to form the indoctrination that now goes on in government schools including materials fed students going for a baccalaureate degree.

Conservative organizations have wasted billions of dollars fighting this and that bill being pushed by the Federal government with little result. For a couple of million we could have generated baseline written materials that could both be used to prove our case and teach our children a relatively complete history of ideas, events, and the true forces controlling them.

No conservative I know, including my former military buds, objects to this. And this has absolutely nothing to do with establishing a theocracy!

Falcon46 on June 19, 2012 at 12:17 PM

Senators request live televised coverage of health care ruling from SCOTUS.

http://abcnews.go.com/Politics/OTUS/senators-request-televised-supreme-court-health-care-ruling/story?id=16603297

Philly on June 19, 2012 at 12:10 PM

How about ‘Live from Yankee Stadium’ –
set the 9 up in the end zone…50,000 spectators…plus pay-per-view.
(And maybe have some security on the field.)

verbaluce on June 19, 2012 at 12:21 PM

Well some friendly advice, you had better rid your home of one or the other because if you get busted for weed and you have guns and ammo in the house there are all kinds of extra nightmares you’ll be subject to beside just the weed charges.

Akzed on June 19, 2012 at 11:16 AM

And of that means…get rid of the guns.

verbaluce on June 19, 2012 at 12:23 PM

Well some friendly advice, you had better rid your home of one or the other because if you get busted for weed and you have guns and ammo in the house there are all kinds of extra nightmares you’ll be subject to beside just the weed charges.

Akzed on June 19, 2012 at 11:16 AM

And more on topic, I think Thomas would at least uphold the right to carry while stoned out of your gourd.

verbaluce on June 19, 2012 at 12:24 PM

I wonder how an atomic attack on the Commerce Clause would effect Romney’s plan to allow people to buy insurance across state lines.

It is the state laws that are driving up the cost of insurance in large part.

Without state requirements even Romneycare would work.

The Supreme Court striking down the Commerce Clause would truly reform government as we know it today.

Interesting. I like Scalia.

petunia on June 19, 2012 at 12:32 PM

And more on topic, I think Thomas would at least uphold the right to carry while stoned out of your gourd. verbaluce on June 19, 2012 at 12:24 PM

What part of “shall not be infringed” do you not understand?

Akzed on June 19, 2012 at 12:43 PM

And more on topic, I think Thomas would at least uphold the right to carry while stoned out of your gourd.

verbaluce on June 19, 2012 at 12:24 PM

Or drunk. Even if you’re carrying a fully-accessorized fully-automatic AR with a grenade launcher, bayonet, and yes, even one of those cop-killing barrel shrouds. Like it says:

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.

It was written by people who realized that a free society is based on the concept of trusting all your neighbors to have arms on hand in case of foreign invasion, or in case of a tyrannical government.

Good thing we don’t have a King passing new laws on his own authority, or anything. I mean, that’d be like a bad DREAM.

MadisonConservative on June 19, 2012 at 12:54 PM

Davidk, I’m right there with you my friend and until many have this attitude nothing will change. When the country was founded, that’s the attitude people had. They were fed up. It’s nowhere near that right now. Obama could announce tomorrow, on national TV, that he’s doing away with the Constitution and the 22nd Ammendment and people would complain and whine for about a week and that would be the end of it. Nobody is willing to pay a price. Just my two cents worth.

air_up_there on June 19, 2012 at 5:06 AM

Too true, that.

Only about 3% of the people actually put themselves on the line during the first American Revolution. The rest had excuses.
Today, one would be hard-pressed, indeed, to find 3% who’d ‘walk the walk’. The rest would find “good excuses” to stay home.

Solaratov on June 19, 2012 at 12:55 PM

What part of “shall not be infringed” do you not understand?

Akzed on June 19, 2012 at 12:43 PM

I was making a joke about libertarian conservatism…nevermind.

verbaluce on June 19, 2012 at 12:57 PM

You’re talking to someone who has both pot and thousands of rounds in their home…and I’m not alone. Seriously, the whole “pothead” stereotype is just that. Most that I know are either pursuing advanced degrees in scientific fields or *shudder* active Ron Paul supporters, and the latter tend to be strong Second Amendment lovers.
MadisonConservative on June 19, 2012 at 10:46 AM

I never take the weed out of the house, and if the cops, on a whim, busted into my house, the amount I keep is decriminalized in town. I also never carry while high, which would lose me my CC license. Not that any of that matters much, since a Madison LEO has already informed me that he’d arrest me for lawfully open carrying. Either way, I’m sufficiently low-profile that I’m not too worried.
MadisonConservative on June 19, 2012 at 11:45 AM

In other words…just like Obama, if you don’t like a law (marijuana is illegal) you simply ignore it and do whatever pleases you at the moment.

Solaratov on June 19, 2012 at 1:31 PM

Falcon46 on June 19, 2012 at 12:17 PM

I appluad the reconstructionists’ desire for conservative values, but

Christian Reconstructionism’s founder, Rousas John Rushdoony, wrote in his magnum opus, The Institutes of Biblical Law: “The heresy of democracy has since then worked havoc in church and state … Christianity and democracy are inevitably enemies.” He elsewhere said that “Christianity is completely and radically anti-democratic; it is committed to spiritual aristocracy,” and characterized democracy as “the great love of the failures and cowards of life.” [11] In the book, he proposed that Old Testament law should be applied to modern society and that there should be a Christian theonomy, a concept developed in his colleague Greg Bahnsen’s controversial tome Theonomy and Christian Ethics, which Rushdoony heartily endorsed. In the Institutes of Biblical Law, Rushdoony supported the reinstatement of the Mosaic law’s penal sanctions. Under such a system, the list of civil crimes which carried a death sentence would include homosexuality, adultery, incest, lying about one’s virginity, bestiality, witchcraft, idolatry or apostasy, public blasphemy, false prophesying, kidnapping, rape, and bearing false witness in a capital case. [12] In short, he sought to cast a vision for the reconstruction of society based on Christian principles and represents the more traditionally understood approach to Reconstructionism. http://en.wikipedia.org/wiki/Christian_Reconstructionism

davidk on June 19, 2012 at 1:32 PM

Solaratov on June 19, 2012 at 12:55 PM

The number of people who actually fight in any conflict is usually a pretty small percentage. The percentage of the population that was invested in it – truly seriously invested was probably not more than 30-40%. And wherever the continental or other American units were probably even less support due to the provisioning done at the public’s expense. Of course the Tory’s had less support, but still a substantial number. Probably the single biggest group was “no opinion” – they just wanted to be left a lone.

Zomcon JEM on June 19, 2012 at 1:34 PM

Solaratov on June 19, 2012 at 1:31 PM

Yes, I smoke pot in the privacy of my home and nowhere else, so that makes me just like Obama. I also go faster than the speed limit, which makes me just like Obama. I jaywalk, which makes me just like Obama. I didn’t report the Best Buy gift card I got for my birthday on my taxes, which makes me just like Obama.

Want to make any other brilliant points?

MadisonConservative on June 19, 2012 at 1:36 PM

And more on topic, I think Thomas would at least uphold the right to carry while stoned out of your gourd.

verbaluce on June 19, 2012 at 12:24 PM

Sure, he would. /

And, no doubt, the right to drive while completely drunk.

//

Solaratov on June 19, 2012 at 1:38 PM

Want to make any other brilliant points?

MadisonConservative on June 19, 2012 at 1:36 PM

Nope. You did a fine job.

/

Solaratov on June 19, 2012 at 1:42 PM

That and Kelo. It would be very impressive if Wickard got revisited.

talkingpoints on June 19, 2012 at 11:34 AM

I’m old enough that Kelo wasn’t a comma on a page. I’d been a lawyer for almost 20 years by that point.

But, as bad decisions go, Kelo is right up there.

totherightofthem on June 19, 2012 at 1:43 PM

Or drunk. Even if you’re carrying a fully-accessorized fully-automatic AR with a grenade launcher, bayonet, and yes, even one of those cop-killing barrel shrouds. Like it says:

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.

MadisonConservative on June 19, 2012 at 12:54 PM

I didn’t mean to encourage a competition on who could come up with the most insane and extreme scenario with which to throw ‘shall now be infringed’ at.
But ok…sure.
How ‘well regulated’ should the inebriation and intoxication be?
What if technology allows one to shoot 7.62s out of their a**…shall there be no infringement upon public nudity in that case?
What if you make bullets out of broccoli..would it be the ATF or the FDA regulating that?

verbaluce on June 19, 2012 at 1:44 PM

Solaratov on June 19, 2012 at 1:42 PM

Thanks. I’m glad I could point out your stupid equivocation and spare you the indignity of having to admit that it was stupid.

MadisonConservative on June 19, 2012 at 1:44 PM

What if technology allows one to shoot 7.62s out of their a**…shall there be no infringement upon public nudity in that case?

verbaluce on June 19, 2012 at 1:44 PM

I only wish liberals were reduced to coming up with these kinds of scenarios to justify limiting the Second Amendment, because gun control laws would fall off the books by the thousand.

MadisonConservative on June 19, 2012 at 1:46 PM

If SCOTUS overturns Wickard I can die content.

Xasprtr on June 19, 2012 at 1:53 PM

I only wish liberals were reduced to coming up with these kinds of scenarios to justify limiting the Second Amendment, because gun control laws would fall off the books by the thousand.

MadisonConservative on June 19, 2012 at 1:46 PM

Ha…liberals were reduced to coming up with these kinds of scenarios?
I’d say presenting wacky hypotheticals in service to legal arguments is a pretty established tool for conservatives these days.
Seems you didn’t catch the ‘broccoli’ reference.
2 pts though for the attempt at misdirection there…crafty.

verbaluce on June 19, 2012 at 1:56 PM

Obama has been b!tch slapped by SCOTUS several times now, but is it because SCOTUS is trending towards more limited government, or is it because Obama overreach is just that much greater then past presidents?

NotCoach on June 18, 2012 at 9:11 PM

I suspect both are at play, with your second supposition leading directly to your first.

My opinion is that the overreach of Obama and the former Democrat Congressional majority in attempting to push the envelope of government powers opened up by prior SCOTUS precedent managed to only shine a light on the error of those prior decisions. Essentially, they started sliding too quickly down the slippery slope which opened people’s eyes to the fact that they were slipping down it at all, and now people are looking back up the slippery slope to try to see where they began slipping down it.

gravityman on June 19, 2012 at 2:01 PM

2 pts though for the attempt at misdirection there…crafty.

verbaluce on June 19, 2012 at 1:56 PM

Misdirection? Because I gave no actual consideration to the notion of people using their rectums as weapons? I’m sorry all over the place. Is there a point you’re trying to make, other than just mocking libertarian conservatism?

I’ll tell you this: no libertarian conservatives wanted the Assault Weapons Ban renewed, but people like Dubya, Mitt Romney, and Chris Christie sure thought it was a great idea. If you think they had the right idea, then I encourage you to push for another useless piece of legislation that served only to restrict the rights of free, law-abiding American citizens.

MadisonConservative on June 19, 2012 at 2:01 PM

I appluad the reconstructionists’ desire for conservative values, but

Christian Reconstructionism’s founder, Rousas John Rushdoony, wrote in his magnum opus, The Institutes of Biblical Law: “The heresy of democracy has since then worked havoc in church and state … Christianity and democracy are inevitably enemies.” He elsewhere said that “Christianity is completely and radically anti-democratic; it is committed to spiritual aristocracy,” and characterized democracy as “the great love of the failures and cowards of life.” [11] In the book, he proposed that Old Testament law should be applied to modern society and that there should be a Christian theonomy, a concept developed in his colleague Greg Bahnsen’s controversial tome Theonomy and Christian Ethics, which Rushdoony heartily endorsed. In the Institutes of Biblical Law, Rushdoony supported the reinstatement of the Mosaic law’s penal sanctions. Under such a system, the list of civil crimes which carried a death sentence would include homosexuality, adultery, incest, lying about one’s virginity, bestiality, witchcraft, idolatry or apostasy, public blasphemy, false prophesying, kidnapping, rape, and bearing false witness in a capital case. [12] In short, he sought to cast a vision for the reconstruction of society based on Christian principles and represents the more traditionally understood approach to Reconstructionism. http://en.wikipedia.org/wiki/Christian_Reconstructionism

davidk on June 19, 2012 at 1:32 PM

Why the name calling? And you’ve jumped to the connection of North to Rushdoony. North made an observation on the greatest mistake of conservatives. He didn’t mention Rushdoony in the commentary. This misses the point and is illustrative of the liberal strategy of the “politics of personal destruction.” And if the implication is that I might support them as enumerated above – well, I don’t.

The point is this: the undeniable and very damaging truth is that the conservative cause has not done the hard intellectual work necessary to overcome the Orwellian history offered up by liberal, progressive, statists in elementary school, high school and college history texts concerning this country’s complete history and the funding source and connections of the people who have controlled what has been written and offered.

The conservative cause has no one to blame but themselves for the lack of a single, comprehensive, fully-documented, counterbalancing history of the United States, which reflects their view of the illegitimacy of the expansion of central government.

Conservatives remain on the fringes of American social life, political life, economic life, academic life, and media life. They are growing in influence, but they are still on the fringes. The mark of their/our fringe position is not that they do not have money or power, particularly from charitable foundations like the Rockefeller, Ford, or Carnegie Foundations that have all been captured by liberals. The mark of their fringe position is that virtually nobody within the conservative movement has ever read a single book on the history of the United States that is written from the point of view of the conservative movement because, especially in the case of textbooks, they do not exist. And part of this problem is that the principles undergirding the conservative movement are in fact at war with each other

The final point was this: you can’t fight something with nothing, which is the state we find ourselves in today regarding winning the hearts and minds of the next generation of citizens or even the present one.

Falcon46 on June 19, 2012 at 2:08 PM

Misdirection? Because I gave no actual consideration to the notion of people using their rectums as weapons?

MadisonConservative on June 19, 2012 at 2:01 PM

You offered:
Or drunk. Even if you’re carrying a fully-accessorized fully-automatic AR with a grenade launcher, bayonet, and yes, even one of those cop-killing barrel shrouds

I replied in kind.
And for all your robust ‘shall not infringe’, the slippery slope takes you to personal armored tanks and missle equipped jet fighters.
And if you support that, that I applaud you for consistency.

verbaluce on June 19, 2012 at 2:24 PM

I am not decrying North’s et. al. work to inject solidly Biblical and polictically conservative worldviews into our society.

But unless they can come up with a Moses, theocracy will not work.

Christian Reconstructionism arose as an ideology among a subset of conservative Calvinists. The movement in its modern form was founded in the United States of America, popularized by Rousas John Rushdoony, in his work The Institutes of Biblical Law (1973), though to an extent it had its beginnings in the colonial governments of early New England (especially that of the Massachusetts Bay colony). Other past and present Reconstructionist leaders include Gary North (Rushdoony’s son-in-law), Howard Ahmanson, Jr., Greg Bahnsen, David Chilton, Gary DeMar, Kenneth Gentry, and Andrew Sandlin.
http://en.wikipedia.org/wiki/Christian_Reconstructionism

davidk on June 19, 2012 at 2:25 PM

hawksruleva on June 19, 2012 at 10:19 AM

That would be a dream come true. We’ve come to the point where the SCOTUS even has to argue that not buying something, like health care, is tantamount to participating in interstate commerce.

MJBrutus on June 19, 2012 at 2:27 PM

MadisonConservative on June 19, 2012 at 1:44 PM

As I said, thank you for proving my point…and owning up to your stupidity and hypocrisy.
Anything further from you vis a vis this is just you trying to get that load of hypocrisy off your back.

OT..you remind me a lot of guys in VietNam who thought it was OK to go into the bush stoned, drunk or shooting smack. They didn’t last long, either.

Solaratov on June 19, 2012 at 2:32 PM

I replied in kind.

verbaluce on June 19, 2012 at 2:24 PM

I can go out and buy exactly what I described, legally. It would be rather expensive, due largely to the laws that make automatic weapons and accessories so difficult to own, but it can be done.

You pulled an impossible notion out of your ass.

So, no, you did not reply in kind. If you don’t know anything about firearms, then don’t pretend to do so and expose your foolishness.

MadisonConservative on June 19, 2012 at 2:33 PM

As I said, thank you for proving my point…and owning up to your stupidity and hypocrisy.

Solaratov on June 19, 2012 at 2:32 PM

You didn’t make any point. You said that because I commit a decriminalized act with a maximum of a $100 forfeiture, I’m no different from Obama. I pointed out how stupid this was by also pointing out the other “illegal” acts that the vast majority of people commit on a regular basis, which, by your logic, would make the vast majority of the country “just like Obama”.

And your quip about Vietnam was jaw-dropping in its ridiculousness. I think you and verbaluce(neither of which I’ve ever seen on this site before) are just trolling for the hell of it.

MadisonConservative on June 19, 2012 at 2:36 PM

I am not decrying North’s et. al. work to inject solidly Biblical and polictically conservative worldviews into our society.

But unless they can come up with a Moses, theocracy will not work.

Christian Reconstructionism arose as an ideology among a subset of conservative Calvinists. The movement in its modern form was founded in the United States of America, popularized by Rousas John Rushdoony, in his work The Institutes of Biblical Law (1973), though to an extent it had its beginnings in the colonial governments of early New England (especially that of the Massachusetts Bay colony). Other past and present Reconstructionist leaders include Gary North (Rushdoony’s son-in-law), Howard Ahmanson, Jr., Greg Bahnsen, David Chilton, Gary DeMar, Kenneth Gentry, and Andrew Sandlin.
http://en.wikipedia.org/wiki/Christian_Reconstructionism

davidk on June 19, 2012 at 2:25 PM

Who cares about a Moses or a theocracy! That’s not the point being made. I never inferred that I was arguing for North or his allies to write a conservative history.

Conservatives who fund such an effort can choose whomever they want to do the work. And that was also North’s point.

The points are these:

1) The undeniable and very damaging truth is that the conservative cause has not done the hard intellectual work necessary to overcome the Orwellian history offered up by liberal, progressive, statists in elementary school, high school and college history texts concerning this country’s complete history and the funding source and connections of the people who have controlled what has been written and offered.

2) The conservative cause has no one to blame but themselves for the lack of a single, comprehensive, fully-documented, counterbalancing history of the United States, which reflects their view of the illegitimacy of the expansion of central government.

3) Conservatives are in a fringe position because virtually nobody within the conservative movement has ever read a single book on the history of the United States that is written from the point of view of the conservative movement because, especially in the case of textbooks, they do not exist.

4) You can’t fight something with nothing, which is the state we find ourselves in today regarding winning the hearts and minds of the next generation of citizens or even the present one.

If you have any really worthwhile criticisms try sticking to the 4 points above.

Falcon46 on June 19, 2012 at 2:50 PM

I think you and verbaluce(neither of which I’ve ever seen on this site before) are just trolling for the hell of it.

MadisonConservative on June 19, 2012 at 2:36 PM

That’s either a lie or further evidence of your stupidity…or, as likely, both.
Just go wallow in your hypocrisy, lil fella.

Solaratov on June 19, 2012 at 2:52 PM

If you have any really worthwhile criticisms try sticking to the 4 points above.

Falcon46 on June 19, 2012 at 2:50 PM

Not wanting the USoA turned into a theocracy is, IMHO, worthwhile.

And that, whether you agree or not, is their goal.

davidk on June 19, 2012 at 2:57 PM

Falcon46 on June 19, 2012 at 2:50 PM

And re: points 1-3: http://www.wallbuilders.com/

And David Barton’s been around a long time.

davidk on June 19, 2012 at 3:01 PM

A Google search on “conservative history textbooks” returns 4,470,000 hits.

davidk on June 19, 2012 at 3:04 PM

If you have any really worthwhile criticisms try sticking to the 4 points above.

Falcon46 on June 19, 2012 at 2:50 PM

Not wanting the USoA turned into a theocracy is, IMHO, worthwhile.

And that, whether you agree or not, is their goal.

davidk on June 19, 2012 at 2:57 PM

You have done it again. You are back on the Theocracy kick again. Your opinions miss every point made.

Conservatives who fund such an effort can choose whomever they want to do the work.

Stick to the points below.

The points are these:

1) The undeniable and very damaging truth is that the conservative cause has not done the hard intellectual work necessary to overcome the Orwellian history offered up by liberal, progressive, statists in elementary school, high school and college history texts concerning this country’s complete history and the funding source and connections of the people who have controlled what has been written and offered.

2) The conservative cause has no one to blame but themselves for the lack of a single, comprehensive, fully-documented, counterbalancing history of the United States, which reflects their view of the illegitimacy of the expansion of central government.

3) Conservatives are in a fringe position because virtually nobody within the conservative movement has ever read a single book on the history of the United States that is written from the point of view of the conservative movement because, especially in the case of textbooks, they do not exist.

4) You can’t fight something with nothing, which is the state we find ourselves in today regarding winning the hearts and minds of the next generation of citizens or even the present one.

If you have any really worthwhile criticisms try sticking to the 4 points above.

Falcon46 on June 19, 2012 at 3:06 PM

Just go wallow in your hypocrisy, lil fella.

Solaratov on June 19, 2012 at 2:52 PM

You haven’t demonstrated either any hypocrisy on my part, nor that you have the faintest idea what the word “hypocrisy” means. All you did was shriek “you’re just like Obama!!!” on the basis that breaking a law makes one “just like Obama”. If that’s really all you’ve got, then lol.

MadisonConservative on June 19, 2012 at 3:12 PM

A Google search on “conservative history textbooks” returns 4,470,000 hits.

davidk on June 19, 2012 at 3:04 PM

Most of the hits are not even for specific textbooks but activities, etc. Meanwhile you get 14,100,000 (can’t believe the round number) for liberal history textbooks.

And I have the book, “A Patriot’s History of the United States” and it often makes the case for leviathon government and leaves a lot out that I as a military veteran/officer who experienced it, knows ought to be included.

The guy who founded Google is a big government, statist liberal – so the classifications/hits are very suspect.

Name a textbook that you have read that fully documents conservative history – I’d like to check it out.

Falcon46 on June 19, 2012 at 3:19 PM

So, no, you did not reply in kind. If you don’t know anything about firearms, then don’t pretend to do so and expose your foolishness.

MadisonConservative on June 19, 2012 at 2:33 PM

Hey, I said ’7.62s’…doesn’t that get me any cred?
Don’t be so humorless. Yes, I know about firearms.
But I bet you know more…a lot more. Tons and tons and tons more.
But being a gun fanboy doesn’t make one an authority on all that relates to guns.
If it was expertise that was required, we’d be awaiting word on ACA from Dr. Scalia, Dr. Thomas, Dr. Breyer, etc.

verbaluce on June 19, 2012 at 3:33 PM

But being a gun fanboy…

verbaluce on June 19, 2012 at 3:33 PM

Yep, you’re a troll. Have a nice day!

MadisonConservative on June 19, 2012 at 3:37 PM

Falcon46 on June 19, 2012 at 2:50 PM

And re: points 1-3: http://www.wallbuilders.com/

And David Barton’s been around a long time.

davidk on June 19, 2012 at 3:01 PM

I have some of Barton’s books ( “The Jefferson Lies” and “Original Intent” ) and they are okay books but not comprehensive and not textbooks with supporting materials documenting and cross-referencing archival information. Edwin Vieira is a far better authority on the Constitution IHMO.

As for his book “Separation of Church and State, What The Founders Meant” I agree with what this commenter at Amazon Books observes about being careful: “However (and maybe I am not seeing something correctly) but, Separation of Church & State p.6 has three quotes that Mr. Barton uses that do not seem to match the official “Journal of the Senate” records from the same date referenced in his book for September 3, 1789.

Example #1: Mr. Barton’s quote: “Congress shall not make any law establishing any religious denomination.” The Journal of the Senate’s first version of the amendment states that Congress should not support any “one religious sect or society in preference to others.”

Example #2 Mr. Barton’s quote: “Congress shall make no law establishing any particular denomination.” The Journal of the Senate states” Congress shall not make any law infringing the rights conscience, or establishing any religious sect or society.”

It doesn’t change his very valid points, but it is very important to me (especially considering what’s at stake) that original sources are quoted accurately.”

And as Skousen and many others have noted in books on our Founding, unalienable rights and much of our law come from the Old Testament of the Bible.

Falcon46 on June 19, 2012 at 3:37 PM

MadisonConservative on June 19, 2012 at 3:12 PM

You don’t quote accurately, either.
Give it up, lil fella. You’re just digging your own hole deeper.

After all, you’re the one who has decided that, if you don’t like a law, you needn’t follow it. All I said is that that is the same sort of thinking that Obama displays. And you started ‘shrieking’ and name-calling.
I’m finding it amusing to watch you try to rationalize your behavior…so, keep on, if you must.

Solaratov on June 19, 2012 at 3:40 PM

Yep, you’re a troll. Have a nice day!

MadisonConservative on June 19, 2012 at 3:37 PM

Man, you are sensitive.
Even after my saying how much you know about guns.
But ok, discussion avoided.

verbaluce on June 19, 2012 at 3:46 PM

You don’t quote accurately, either.

Solaratov on June 19, 2012 at 3:40 PM

Now you’re arguing quoting semantics? Yep…troll. Worse, a coward that backtracks and tries to claim innocence after making outlandish, dishonest smears.

just like Obama.

(Look what I did there!)

MadisonConservative on June 19, 2012 at 3:57 PM

Solaratov on June 19, 2012 at 2:52 PM
verbaluce on June 19, 2012 at 3:46 PM

You two knuckleheads better rethink your strategy…Madison is an old timer here and has years of posts that are a 1000 times more lucid than anything you will ever post…Be Careful Grandpa Madison might take you children to the woodshed…and though he doesn’t need it I got his back…and so do a lot of others who are much more succinct in their presentation than you…just expect to get ignored and knowing that you might want to retreat back to Huffpo or Kiddie Kos playgrounds where you came from..thanks for trying though.

RedLizard64 on June 19, 2012 at 5:02 PM

RedLizard64 on June 19, 2012 at 5:02 PM

Thanks for the boost, bud…but don’t waste any more time on these dips. Anyone who talks about “gun fanboys” on a conservative site is all too transparent in their intent, and same goes for someone who derides others for lawfully following city ordinances.

MadisonConservative on June 19, 2012 at 5:30 PM

It is way past the time for the SCOTUS to overturn Wickard v. Filburn. Just like Dred Scott a bad decision should not be forever.

RZuendt on June 19, 2012 at 8:20 PM

It is way past the time for the SCOTUS to overturn Wickard v. Filburn. Just like Dred Scott a bad decision should not be forever.

RZuendt on June 19, 2012 at 8:20 PM

We need to get past the idea that the Supreme Court is the arbiter of what is constitutional and what is not. Marbury V. Madison was itself a bad ruling, and made most of the bad rulings by the Supreme Court possible since.

gryphon202 on June 19, 2012 at 10:11 PM

We need to get past the idea that the Supreme Court is the arbiter of what is constitutional and what is not. Marbury V. Madison was itself a bad ruling, and made most of the bad rulings by the Supreme Court possible since.

gryphon202 on June 19, 2012 at 10:11 PM

I’m not certain that Marbury v. Madison is a bad ruling. I would agree that SCOTUS is not necessarily the only or even the final arbiter of what is constitutional, but the question becomes, what if this were followed?

If SCOTUS didn’t act in this capacity and it was left to congress, congress’s power would have expanded far more than it has to date. For instance, Obamacare passed. It appears to me very unlikely to be repealed by congress (I doubt a vote to repeal will get by a filibuster in the Senate). So, what then?

And, if it is a simply majority vote of congress to determine what is and is not constitutional, then the interpretation of the constitution would change every few years when congress changed hands, which would undermine the legitimacy of the constitution.

I would be in favor of a super-majority vote of congress (without requiring presidential approval – i.e., no presidential veto – which would be moot anyway if you had a super-majority) to be able to overturn a SCOTUS decision. But, the reality is that getting such a super-majority would be a rare thing indeed. So, the reality would be SCOTUS would still generally be the final arbiter of constitutional interpretation.

I’m not sure what other workable system there could be. There are always going to be those who want to interpret the constitution much differently than we do – to grant unfettered power to the federal gov’t and to take away certain rights (2nd amendment, speech, religion). So, there has to be some system for settling such disputes with some sense of finality.

Monkeytoe on June 20, 2012 at 7:57 AM

I’m not certain that Marbury v. Madison is a bad ruling. I would agree that SCOTUS is not necessarily the only or even the final arbiter of what is constitutional, but the question becomes, what if this were followed?

If SCOTUS didn’t act in this capacity and it was left to congress, congress’s power would have expanded far more than it has to date. For instance, Obamacare passed. It appears to me very unlikely to be repealed by congress (I doubt a vote to repeal will get by a filibuster in the Senate). So, what then?

Monkeytoe on June 20, 2012 at 7:57 AM

You are missing the history of how our Constitution was constructed as made by constitutional scholar Edwin Vieira (PhD, JD Harvard) below. The court’s decisions were meant to be constrained only to the litigants not result in constitutional law. Congress would not be able expand its powers if the original structure of the constitution was still operating.

As Vieira states:
“Madison stated in Federalist #49 that none of the three branches government can pretend to an exclusive or superior right of settling the boundaries between their respective powers.

A decision by the SCOTUS on a constitutional issue can never be law, because the test of its validity is its conformity to the very law it supposedly construes. Thus, the notion that opinions of the Supreme Court on constitutional issues are themselves self-sufficiently the supreme law of the land is simply circular and nonsensical. Courts are mere instruments of law and can will nothing. The courts decisions are binding only upon the original litigants and no one else.

The SCOTUS and its lower courts are restricted to cases of a Judiciary nature and certain “cases” and “controversies” involving certain categories of litigants. The Framers understood this limitation to preclude even an advisory, let alone a supervisory role, and specifically refused to include judges in a council of revision, the Chief Justice in a Presidential privy council, and to allow the President or Houses of Congress to request advisory opinions from the Court.

The interpretation of laws is self-evidently not “proper and peculiar” to the courts except in cases of litigation. Congress in drafting and passing laws and the president in deciding whether to sign or veto them must also consider the interpretation of the laws WRT the Constitution. We The People in judging how the representatives have carried out their duties must also consider the interpretation of the laws WRT the Constitution.

The Constitution mentions nothing about “judicial review” nor that the SCOTUS has by the Constitution had its power extended over the executive and legislative branches. And the SCOTUS has a policy of not addressing constitutional questions unless such decisions are unavoidable (which, within its extensive discretionary jurisdiction, means politically desirable).

And by statutory control of “Exceptions” to the Supreme Court’s “appellate jurisdiction both as to Law and Fact”, Congress can preclude the Court from hearing certain cases at all. Congress and the President can also pack the court so as to control the outcome of “judicial review” both before and after an issue has reached the court. Moreover, judges of the national courts can be removed from office if their conduct fails to meet the constitutional standard of “good Behaviour”, which does not require a criminal offense such as Treason or other high crimes but only Congress’s conclusion the he(she) held opinions dangerous to the nation’s well-being.

On the other side the court is impotent to render its decisions “final” in a practical sense without the assistance from one or both of the other coordinate branches of government. Suspiciously, “judicial review” came from the court itself and others have used that slender reed to prop up their case for “judicial supremacy.”

Blackstone’s Commentaries was the standard legal treatise for Americans when the Constitution was written and its discussion of the law was used extensively by the Founders. The Supreme Court is not supreme – because as Blackstone pointed out “whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.”

The real Federal government consists of 5 parts, the Congress, President, Judiciary, the states, and We The People. Each of these Branches of government has the right, power, and duty, to support and defend the Constitution because Congress/Pres/judges/state officials because of the oath of affirmation from them to that effect, and We The People because the people were responsible for the “ordain[ing] and establish[ing]” of the Constitution in the first place, and ultimately control its substance through the process of amendment. Congress does exercise political supremacy because it can impeach judges and the President. But it must have its actions ratified or rejected by the electorate. Thus, ultimate supremacy lies with We The People. And supremacy must lie there: For if the principals cannot decide the meaning of their own supreme law, it is absurd to believe their mere agents can.

Falcon46 on June 20, 2012 at 10:05 AM

Would Justice Scalia have developed his thinking in this way without the quiet leadership of Justice Thomas?

jgrodahl on June 20, 2012 at 1:05 PM

In other words…just like Obama, if you don’t like a law (marijuana is illegal) you simply ignore it and do whatever pleases you at the moment.

Solaratov on June 19, 2012 at 1:31 PM

Everyone here, including you, is guilty of breaking laws they don’t respect.

Haldol on June 20, 2012 at 1:22 PM

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