The Supreme Court – The Final Nine

Judges and Presidents are human. The Supreme Court of the United States is the highest court in the United States. It has ultimate (and largely discretionary) appellate jurisdiction over all federal courts and over state court cases involving issues of federal law, and original jurisdiction over a small range of cases. While it determines the definition of the rule of law, it does not have an infallible record on administering justice.

An enormous amount of what happens in a cultural adjudication is not winning or losing but evolving, the best process called elections. Our cultural is judged by how it manages adversity and the character of its leaders.

Our Republic is as fallible as our current White House, Legislative and Judicial branches are demonstrating, the corruption of the Constitution so enshrined in history by “great men” who did “unwise” things, paraphrasing a comment by Lord Acton.

One of today’s fundamental judicial arguments is between Constitutional interpretation and legislation from the bench, the simple difference between “interpreting” and “legislating” law.

Wrong, bad and unadvised jurisdictive decisions, not unique to the Nine, are onerous, a matter of flawed judicial opinion, they often do great and long lasting damage to our Republic. While there are many good and wise decision handed down from the Supreme Court, the precarious ones are cultural windows, and speak to the wisdom of Friedrich Wilhelm Nietzsche who said “morality is abstractly contrived”, since moral nihilists assert that morality does not inherently exist, and that any established moral values are abstractly (hypothetically) contrived (manufactured), not exactly an elucidation ideology. To imply true neutrality is foolhardy. What are the historical cracks, providing insight, into the imperfections of our judicial and executive façade?

Dred Scott v. Sanford (slavery ), Roe v. Wade (legalized abortion),Plessy v. Ferguson (“separate but equal”); University of California Regents v. Bakke (reverse discrimination); and Bush v. Gore (election issues), Korematsu v. United State (Concentration Camps), United States v. Carolene Products (1938).  (ignoring the Court’s responsibility to decide the constitutionality of laws).

The Slaughter-House Cases (eviscerated the 14th Amendment), Katzenbach v. McClung (expanded reach of Commerce Clause), West Coast Hotel v. Parrish (abdication of the Supreme Court’s responsibility to protect economic rights), Marbury v Madison (expansion of judicial review under Article III of the Constitution) and National Federation of Independent Business v. Sebelius, 567 U.S.  (ObamaCare, The Affordable Health Care for America Act ), to name a few worth researching.

Gay Marriage Issues are before the Supreme Court 2013. Constitutionally these issues felt to be a “states” prerogative or in belong in congressional oversight, vote up or down, where DOMA (the Defense of marriage Act) belongs. The traditional definition of “marriage”, the slippery slope “monogamous”, is sacred to many and most religions. Equal “civil rights” in all legally recognized “unions” is constitutionally guaranteed (Pursuit of Happiness), “do no harm”.  Those outside of the “traditional” definition of marriage might embrace a singular, specific, honorable, sacrosanct, blessed and revered moniker of their own rather than change the definition of marriage, surely to alienate traditionalist, the silent agenda, revenge and reparations.

Edmond Burke strongly felt about the importance of the revolution but argued against the idea of abstract, metaphysical rights of men and instead advocated national tradition. Again America is at an unhealthy state where a boiling point is created by religion and politics, California Proposition 8 and the Defensive marriage Act.

The solutions are not that difficult when the issues are kept simple. Allow for sacred and distinct definitions of “marriage” and “civil unions” with the rights and privileges of both “equal under the law”. Cultures will have to adapt to permutations of partnerships beyond just two, for then it will certainly take a village, with an ever fleeting solution. But the needs and requirements of bigots and “misery merchants” are always much too sacred to give up productive “wedge issues” so we may never arrive at an amiable one plus one equals two. Who cares if “marriage” is not in the Constitution, we will make it constitutional anyway.

“The answer to the marriage debate is to get government out of it. Marriage should return to religious and social institutions from whence it came.” As to checks and balances, past and possibly present Presidents have wandered outside of the Constitutional mandates and were not, may never be adjudicated by the final nine on those transgressions, a precedent overturned?

President Abraham Lincoln circumvented the Constitution on many issues. Was the war with the south, which is more correctly identified as the “war between the states,” was it a convenient vehicle to ensure the southern tax base was retained to fund the treasury to feed expansion?

Lincoln suspended habeas corpus (a writ to release a party from unlawful restraint) and people were seized and confined on the possible suspicion of disloyalty, the underlying extreme is our domestic drone dialogue. Many historians would agree “If the premise upon which the US broke from England is legitimate then the entire premise upon which Lincoln prosecuted the war against the Confederacy, taxes, was illegal and criminal.” There is no question the Lincoln freed the slaves, a terrible blot on the country, but “does the means justify the end?” Sounds like Sal Alinsky.

The journey to big government is fraught with dangers, and possibly irreversible, starting some one hundred years ago with the Civil War and Abraham Lincoln. Further expansion of the Federal government came from Franklin Delano Roosevelt’s “New Deal,” accelerating through Lyndon Baines Johnson’s “Great Society,” and has been running out of control since then. Not an issue of good or bad but sustainability.

Was it not President Calvin Coolidge who said “The property of the people belongs to the people. To take it from them by taxation cannot be justified except by urgent public necessity. Unless this principle be recognized, our country is no longer secure, our people no longer free.” And now enter or exit Cyprus!

Had Lincoln not usurped the Constitution, Franklin Delano Roosevelt would have been unable to develop his grandiose welfare state in the 1930s.” In the first three months or so of his administration, he exploited the fear in the American people and the Democratically-controlled Congress. Congress was willing to try any measures to resurrect the economy, he used his newfound power to ram through passage of a series of measures to prop up the fragile banking system, reform the stock market, provide aid to the unemployed, and induce industrial and agricultural recovery. Sound familiar?

President Harry S. Truman seized the nation’s steel mills in 1952 with Executive Order 10340. President Lyndon Baines Johnson’s the “Great Society” is testament to once a government program is created, it is much like a snowball rolling down a hill growing daily regardless of the need, even if it outgrows its usefulness.

Wisdom from an unexpected source: A Supreme Court Decision on Proposition 8 and DOMA may well retard a stable settlement which is well on its way to reform from a permeating electorate, so implied Justice Ruth Joan Bader Ginsburg when speaking of the possibly “misstep” decision of the Roe vs. Wade, applicable here, according to Charles Krauthammer. Justice Elena Kagan articulated from the bench that these issues were percolating, not yet or ever “ripe” with standing, for judicial activism? Envision this wisdom from Kagan and Ginsburg.

It should be noted that virtually all presidents since Lincoln have used the Executive Order to circumvent the Constitution and Congress. In Robert Higgs classic work, Crisis and Leviathan, published in 1987, he demonstrates how government officials will often manufacture or exacerbate crises, marriage, war on women, Islamophobia, immigration, economic warfare, reparations and wealth distribution, as an instrument to defend both tax increases and new legislation, often in conflict with the Constitution. Does this not also sound all too familiar? No money for White House Children’s Tours says it all.

What a terribly difficult job the Final Nine have, hampered with fallibility! Judges and Presidents are human. Leave it to the “People” to decide, government to make laws, and the judiciary to interpret. That is often wiser but always leaves plenty of room for mischief.

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