Friday, March 18, 2016

A Living Constitution or Better Yet, A Living Nightmare

  
  With the nomination of Merrick Garland as a replacement for Antonin Scalea on the Supreme Court, I am hearing that he is a centrist and highly regarded by both parties. Beyond that I must admit that I know nothing about him. However, I do know this. I could never trust anyone that is nominated by Barack Hussein. I am hoping that the Republicans will steadfastly refuse consideration for any nominee until after the election. Regardless of what the Democrats say, the Republicans are bound at some point to consider a replacement but it doesn't have to happen until after the election. Obama can appoint but the Republicans also have the right to wait if they want to. I have no faith in the Republicans and I expect them to cave to political pressure as they always do. If they stand their ground I will be totally shocked.

  One of the greatest lies ever perpetrated by the left is that the Constitution is a " Living Constitution". This is simply code word for legislating from the bench. The Founding Fathers intended for the legislature to have this power. Not the executive or the judiciary. They provided a process to amend the constitution. This process allows it's citizens to change bad law or out of date law. Legislating from the bench is nothing new. Roger Taney did it when he attempted to settle the slavery issue once and for all. The Dred Scott decision nullified the Northwest Ordinance and the Missouri Compromise. Taney's ruling supported the position of the Southern slaveocracy. All the decision did was to inflame Northern abolitionists and anti-slavery people in the North. Historians argue that this decision helped bring on the Civil War. On the flip side, if the court had ruled that slavery was unconstitutional, it would also have acted illegally. It had no power to make such a ruling because slavery was constitutional at that time. It didn't matter what the court ruled because in the end this issue was settled on the battlefield. When the war was nearing it's end the legislature passed the 13th, Amendment. Some of  the the Founding Fathers knew that slavery was an unmitigated evil. I feel confident that John Adams, Benjamin Franklin, and Benjamin Rush would have eradicated slavery if it had been in their power to do so. They also knew, at least for the time being, that the only way that they were going to have a country was to compromise with the institution of slavery. I compare this to the decision that faced Roosevelt and Churchill after the Germans invaded the Soviet Union in June of 1941. They allied themselves with an evil regime for the greater good. Churchill said  “If Hitler invaded hell I would make at least a favorable reference to the devil in the House of Commons.” Even though Jefferson was a slave owner he realized that it would take a future generation to end slavery. This is what Lincoln was referring to in his Gettysburg Address when he talked about a "New birth of Freedom".

  Legislating from the bench nullified the 14th Amendment in the Plessy vs, Ferguson decision in 1896. Legislating from the bench nullified the 1st Amendment in regard to religious freedom in Everson vs. the board of education in 1947. Legislating from the bench nullified the 10th Amendment in Roe vs.Wade in 1973 and Lawrence vs. Texas in 2003, dealing with abortion and homosexuals. Lawrence would set the stage for homosexual marriage. Finally, legislating from the bench violated the 5th Amendment in regard to Eminent Domain in Keo vs. the City of New London in 2005. Sometimes the courts get it right. The 1954 Brown vs. the board of education reaffirmed the 14th Amendment and overturned the illegal Plessy vs. Ferguson (Separate but equal) ruling of 1896. Pollock v. Farmers Loan and Trust Company (1895) declared the income tax unconstitutional. Not until the 16th Amendment would the income tax be made legal in the United States. Wouldn't it be great if we could pick jurists from both parties that believed in following the law regardless of their personal bias? A so-called living constitution opens the door for jurists to implement their personal views into law. A jurist should lobby Congress, on their own time, to change laws that they do not agree with. The same as you and I. Tennessee had a Federal Judge for many years, named John Nixon, that obstructed the execution of Tennessee inmates because he publicly took a anti-death penalty stand. In my view he should have recused himself in these cases if he didn't agree with the death penalty or stepped down. Our courts have usurped power that it was never granted. One legislative body is enough.       

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