The Incongruent Relationship between Settled Law and the Constitution
By: Jim Byrd
The Sketch Effect
An artist sketches a young subject. During the session, the artist engages in conversation with the subject, observes the subject’s mannerisms, and develops a sense of the subject’s personality and characteristics. The finished work not only encompasses the physical exactness of the subject, but includes the artist’s incorporation of the subject’s characteristics as well.
The original sketch is passed along to another artist to be duplicated. The second artist renders his sketch based upon the first sketch, but, without the use of the original characteristics of the original subject, the artist then incorporates his depiction of what he believes the subject’s personality should be into the sketch. This process is repeated until the tenth artist completes the sketch.
When the original sketch is compared to the tenth sketch, the similarities are abstract and transcendent, and the tenth sketch has taken on the aura of a caricature of the original subject. Yet when the tenth artist is asked to sketch the original subject under the same circumstances as the first artist, without knowledge of who the subject is, the sketch completed by the tenth artist of the original subject has only a vague similarity to the tenth artist’s first sketch.
The Sketch Effect is an allegorical depiction of the erosion of the authoritative meaning of the Constitution and the perpetual reinterpretation of the original intent by agenda and ideological driven law schools, lawyers, judges, and the Supreme Court. The legal education one receives from contemporary law schools, including elite law schools, is an obedient reverence for case law. The student examines, studies, and contemplates contaminated judicial decisions that are detached from and lacking relevance to the original meaning of the Constitution; these decisions are historically bereft, and are accepted as the Supreme Law of the land by virtue of courts circumventing the legislative process. By possessing legal knowledge generally antipodal to the foundersâ€™ intentions in the form of selectively beneficial case law taught by ideologically driven law professors, the fledgling jurisprudent is ill-equipped to discern the constitutionality of a legal ruling, a law, or a statute within the context of the Constitution. Harvard, Yale, Columbia, et al., have become an assembly line of law school diploma mills that have produced constitutional anarchists such as the Clintons, Barack Obama, current Supreme Court justices Ruth Bader Ginsburg, David Souter, Stephen Breyer, Elena Kagan, and Sonia Sotomayor, the perpetually benighted ACLU, along with the vast majority of federal judges who are unequivocally unqualified to administer constitutional law under any circumstance. Though these schools are generally ranked as the best law schools in the nation, the honor is gratuitously extolled by an incestuous hierarchy, intellectually incapacitated by their antithetic ideology counter to the original meaning of the Constitution.
This league of lawyers, universities, judges, and Supreme Court possess the perfect paradigm integral for creating defective law, and then the continued perpetuation under the guise of stare decisis.
The Left assails the Constitution time and again to dismantle settled law, unsuitable to their taste, until they find themselves arguing, serendipitously, before a majority of Supreme Court justices obedient to their ideologies, this in direct rebellion to the principles of stare decisis, or settled law. Once the matter has been adjudicated to their satisfaction, they will then cling to stare decisis as if it were the instrument of eternal life, using it to bludgeon into submission anyone who dares challenge the law legislated from the bench.
The foundation of the Constitution is based on Natural Law (God’s law), and the expounding disquisitions of Blackstone, Locke, Montesquieu, and others, along with the basis for our constitutional structure, dating back more than 1700 years. Our system has the capability of being self-correcting each time the system circles back to a more qualified set of jurists whose loyalties lie with the Constitution and their oath of office, but the preposterous intellection that being shackled to bad law by virtue of its length of time on the books is absurd, and quite frankly, un-American.
Judges fall under two categories today–liberal and conservative. These two descriptions are better suited to summarize the political tableau of the United States than to summarize its judges. The terms liberal and conservative are problematic for veraciously describing judges–especially Supreme Court justices. The terms liberal and conservative cannot accurately be used to assay the constitutional disposition of any sitting judge or law professor.
The term liberal does not describe the reason a school of law will expound self-serving case law to further ideology at the desecration of this country’s founding charter. The term liberal does not accurately describe the reason a judge will flagrantly adjudicate contrary to the Constitution, use contaminated case law, or the reason attorneys will passionately pursue cases in such a manner as to pervert the Constitution if the outcome is favorable to their ideologies. In contrast, the term conservative does not best describe why judges will adjudicate, to the best of their knowledge, based on the original intent of the Constitution, rather than rely on case law that may or may not be constitutional. More definitive descriptions instead of liberal or conservative judges could be reached by supplanting the term liberal with constitutional anarchist and conservative with constructionist. The only concessionary middle ground would be the application of the Constitution, adjusted for unforeseen advancements in society, but keeping the fundamental meaning intact. Justice O’Connor, before her retirement, and currently Justice Kennedy, were, and are, considered swing voters on the Supreme Court, sometimes ruling as constructionists and sometimes ruling as constitutional anarchists; the two cannot be reconciled and re-packaged as moderate. Neither label would apply because they are capricious jurists and will vote for an ideology, or in Kennedy’s case, suffer the allegiance of stare decisis.
Kennedy sided with O’Connor, upholding Roe v. Wade in Planned Parenthood v. Casey by reaffirming abortion is a right under the Due Process Clause of the 14th Amendment. O’Connor created a constitutional right to partial-birth abortion in Stenberg v. Carhart. Since Kennedy stated that he would probably not overrule Roe v. Wade because of precedent, even though he has indicated he is opposed to Roe v. Wade from a constitutionality perspective, he would let it stand because it has become settled law.
Without delving into the Supreme Court’s original intent or Marshall’s redefining of the court’s role regarding judicial review, and the Supreme Court as the omnipresent mediator of the Constitution, of the generally accepted protocol for the Supreme Court to accept or reject a case, the most fundamental principle of that acceptance is as simple as discerning whether it is a federal or state issue, which if the court had been guided by the Constitution instead of ideology, politics, and at times, prosaic arrogance, such perpetually and malignantly defective laws such as Roe v. Wade, etc., would have been summarily remanded back to the states to exercise their rights under the Constitution to adjudicate their own state laws.
Indulge in a moment of fantasy and imagine Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, Steven Breyer, Barack Obama, Warren Burger, Thurgood Marshall, and the ACLU transported back in time, with the purpose of arguing before Thomas Jefferson, John Adams, Alexander Hamilton, and James Madison the merits of why the Ten Commandments should not be displayed in a courthouse or at any government building within the United States, the separation of church and state, why war memorials on government land are unconstitutional, why the government has the right to force all Americans to purchase insurance, or any other law on the books outside the limited parameters of Congress’s enumerated powers under the guise of the Commerce Clause. The hilarity of the dialogue and arguments between this gaggle of constitutional anarchists and the court would be bountiful. To even speculate the outcome would be an exercise in futility. These 21st century legal impotents would be remarkably ill-equipped, armed only with their ideology about what the Constitution should have meant or said, wielding irrelevant case law to argue their perverse interpretation of what these men meant when crafting the Constitution. This to a congregation of American paladins whose primary school education surpassed the entirety and quality of their own advanced law degrees. What would this collection of constitutional recalcitrants, who swore an oath to defend the Constitution, say to James Madison, the primary author of the Constitution, who stated, â€œWe have staked the whole future of American civilization, not upon the power of government, far from it. Weâ€™ve staked the future of all our political institutions upon our capacityâ€¦to sustain ourselves according to the Ten Commandments of God.â€ This decorous and intellectually commanding gathering of the founders, who would have opened the meeting with a prayer, would not have the comportment to tolerate their inane nonsense more than a few moments–even with the waving around of Jefferson’s letter to the Danbury Baptists, or the case law that, 150 years later, determined what Jefferson meant, and its noxious perpetuity as a result of settled law.
William F. Buckley said regarding Harvard, â€œI’d rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University.â€ One could enlist the first 400 people of the Boston telephone directory, put them in an environment for one year in which they only studied, without supervision or influence, Blackstone’s Commentaries on the Law, Locke’s Two Treatises of Government, Polybius’ The Rise of the Roman Empire, Montesquieu’s Spirit of the Laws and Science of Politics, and the United States Constitution, along with its amendments, the debates, the minutes of the authors, and the Federalist Papers. After one year of study, void of exposure to any constitutional case law, any random nine would be better equipped and qualified, notwithstanding the idiosyncratic nuances and elephantine U.S. legal system protocol, to sit on the Supreme Court than the entire staff of either Yale or Harvard law school, or the majority of Supreme Court justices that sat on that bench during the 20th and 21st centuries.
Jim Byrd's website is A Skewed View.