Vetting Kavanaugh According To The Constitution
By KrisAnne Hall, JD
When Donald Trump nominated Brett Kavanaugh for the supreme Court, he did what is likely the most important act a president of these United States can possibly do, constitutionally speaking. The President’s powers are very limited and defined according to Article 2 of the Constitution and he has very little authority to personally impact the lives of the people, except through this power to nominate judges and justices. Yet, according to the Constitution, this is only 1/3 of the process necessary to seat a justice. A person may be nominated by the president to be a justice, but a justice is not seated until the person is vetted and confirmed by the Senate. The bifurcation of this process was an intentional safeguard to ensure the appointment of a justice that would be independent of both the executive and legislative branches and to ensure that the judicial branch would remain true to the Constitution, rather than ruled by politics.
Now that Kavanaugh’s vetting process has begun, it is time for the American people to be reminded of a few of the essential duties of a Supreme Court justice and the principles that ought to govern those who occupy that bench. It is by these terms only that our Senators can truly select the justice that America needs, rather than the person the political parties want.
First and foremost, we need a justice that is dedicated to the Constitution; not to ideology, politics, or personal agendas. America does not need a liberal activist justice. America does not need a conservative activist justice. America needs a justice who is versed in the proper application of the Constitution through the Original Intent of the drafters. If that term “Original Intent” seems a bit frightening, it is only because we have taught the wrong things about our Constitution for a very long time. Originalism is not only the correct legal way to apply the Constitution, it is the only way that guarantees and secures Liberty. Original Intent is not slavery, misogyny, or bigotry; it is the exact opposite. Original Intent is a return to the principles that make America the desire of so many of those in foreign countries for hundreds of years. A return to Original Intent declares that Liberty is the right of all human beings and their government is established to protect those rights, not regulate them. A return to Original Intent is an undeniable application of Liberty and Justice for all. A return to Original Intent says that we are able to be free individuals by choice, not permanent slaves by the authoritarian stranglehold of government.
We need a justice that understands the limited authority of the judiciary as established by the Constitution. America must break free from the dangerous ideology that the supreme Court issues “rulings” and their “rulings” become the “law of the land.” Judges do not issue rulings; kings issues rulings, judges render opinions and those judicial opinions have a very limited scope of authority. A judicial opinion is only binding upon the parties of the case, whereas a king’s ruling controls a whole land. A judicial opinion cannot reach outside the courtroom to the general population as a whole, that would mean that our supreme Court is an Oligarchy of 9 kings and queens who rule over the whole land with unquestionable authority. This is just common sense, yet this concept seems to escape our general knowledge. If court opinions could bind the general public then only one supreme Court opinion would be necessary for all time and the executive branch could simply incarcerate every American based upon that opinion without a trial or any form of due process. The fact that every person has the Right to due process proves this principle. If the Rights of the people are to be preserved, supreme Court opinions cannot take the place of legislations and be viewed as the “law of the land.” Yet, nearly every American has heard a professor, judge, lawyer, politician, or pundit say, “Roe v. Wade is the law of the land.” This statement is erroneous and creates a mentality in America that is fundamentally dangerous to liberty. Roe v. Wade is a supreme Court opinion that is only binding upon Roe, Wade, and the other parties of this case, it is not law! Law making is reserved to the legislative branch alone. James Madison, historically referred to as “the Father of the Constitution” gave us this principle of Liberty:
“There can be no liberty if the power of judging be not separated from the legislative and executive powers.‘’
Alexander Hamilton, Delegate for New York at the Constitutional Convention, echoes this instruction.
“…the general liberty of the people can never be endangered from [the judiciary]; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.”
When supreme Court opinions hold the force of law, are viewed by the American people and their courts as the law, the Liberty of the people is truly in peril.
America needs a supreme Court justice that knows that the Constitution is a compact between the States that created three branches of the federal government; the legislative, executive and judicial, and what that legal principle truly means. The supreme Court is designed to be independent of the political influence of the legislative and executive branches but it is not independent of the Constitution. The supreme Court should not be seen the “ultimate arbiter” of the meaning of the Constitution as that premise would place the supreme Court legally above the very document that created it. For the court to hold the authority to determine the meaning of the compact that determines the limits of its own power establishes that the judiciary, not the Constitution, is the defining entity for the federal government. If the judiciary, who is part of the federal government, holds the authority to define the limits to the federal power, then the only limit to federal power is itself. When that happens, America ceases to be a Constitutional Republic, and becomes an Oligarchy of Nine. The Constitution enumerates the specific powers of the judiciary in Article III of the Constitution. The judiciary has no power beyond that specific enumeration and the Constitution does not vest the ultimate meaning of the Constitution in the body of the judiciary. Alexander Hamilton makes this poignant observation in Federalist #83:
“…an affirmative grant of special powers would be absurd as well as useless, if a general authority was intended.
The ultimate authority governing the meaning of the terms of the Constitution, by the dictate of contract law, falls upon the parties who created the Constitution; the States. Our founders gave this legal instruction many times during the process of creating the Constitution, but none say it better than James Madison:
“…the powers of the federal government as resulting from the compact to which the states are parties;” in other words, that the federal powers are derived from the Constitution; and that the Constitution is a compact to which the states are parties.”
“If the decision of the judiciary be raised above the authority of the States… dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution. consequently, that the ultimate right of the States, to judge whether the Constitution has been dangerously violated, must extend to violations by one delegated authority as well as by another--by the judiciary as well as by the executive, or the legislature.”
America needs a constitutionally sound supreme Court justice. One who understands the supremacy of the Constitution, the limited and defined nature of the authority of the judiciary and why strict adherence to these principles is the only means by which the American people can truly live up to the standards that America was founded upon:
We hold these truths to be self-evident that all men are Created equal and endowed by their Creator with certain inalienable rights…”
When our founders penned and signed their pledge to these words, they meant it just as it was written. In fact, Jefferson’s original draft was even more pointed in its anti-slave stance. They could have very well written “all free-men or white men are Created equal” but they did not. They were declaring that this Creator they reference made ALL MEN (gender neutral application) in His image and that through this creation all are inherently free. Even as some of these men struggled to extricate themselves from the dominant feature of their time (Jefferson most notably), they knew that the seed of liberty they sowed in their day would grow and that future generations would be able to fully realize the drafters’ dream of Liberty and Justice FOR ALL. Only a truly constitutional justice will know and understand this. Only a truly constitutional justice will put liberty over security, principle over party, and the rights of the people over personalities in power. America needs a truly constitutional justice, and that is what our Senators have a duty to provide.
If you would like a better understanding of how our Constitution created our federal judiciary, our online educational program called Liberty First University, will give you that understanding free from historical revision and political propaganda. We have both online courses on the judiciary and DVDS available for in home, church, and group meetings. You can find us at www.LibertyFirstUniversity.com
In light of President Trump’s nomination of Brett Kavanaugh to the Supreme Court, the left hasn’t changed its playbook. So, it is no surprise to hear claims that appointing an “Original Intent” Justice will bring back Jim Crow and chattel slavery. A reasonable look
at history (which is not to be expected from the left) should give rise to the opposite conclusion. A SCOTUS Justice who follows original intent should be viewed as a safeguard against a racist court. IF you will read to the end you will understand what I mean.
The infamous case of Scott v. US (The Dred Scott Decision) was NOT an example of Original Intent but of judicial activism. In Scott v. US the Supreme court through a series of historical errors, ignorance and racist reasoning wrongly declared that the Constitution never intended to make black men citizens and therefore intended for them to be property. They ignored the history of freed blacks in America, ignored the drafters’ own words, and inserted meaning into the Constitution’s text that could not be found in its plain reading.
The court’s judicial summary of the Dred Scott case is rich with historical revision and falsehoods and demonstrates the court’s venture outside of the text. The court claimed, “The only two clauses in the Constitution which point to this race treat them as persons whom it was morally lawfully to deal in as articles of property and to hold as slaves.” Of course, there are no clauses in the Constitution that identify the “African race,” this was read INTO the text by the racist court. The clauses in question reference persons who are “other than” freeperson and a “Person held to Service or Labour.” This could equally apply to the over 300,000 English, Irish, and Scottish slaves brought to the American colonies between 1618 to 1775. Yet, we do not hear the racist Dred Scott Court or any other person for that matter attempting to argue that an Irishman, Scotsman, or poor white English slave would not be a citizen if freed; that their children if born free would not be citizens.
This is a guest article by our dear friend Victor Sperandeo. Mr. Sperandeo was a 2008 inductee into the Trader Hall of Fame by Trader Magazine and has been included on Ziad Adelnour’s list of top 100 Wall Streeters. Mr. Sperandeo was featured in the best-selling, The New Market Wizards: Conversations with America’s Top Traders, by
July 2nd is actually America’s #IndependenceDay
Our Independence was not the product of the Declaration of Independence, signed by John Hancock on July 4, 1776. On the contrary, the Declaration of Independence was the product of our Independence!
On June 7, 1776 a delegate from Virginia by the name of Richard Henry Lee proposed the “Lee Resolution.” The Lee Resolution was the 3 step process of declaring independence from our then government of Great Britain. The first clause of the Lee Resolution proposed:
“That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved;”
On July 2, 1776 the Lee Resolution was brought to the Continental Congress floor. It was debated, voted, and ratified into law by 12 of the 13 colonies, New York abstaining because the delegates claimed they were unsure of how their constituents wanted them to vote. Upon ratification of the Lee Resolution, our 13 colonies, became 13 independent sovereign governments. We were from that day forward no longer colonies, each State was then and there independent.
Our Independence Was a Legally Created Legislative Act just as binding as anything our Congress does today that is Constitutional.
Without the passing of the Lee Resolution, there would have been nothing to declare in the Declaration of Independence. As a matter of fact, the Declaration of Independence does not even claim to be the source of our independence, it merely boasts to be its declaration:
“We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly PUBLISH and DECLARE…”
The Declaration of Independence then goes on to quote the first clause of the Lee Resolution in its text.
Our founders did not establish July 4th as Independence Day, that was an honor given to July 2nd. John Adams documents this honor in a letter to his wife, Abigail on July 3, 1776:
“The Second Day of July 1776, will be the most memorable Epocha, in the History of America.
—I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival.
It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.”
It Wasn’t Until 1870 That July 4th Became the National Holiday for commemoration of our independence.
Have a Blessed Celebration of Independence from a former tyranny and the subsequent building of a union of States in the name of Liberty First!
Supreme Court Opinion on California Abortion Notice Law May Have Unintended Consequences
In a case titled NIFLA, ET AL. v. BECERRA, the supreme Court is asked to opine on whether Beccera’s injunction to stop enforcement of California’s FACT Act should be granted or not. California’s FACT Act requires pro-life clinics to inform their clients on how and where to get abortions. This government forced message, Beccera claims, is unquestionably contrary to their practices and beliefs and is therefore a violation of their freedom of speech. The supreme Court rightly agrees with Beccera and grants the injunction and sends the case to the lower courts to finish its legal process.
This is a victory for freedom of speech and also for the unborn’s right to life. However, it may have some unintended consequences for pro-life supporters. Justice Clarence Thomas writes in the majority opinion:
“Content-based regulations “target speech based on its communicative content.” As a general matter, such laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”
Thomas remarks that California’s licensed notice is a content-based regulation of speech. Since this particular notice is forced upon clinics like Beccera’s, who are morally opposed to abortion, this particular notice only serves to “alte[r] the content of [their] speech.”
Justice Breyer, writing for the dissent, claims that the government has traditionally held the power to regulate speech through professional licensing and this case should be no different. However, Justice Thomas reasons that speech is not unprotected merely because it is uttered by “professionals” therefore the California law cannot force pro-life clinics to include government scripted instructions about abortion. Justice Breyer remarks in the dissent that this opinion, depending upon how it is applied, could have widespread ramifications on many laws currently in place requiring certain businesses to supply clients with government scripted notices. This point made by Breyer is where pro-life advocates may find that they have won this case, only to lose another.
Many States have laws on the books that require abortion clinics, both public and private, to provide brochures on alternatives to abortion. Many States have laws forcing these abortion clinics to provide ultra-sound services along with instruction about the developmental stages of the baby in the womb. These are also government scripted notices forced upon these clinics contrary to their practices and beliefs. If these abortion clinics were to challenge these laws forcing the pro-life message, under this precedent the high Court would also have to overturn those pro-life message laws.
This judicial tit for tat is what happens when people use the force of government to promote personal messages. As Thomas so clearly points out in the majority opinion, the pro-abortion proponents could easily inform the women about its services “without burdening a speaker with unwanted speech,” most obviously through a public-information campaigns. To be consistent in their opinions, the majority would have to say the same thing about government forced pro-life practices and messages. This means that both parties will have to use non-governmental methods to inform the public about their services rather than relying on the force of government to promote their message.
The irony is that the supreme Court seems unanimous to a certain degree that freedom of speech deserves the highest level of protection, however, the life of an unborn child does not.