The Constitution is still the supreme law

"We must never forget it is a Constitution we are expounding"- Chief Justice John Marshall Last week I discussed the controversy over the nomination of Sonia Sotomayor as Associate Justice of the United States Supreme Court, focusing on the standard for evaluating nominees. This week I will examine our Constitution, the basis for that standard.

Ours is a limited constitution, one that delegates powers to a federal government and denies certain powers to state governments which they had exercised to the detriment of our prosperity. It is necessary to recall these circumstances which originally gave rise to the Constitution in order to appreciate its authority and legitimacy today.

The Constitution did not come into being in a vacuum. What we now call the founding generation could not be sure that their nation would survive. Partly because of a suspicion of distant centralized authority and partly because of an attachment to their states, many Americans were far from assenting to a national government.

The Continental Congress (1774-81) and the Articles of Confederation (1781-89) were based on the good faith of the colonies until Independence (1776), and then the states which formed in that fragile union. Nothing of consequence could be accomplished without the approval of nine of the 13 states, and no independent and powerful national legislative, executive or judicial branches existed.

The major domestic threat to our nation was faction. The comparatively small size of the states which rendered them responsive to the wishes of their constituents also made them vulnerable to domination by majority factions determined to assert their rights but loathe to accept their responsibilities.

In the midst of a depression caused by the end of wartime production and the lack of access to continental and foreign markets, many Americans were broke and in debt. The war had been financed by an almost worthless Continental currency, made worse by the states' issuance of paper money as well. As debtors and their allies soon outnumbered their creditors, state after state passed laws which, in one way or another, repudiated debts.

Such legislative acts constituted more than an attack on the property rights of one class of people by another, as wrong as that was. They also sent a signal to nations from whom we borrowed money to finance the War that those debts were susceptible to repudiation too. After all, the same factions that controlled state governments dominated the weak Confederation Congress.

Reverence for the Constitution and the laws was not necessarily in the hearts of many of our ancestors at their moment of great crisis. How to counter this? As vital to the defense of our rights as a strong legislative and executive branch are, the courts have more immediate impact than either on the lives of our people. It is there that contracts are upheld and private property protected.

Thus, the Constitution, in Article III, provides for a supreme court, and "inferior courts" established by Congress, the judges of which hold their offices "during good behavior." When combined with Article VI, which declares the Constitution, federal laws and treaties to be "the supreme law of the land," binding every state judge, we gained a truly national judicial branch. This was soon to be the chief restraint on the states which, at that time, were coining or printing money, and passing bills of attainder, ex post facto laws, and "laws impairing the obligation of contracts."

It would be strange for the Constitution to permit at the federal level what had been curbed at the state level. Thus, the Fifth Amendment to the Constitution forbids the federal government from taking private property for public use without just compensation.

But since New Deal days, Congress has passed laws which have encroached on rather than merely regulated our trade and commerce. In other words, it has been doing what the states long ago had been restrained from doing by our Constitution. And just as it once took state judges of uncommon fortitude to resist what James Madison denounced as the states’ "rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project," so now it requires federal judges of equal fortitude to resist that same impulse in Congress.

For as Alexander Hamilton put it so forcefully, we must turn for the defense of our property and other rights to "courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void."

Coalition opposes Sotomayor

(Denver, June 5) A coalition of Colorado groups and concerned citizens joined forces today in opposition to President Obama's nomination of Sonia Sotomayor to the United States Supreme Court. Organized as the Colorado Judicial Network, they are urging the US Senate confirm only highly qualified individuals who put the rule of law ahead of personal political agendas. As former State Sen. John Andrews put it: “Barack Obama said he wanted to remake the Supreme Court with his judicial nominees. Yet we are told by the administration that this is a 'middle of the road' judge who sides with conservatives more often than liberals. The White House is attempting to confuse the American people, who deserve an honest airing of the differences between the Obama-Sotomayor view of the law and the Roberts-Alito-Scalia-Thomas approach to the Constitution and the role of the Court.” “Sonia Sotomayor's statement that a 'wise Latina woman' would generally make better decisions because of 'the richness of her experiences' than a white male reveals the extent to which political and personal agendas have supplanted the rule of law in selecting nominees.” said former State Treasurer Mark Hillman. “Rule of law requires that laws be written, accessible, understandable and uniformly applied. Obama understands his nominee has little interest in impartially applying the law. He also understands that this undermines the rule of law. He just doesn’t want the American people to understand. “

“We reject the notion that Sonia Sotomayor is a 'racist,'” said Jim Pfaff who heads the Judicial Confirmation Network's efforts in Colorado. “What motivates her to say a 'Latina woman' would make a better decision than a white male—as with her statement in 2004 that the courts make law—is a belief that the Rule of Law can be ignored whenever she wants to accomplish a favored political end.”

The Colorado Judicial Network is an organization of citizens joined together to support the confirmation of highly qualified individuals to the Supreme Court of the United States. They seek judicial nominees who stand for the Rule of Law and are committed to uphold the principles of judicial restraint and fidelity to the original meaning of the United States Constitution

The Colorado Judicial Netowrk Steering Committee includes:

** John Andrews, Chairman, Backbone America Citizens Alliance and former Colorado Senate President.

** Jon Caldara, President, Independence Institute.

** Mark Hillman, former State Treasurer.

** Jeff Crank, State Director, Americans for Prosperity.

** Jim Pfaff, former State Director, Americans for Prosperity and President/CEO, Colorado Family Institute.

Pfaff serves as press contact for the coalition and can be reached at jim@iresearchanddata.com or 303.957.8600

Judicial impartiality and the Constitution

With President Barack Obama’s nomination of federal judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter, the nation is in a debate about both the qualifications of the nominee and the proper criteria for selection. That the nation is divided over both obligates us to clarify their relationship to each other. Judge Sotomayor, whose Puerto Rican descent should not matter but it does because the President and she have that said it matters, is undergoing the by-now familiar microscopic examination that has attended these nominations since Judge Robert Bork was savaged by Senate Democrats in 1986. On paper the lady who has made much of her ethnicity is qualified, and she will be confirmed because her party has the votes.

I oppose this nomination for the simple reason that Judge Sotomayor does not understand, if she does not actively oppose, the United States Constitution as it was understood by its framers and ratifiers. But it is more important to set forth the grounds upon which this decision should be made than to emphasize the reasons why she should be rejected.

Both liberals and conservatives have a legitimate point about the requirements of constitutional jurisprudence but both have a blind spot. Liberals make much of the fact that the judges will inevitably bring to the table certain predispositions and preconceptions which will shape their decisions. This can hardly be doubted, but the question is whether the judges’ "baggage" will keep them from performing their duties well.

For if those predispositions and preconceptions are inconsistent with the character of the Constitution, not to mention the political philosophy which informs it in the Declaration of Independence, they carry no weight and should be disregarded. Hence, what race or gender one belongs to is irrelevant.

Conservatives contend that judges should not legislate from the bench but apply the Constitution and laws to the case before them. Their logic is unassailable but they are too prone to give bad laws the benefit of the doubt when they may in fact be unconstitutional. After all, most conservatives believe that Roe v. Wade (1973) was wrongly decided and even unconstitutional.

If this criticism seems unfair, consider the oft-repeated conservative criticism of "activist" judges who, pretty much as conservatives claim, go well beyond the role of judge and make up constitutional law that has no warrant in either the language of the Constitution or the judicial precedents relevant to a case. Is a judge who upholds the Constitution by striking down a state or federal statue in conflict with it a "passivist" judge?

Liberals criticize conservatives on the grounds that judges of their political philosophy are no less activist than liberals when it comes to their constitutional priorities. I grant the criticism, at least to this extent, that defense of the Constitution demands more of judges than simply applying the laws to a case.

However, judging is fundamentally different from legislating, as the former deals with specific cases and the latter devises general rules. We don’t want a Congress to decide who has violated its laws or to affix penalties for doing so. But we want all our public officials to abide by the Constitution because it is the supreme law and because it embodies justice.

The Constitution requires judges to be neutral between the parties in the cases which they decide, but it is not neutral about the requirements of justice. Its conception of justice entails "secur[ing] the blessings of liberty to ourselves and our posterity." The document empowers the federal and state governments to rule but also limits their powers in numerous ways. Beyond these limitations, ours is a republican constitution, that establishes rule by the people through their chosen representatives on behalf of purposes which their constitution spells out.

Our quarrel with judicial activism should be focused on a judge’s predilection to corrupt our Constitution with doctrines calculated to "transform" it from a guarantee of equal rights for all to a device for empowering government officials to favor allegedly underprivileged groups at the expense of everyone else. It is no accident that President Obama nominated a Latina woman with a class-based notion of justice, for such is what both of them want.

Our Constitution should be protected from the efforts of anyone to subvert it for unjust ends. The judges’ impartiality is in the service not of a neutral constitution but one which favors equal justice over class rule.

Torturing the truth more than our enemies

On September 11, 2001, a date which certainly ought to "live in infamy," 19 violent enemies of the United States carried out vicious airliner attacks on New York City and Washington, D.C., killing nearly 3,000 persons. This is known to all, of course. Yet the ruling party today is determined to deprive us of the necessary means to prevent more attacks by abandoning the policies which protected us for the last eight years. President Barack Obama and his fellow Democrats in Congress profess to be horrified at the specific tactics which the Central Intelligence Agency used to elicit information from three"high-value" targets. These men were seized in our successful campaign against the Taliban regime in Afghanistan that harbored the Al Qaeda terrorists who carried out the 9/11 and other acts of mayhem, such as the previous bombing of the World Trade Center in 1993.

I say "profess" because the "torture" to which these mass murderers were subjected did not elicit any outrage from Democrats when they were briefed on the techniques back in 2001. There appeared to be general agreement that no stone should be left unturned in the effort to gain whatever information that Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri could provide.

Although Speaker of the House Nancy Pelosi denies it now, others present with her at the briefings the Bush Administration gave to congressional leaders have said that she not only knew of the enhanced interrogation techniques but approved of them, even urging that the CIA go beyond them if necessary. She was responding then as virtually every other American would have in her circumstances, given the enormity of the evil inflicted upon us and the undeniable evidence that these three men were either directly responsible for or fully informed about the 9/11 outrage.

The most useful information obtained was that an airliner attack was planned for Los Angeles. Was thwarting that attack not worth the CIA’s best efforts?

Webster’s Dictionary defines torture as "the infliction of severe pain, as to force information or confession." While any definition is only as accurate as its correspondence to reality, and that depends upon the judgment of those who understand what it is, a dictionary provides an impartial reference point.

However, the Wikipedia definition of waterboarding, which is based upon the contributions of "editors" who may or may not be impartial, describes waterboarding as "a form of torture" which "consists of immobilizing the victim on his or her back with the head inclined downwards, and then pouring water over the face and into the breathing passage." It adds: "In contrast to submerging the head face-forward in water [the technique used in the Spanish Inquisition], waterboarding precipitates a gag reflex almost immediately. The technique does not inevitably cause lasting physical damage."

This is torture?

The rest of this story is that waterboarding has been used on American servicemen for years to prepare them for the abuse they will be subjected to should they be captured by enemy forces. There is no evidence that they have ever been subjected to the unspeakable methods favored by despotisms.

Few of us do not know that mutilation and decapitation have been resorted to by Islamist terrorists. It beggars belief that men who are that brutal will be inspired to change their ways by our refusal to use a harsh method that actually falls short of real torture.

Meanwhile, two Bush Administration legal advisors who thought through the constitutional and legal implications of enhanced interrogation techniques and wrote extensive memos about them, have been treated as evil men who provided cover for the government’s allegedly brutal policies. This is second-guessing at best and witch hunting at worst.

As Alexander Hamilton wrote in The Federalist Papers, "A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people."

The first duty of the government is public safety which, if it is to be adequately provided for, cannot be restricted as to means unless those means are immoral. It is not clear that subjecting a highly select group of known terrorists to maximum discomfort amounts to torture. If our government actually shrinks from its duties, the torture for millions of people will be far worse than that on three al-Qaeda operatives.

America is better than Utopia, Mr. President

Utopian visions have stirred men’s souls at least since the time of the ancient Greeks. The philosopher Plato unmasked the folly and the evil of all such schemes in his famous "Republic." He did not merely criticize a current tendency but a perennial human temptation. President Barack Obama is a utopian who believes that there are no limits to what can be done with political power. In contrast to the United States Constitution, the powers of which James Madison described as "few and defined," the ideological goal of the current administration is "transforming" the human condition.

Not content with equality in political rights and economic opportunities, Obama seeks to redistribute the wealth. To this end, he means to increase the income tax on the most productive and eliminate it for the least productive. By simultaneously commandeering votes with groups like ACORN, he will ensure that those who pay no taxes will access the money of those who do.

Obama has shown no respect for the law of nature that persons of the opposite sex alone should be married, that marriage should be upheld as a vital institution, or that unborn children should not be wantonly slaughtered. That is why he equivocates on same-sex marriage, ended restrictions on federal money for abortions overseas and for embryonic stem cell research, and supports legislation to end all restrictions on abortion whatsoever.

In perhaps the biggest conceit of all, our President actually says that he can negotiate with the world’s most aggressive dictatorships and make them see the wisdom of restraining their military ambitions. Iran and North Korea somehow will stop producing nuclear bombs and missiles, the Taliban and Hamas will see the error of their ways, and Hugo Chavez, Danny Ortega and even the Castros will change their opinion of us.

Obama pledged during the campaign to cut back on nuclear weapons unilaterally and has repeated the pledge recently. He says that our moral leadership will show the rogue nations of the world that we mean them no harm and that we can develop common interests.

The only sensible response to socialism at home and ill-conceived peace missions abroad is to point out that "there is nothing new under the sun." There will always be persons--and nations--who envy the success of others, blaming others rather than themselves. What talents they do possess they turn to tearing down others’ achievements. Socialism, as Winston Churchill so sagely remarked, produces nothing and makes people equal in their misery.

Mankind is certainly capable of improvements, as our ancestors showed when they founded the freest nation in the history of the world. But the enemies of the American Constitution, foreign and domestic, stretch the limits of human nature and wind up making things infinitely worse with socialism, communism and fascism.

The task of each generation of Americans is to elect leaders who understand that we are better off buying and selling with each other, in our neighborhoods or across national boundaries, than trusting governments to determine who should benefit from its power to redistribute the wealth through taxing and spending.

Those same leaders need to follow the maxim of Alexander Hamilton that nations do not have permanent friends, only permanent interests. Although the most reliable friends are those with a common heritage of liberty, we should never imagine that American independence can coexist with the fiction of a "community of nations." Many nations are as envious of our freedom, wealth and power as the least successful among us are of the most successful.

It is not in the character of the United States to be belligerent toward the world, but neither should it procrastinate while threats build up to such a degree that we lack the will and the means to counteract them and we are forced to wage defensive war, as we did in 1917 and 1941.

And certainly no America President should ever apologize abroad for policy differences with his predecessors, not to mention frivolously gloss over the great divide that separates the majority of Americans who embrace the Judaeo-Christian tradition and those who adhere to Islamic doctrines. For whatever Christians may have done in the Arab world a thousand years ago, there are no modern-day Christian equivalents of the violent Muslim minority that has declared war on the "Infidel."

Obama cannot legislate inequalities away or make the lion lay down with the lamb. Indeed, it is better for us to trade, as civilized nations do, than to seize wealth by force, as barbarians do. Meanwhile, we must always keep our guard up.