The most important fact about the tawdry, sordid Supreme Court confirmation “hearings” was that the brouhaha wasn’t about Justice Brett Kavanaugh personally.
Rather, it revealed the desperation of the Democratic Party to prevent a Supreme Court majority comprising justices who believe in the original intent of the Constitution – in other words, who believe that the Constitution means what it says.
The Democrats want justices who view the Constitution as a “living, breathing document” – in other words, they want justices to reinterpret the Constitution in light of current societal attitudes. The father of our country, George Washington, warned against evading the Constitution’s strictures for short-term expediency.
In his “Farewell Address,” Washington explained that honoring and abiding by the Constitution was essential if Americans were to remain a free people governed by impartial laws, rather than live in subjection to the politically powerful.
Referring to our constitutional system of government, he counseled, “Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty.”
Washington decidedly didn’t view the Constitution as perfect, immutable, and final. Au contraire. Washington said:
“The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists … is sacredly obligatory upon all.”
While warning of the perils of government acting contrary to the Constitution, Washington urged that outdated constitutional stipulations
“be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation [i.e. by tortured judicial interpretations or Congress and presidents blatantly ignoring constitutional restrictions on government power]; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
Unfortunately, the “living, breathing document” philosophy is already the proverbial horse outside the barn.
All three branches of the federal government have practiced what Washington called “usurpation” against the Constitution, thereby turning the “living, breathing document” into a dead letter.
Several egregious mutilations of clear constitutional intent have been going on for decades:
1. We use unconstitutional money. Article I, Section 8, Paragraph 5 of the Constitution grants Congress the exclusive authority “to coin money [and] regulate the value thereof,” while Article I, Section 10, Paragraph 1 stipulates, “No State shall … coin money; … make any thing but gold and silver coin a tender in payment of debts,” and yet states never pay in gold or silver coin.
2. Despite the 10th Amendment’s unmistakable language – “The powers not delegated to the United States [i.e. the federal government] by the Constitution … are reserved to the States respectively, or to the people” – no authority is given in Article 1, Section 8 for the massive federal programs involving agriculture, education, energy, health, housing, retirement, etc.
3. Despite both the preamble and Article 1, Section 8 stipulating that Uncle Sam is to perform only those few functions that contribute to the “general welfare,” abundant examples of cronyism and “special-interest” legislation have pushed us tens of trillions of dollars into debt.
In the past few years, the Supreme Court has done even more to subvert the Constitution, with Republican-appointed justices often joining in the mischief. The following are some examples:
1. Bush appointee Chief Justice John Roberts rescued Obamacare from nullification by twisting the “commerce clause” of the Constitution beyond recognition, with his novel theory that if you aren’t buying anything from another state, you are participating in interstate commerce. This leads to the absurd conclusion that all of us are participating in interstate commerce all of the time. Surprise!
2. Reagan appointee Justice Anthony Kennedy joined with the four progressives on the court, first to reject Congress’s definition of marriage by overturning the Defense of Marriage Act in 2013, and then imposing their own definition of marriage in another 5-4 decision two years later. It’s hardly democratic for five appointed officials to take such momentous decisions out of the hands of more than 300 million people and their elected representatives.
3. Earlier this year, Justice Kennedy, surprisingly joined by conservatives Clarence Thomas, Samuel Alito, and Neil Gorsuch as well as liberal Ruth Bader Ginsburg, ruled that state governments could impose sales tax on goods purchased from out-of-state vendors-despite the Constitution’s explicit prohibition: “No tax or duty shall be laid on articles exported from any State” (Article 1, Section 9, Paragraph 5). If such taxes are needed in today’s modern economy, fine, but first amend the Constitution by removing the prohibition against them rather than flagrantly violating what the Constitution states.
The point of citing these multiple mutilations of our Constitution is to show how far we have “progressed” in the direction of abandoning the Constitution completely. Confirming additional conservative justices seems unlikely to reverse this trend, but the political left today is so impatient to scrap the Constitution that many of them have descended into madness and wickedness to hasten the process.
This madness has been manifested in ugly ways: Foremost is the complete rejection of due process in the attempt to disqualify Kavanaugh; ugliest are such vile, over-the-top protests such as the threat (as reported in The Wall Street Journal) by an anonymous caller to rape one of Sen. Susan Collins’s (R-Maine) young female staffers if Collins voted to confirm Kavanaugh.
The purpose of constitutions and laws is to shield society from the personal passions that lead to social disintegration, violence, and lawlessness. Indeed, the rule of law is the very foundation of civilization itself. Without respect for the rule of law, there is only chaos, destruction, misery, and savagery.
The Kavanaugh episode has shown us graphically a savagery that poses an existential threat to our polity, our society, and our civilization.
This is a grim time. Ahead of Kavanaugh’s confirmation, millions of Americans showed that they want what they want so intensely that they are willing to trample the Constitution and anyone who gets in their way. The barbarians are banging on the gates. Brace yourself for the convulsions yet to come.
About the Author:
Mark Hendrickson is an adjunct professor of economics and sociology at Grove City College. He is the author of several books, including The Big Picture: The Science, Politics, and Economics of Climate Change (CFACT.org. 2018).