The Supreme Court vs. The Constitution ~ Excerpt


Why did I decide to write this book?  Simply because I love this country.  I am thus unhappy that various basic principles, values and rules on which this country was established, in the Declaration Of Independence and the Constitution, are being discarded, and replaced by many notions contrary to those our Founding Fathers held sacred.

I believe that most Americans still espouse and support our Founders’ principles codified in those two documents, which have structured and protected our country from its birth.  Yet, as this book details, within my lifetime, the Supreme Court, tasked with upholding the Constitution, has in fact seriously eroded and altered the rules and principles in those documents as provided by our Founders.  This has happened because some justices have substituted their personal view of what the law should be for what the Constitution prescribed and what the law – as enacted by Congress and state legislatures – is.

In a 2011 speech given to the Federal Bar Council at the Waldorf-Astoria Hotel in New York,[i] Supreme Court Justice Samuel Alito referred to various surveys “conducted to see how much the American people know about the Constitution,” and the “not too good” results.  He opined, “this is to be regretted” because “ordinary citizens should know more facts about the Constitution.”  I am optimistic that the facts in this book concerning the Constitution, and a sampling of misguided Supreme Court decisions – supposedly applying the Constitution, but in fact changing it – will help fulfill Justice Alito’s aspiration.  This book will thereby enhance Americans’ knowledge of how the Constitution is being misused and ignored.

My hope is that this book can provide to all Americans, including the overwhelming number who are not lawyers, with a simple, but not simplistic, understanding of what is happening to our Constitution. That knowledge hopefully would induce the reader, together with other awakened countrymen, to take the steps necessary to turn the tide back to the America our Founders envisaged.

Undoubtedly, most Americans obtain some knowledge of actions taken by the president, by Congress, and by the Supreme Court, altering or even discarding previously accepted rules, legal principles and values.  That knowledge may be obtained online or from a 30-second report on radio or television or from a newspaper article.  None of these sources can be expected to provide the public with a meaningful explanation, understandable to all Americans, of how the action altered our country’s direction from what our Founders intended and prescribed.  Most Americans quietly continue their lives with little attention to these changes, although they alter significantly the rules affecting all Americans’ security, safety, values and future – essentially your life, liberty and pursuit of happiness.

Why such silent acceptance?  You would not likely sit idly by if the bank holding your mortgage suddenly told you that it had altered the provisions of your loan to require you to pay more than what you had agreed, or to add a new restriction on your ability to use your property.  Nor would you remain silent if a contract you had signed were unilaterally altered against your interests by the other party.

Yet, this is exactly what has been occurring to the two basic documents that were carefully written by those who gave birth to the United States: The Declaration Of Independence and the United States Constitution.  I will provide what I hope will be a better understanding of those documents, and the current status of some of the rules, principles and values that they were intended to protect.



President Obama spotlighted the issue of the Supreme Court’s proper role when, on April 2, 2012, as part of a Rose Garden press conference with two foreign leaders, he interjected a warning to the Supreme Court not to hold unconstitutional his Obamacare law that he considered the highlight of his first term.  He labeled the possibility of such a Supreme Court decision as unacceptable “judicial activism,” which “would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Did this “warning” have the effect of saving the “individual mandate” provision – at the heart of the Obamacare statute – from a Supreme Court declaration that it was unconstitutional?  Respected Supreme Court reporter Jan Crawford reported that Chief Justice Roberts “initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care law … but later changed his position.” It may never be known what caused Justice Roberts’ totally unexpected vote, involving his construing the individual mandate penalty as a tax – an interpretation in which no other justice joined.  Is it pure coincidence that President Obama voiced his “warning” during the latter portion of the justices’ internal deliberations?  You can reach your own conclusion.

But, even without establishing any cause and effect between the president’s “warning” and the Court’s 5-4 vote to leave most of that law in place, the seriousness of its public utterance by a president is without dispute.

It is nothing new in our country for politicians – even presidents – to attack the Supreme Court for being “activists” who usurp the powers of Congress, state legislatures, and even the president, by overruling elected legislators and the president.  President Lincoln, in his first inaugural address, warned more generally that “decisions of the Supreme Court,” that were within Congress’ and the president’s jurisdiction, would result in depriving “the people” of their right “to be their own rulers, having, to that extent, practically resigned their government, into the hands of ” nine appointed, non-elected justices.

President George W. Bush, Obama’s Republican predecessor, also decried judicial activism.  Pointing out that the judiciary is “the only branch that is unelected and whose officers serve for life,” he called “unfortunate,” “a threat to our democracy” and “judicial lawlessness” that “some judges give in to temptation and make law instead of [simply] interpreting.”

A layman might look at these attacks on the Supreme Court by politicians on both sides as indicating that whether the Court is correct depends on whose ox is being gored.  Republicans Lincoln and Bush disagreed with the Supreme Court decisions and thus attacked the Court for being improperly “activist.”  Likewise, Democrat Obama attacked the Court because he saw the possibility that the Court would declare unconstitutional his pet legislation.  That might well lead some to conclude that there is no meaning to the term “activist” as applied to judges, and no rules to determine the constitutional limits of judicial power to invalidate what Congress, state legislatures and the president may do.  I propose to demonstrate that conclusion is totally wrong; the Constitution in fact sets the limits and defines the courts’ powers.  The problem is that some justices prefer to impose their personal views as to what the law should be for their limited role to decide whether the law, as enacted or applied by elected representatives, is inconsistent with the Constitution.

Hence, whether nominees to the Supreme Court will be activist justices imposing their personal views, or believe themselves constrained by the Constitution and what this law is, will be crucial in determining the future direction of this country.

We have recently re-elected Barack Obama to serve four more years as President.  Little within the president’s power has more impact on the future of this country than his power to nominate new justices of the Supreme Court, who, depending on the age of the nominee, may render decisions for 40, 50 or even more years.  At least two Supreme Court vacancies, and possibly as many as four, are likely during President Obama’s new term, given the age of the oldest four justices: Ginsburg – 79; Kennedy – 76; Scalia – 76; Breyer – 74.  Two of these justices (Ginsburg and Breyer) are generally considered to be in the Court’s activist camp, while Scalia and Kennedy are not.  The nomination of another activist justice to replace either Ginsburg or Breyer would do little, if anything, to alter the direction of future Supreme Court rulings.  But, if either the Scalia or Kennedy seat were to become vacant during the next four years, the replacement would likely create a majority of five activist justices, with lasting impact on this country.

One last impediment to a nominee’s assumption of a Supreme Court seat: consent to the nomination by a majority vote in the Senate (60 percent as a practical matter, due to the Senate’s filibuster rule).  That vote, following a detailed examination of the nominee’s qualifications, character, and, most crucial, views – not on any specific forthcoming case, but on judicial philosophy – provides opportunity for you, as part of the public, to lobby your senators to reject any nominee who will not live by his/her oath to uphold the Constitution and vote in favor of one who will.  To do so, you must understand the issues involved and the vast gap between an activist justice and one who is not.  I write this book with that objective in mind.



To properly evaluate the Court’s assigned role in our country, it is essential to have a basic understanding of the two documents that our Founders used to create our country: the Declaration of Independence and the Constitution.

The men who signed the Declaration risked their lives, their families, and all they possessed to give birth to this country.  Their immediate objective was the creation of the United States, followed 13 years later by the adoption of the United States Constitution, which was intended to set in concrete – for Americans for all time – the structure, procedures and protections to enable Americans to live by the ideals expressed in the Declaration.

This book seeks to answer the central question of whether we have remained faithful to these sacred documents that our country’s courageous Founders gave to us.  Unfortunately, particularly in more recent decades, my answer is No.  To enable you to reach your own conclusion, it is essential that you fully understand relevant facts concerning both the Declaration of Independence and the Constitution. …

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