Joe Wolverton, II, J.D.
An oft-quoted maxim attributed (dubiously) to Mark Twain instructs writers: “Never let the truth get in the way of a good story.” Perhaps Supreme Court Justice Stephen Breyer has been reading the recently published diaries of Twain and has been inspired to weave a little yarn of his own — a story strong on emotion but woefully light on facts.
The federal judiciary has had a chip on its shoulder ever since Alexander Hamilton described it as the “weakest of the three departments of power.” From Marbury v. Madison and McCulloch v. Maryland through to its present day progeny, federal judges consistently misinterpret the Constitution and misinterpret the powers assigned to them therein. In fact, for decades the district courts, courts of appeal, and the Supreme Court have gone out of their way to show that they can obliterate the Constitution just as powerfully as their sister branches.
As the October session came to an end after Thanksgiving, the Supreme Court agreed to hear a First Amendment challenge to Arizona’s controversial campaign finance legislation.
Lately, even many soi-disant conservatives are calling for the drafting of a new constitution. Many believe that the government that has developed from the matrix established by our Founding Fathers has encroached too far into the sovereignty of the states and the people and will never retreat, no matter how fierce the battle waged by zealous constitutionalists. Proponents of this solution advocate the calling of an Article V convention for the purpose of restoring balance to the federal system that has proven so fertile to the growth of big government. The Constitution of 1787 delenda est! they cry.
On November 16, the Supreme Court of New Jersey held that a committee seeking to recall Senator Robert Menendez in advance of the end of his term may not proceed.
In a 4-2 decision, the state's highest court ruled that a constitutional amendment passed in 1993 (along with state laws promulgated subsequently) violates the separation of powers as set forth in the both the state and national constitutions.
Recently an article was published at lewrockwell.com wherein the author, Kirkpatrick Sale, asserts that it was the Founders' evident intention to establish a powerful federal government. In fact, contrary to what many constitutionalists may believe, the Constitution as framed was intended to, and was successful in, paving the way for the massive federal usurpations that plague the United States today.
The vigorous and timely advocacy of the enforcement of the 10th Amendment has been well chronicled in the pages of The New American and elsewhere. There are, in fact, organizations devoted exclusively to that task. While no constitutionalist worthy of the distinction can doubt the vital nature of that mission, there is another amendment whose prominence in recent headlines must concern those dedicated to the advancing of constitutional principles of freedom and good government: the 17th Amendment. That amendment required the direct election of U.S. senators by the people, thereby eliminating the election of U.S. senators by state legislatures.
Virginia Attorney General Ken Cuccinelli understands the difference between unpopular and unconstitutional. During a speech October 21 at the Fall 2020 Legal Strategy Forum sponsored by the Heritage Foundation, Cuccinelli told attendees, “We don’t sue because we don’t like things. That is what elections are for.”
Sir Isaac Newton’s First Law of Motion states: An object at rest tends to stay at rest and an object in motion tends to stay in motion, unless acted upon by some external force.
An article in the Washington Post today relates how Supreme Court justices are spending the early days of the latest session parsing the language of various statutes to determine the merits of the constitutional questions arising from them. One day, says Robert Barnes, author of the piece, the definition of “file” is debated; the next day it’s “unavoidable” that must be defined in constitutional context. Later in the week, the justices pepper counsel with questions over the interplay between verb and adverb in the phrase “necessarily implies.” On that point, Chief Justice John G. Roberts laments, “…the adverb points one way and the verb points another.”