Tag: kavanaugh

The Supreme Court: Enemy of Liberty, Friend of Authoritarianism

By Tj Roberts | United States

Brett Kavanaugh is a loss to liberty, but he is just a symptom to a much worse disease. That disease is the Supreme Court of the United States. Since Marbury vs. Madison, the Supreme Court has been used as a weapon for expanding government power, irreparably damaging individual liberty, and destroying local sovereignty. If the Supreme Court actually acted within its constitutional role, the nomination of Kavanaugh would not be a problem.

To start, the power of judicial review was not given to the Supreme Court by the Constitution. Rather, it was given to the Supreme Court by the Supreme Court itself. In the 1803 Marbury vs. Madison decision, Justice John Marshall gave the Supreme Court the power of Judicial Review, completely subverting the Constitution. By gaining the power of judicial review, the Supreme Court, a small collection of robed politicians, gained the ability to decide whether or not any and all federal/state/local laws are in accordance with the Constitution.

The Supreme Court Justices 2017
The Supreme Court Justices, 2017

Needless to say, this power is immense. With there being eight (and likely soon to be nine) Supreme Court Justices, fewer than ten people have full control over whether or not your rights are protected. But the trend of the Supreme Court has been the disintegration of economic liberty and disregard for personal liberties.

While the fact that the Supreme Court can declare a law unconstitutional has done enough damage, the fact that the Supreme Court will write the law through judicial review adds insult to injury. Roe vs. Wade, for example, passed a federal law stating that state and local governments cannot make laws that restrict abortion. If Hillary Clinton was the president, imagine the damage to economic liberty, gun rights, and private property her nominees would do! While it is worth celebrating every win for liberty, we must remember that the Court should not be able to write the law. If you would not wish your worst enemy to have this power, you must not allow even your closest ally to have this power.

In other words, the Supreme Court is diametrically opposed to liberty. Eight people have more influence over your life than any other individual. The path of the US that the SCOTUS has sent it down is one of centralization and totalitarianism. Even the DC vs. Heller decision opened the door for “reasonable” gun laws. When the court has enough power to claim that a class of human beings are not people (see Dred Scott) or may be locked in concentration camps (see Korematsu), the court has too much power.

How to Stop Government Growth without the Supreme Court

“But what will we do to stop unconstitutional law?” some may ask. This answer has two parts. For one, the Supreme Court has only aided the effort to grow the federal government. Were it not for the jurisprudence of the Court, economic activity would still be considered a fundamental liberty (see footnote 4 in the United States vs. Carolene Products). If we abolished the Supreme Court today, the federal government’s greatest cheerleader would seek to exist.

Second, Thomas Jefferson and James Madison gave us the exact answer to this question. In the 1798 Kentucky and Virginia Resolutions, Jefferson and Madison made it clear that the federal government is inclined to grow and that it is the duty of the states to nullify tyrannical federal legislation. The Tenth Amendment grants a great degree of power to state and local government so that the people will have more power through localization. The Kentucky and Virginia Resolutions take that power to its logical conclusion: local and state governments have not just the right, but the duty to resist federal tyranny.

Whereas the Court is part of the federal government, it has no incentive to hold back federal growth. The people and local governments, however, have every incentive to do so. The Supreme Court is the enemy of local and individual sovereignty. It is far too powerful. Not only can it cancel a law (at any level, mind you), it can write the law. Liberty cannot be achieved when society is effectively owned by a handful of seemingly omnipotent politicians.

Originally published on freedomandeconomics.org.

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Rand Paul is in a Bind

By Glenn Verasco | @GlennVerasco

It’s the rainy season in Thailand, which means commuters like me are primed to get wet on our way to and from work. To me, the worst thing about this is constantly having rain-soaked shoes. There are few worse ways to start your day than feeling yesterday’s rainwater seep through a fresh pair of socks as you place your feet in shoes that have not had time to dry.

As bad as monsoon shoes are, I’d take them over Kentucky Senator Rand Paul’s shoes any day of the week.

President Trump has recently nominated Brett Kavanaugh from the United States Court of Appeals in Washington D.C. to replace Justice Anthony Kennedy on the Supreme Court. Unlike Justice Neil Gorsuch, Kavanaugh’s brand of constitutional originalism does not show much respect for the 4th Amendment. For those who do not know, the 4th Amendment intends to protect Americans against unwarranted searches and seizures. Without this amendment, police and other law enforcement officials may not be legally barred from rummaging through or confiscating our property, private documents, or even our bodies without just cause.

If you want to know more about Kavanaugh’s unfortunate history with the 4th Amendment, you can listen to Judge Andrew Napolitano, maybe the most pro-liberty judge in American history, discuss it with Tom Woods here.

Rand Paul, a 4A diehard and the 50th of the GOP’s 50-49 senator majority (John McCain, who is currently unable to vote for health reasons, would make 51) finds himself in an extremely tough situation as his vote may ultimately determine whether or not Kavanaugh is confirmed. The following are what I consider to be the most probable potential outcomes depending on the choice Rand makes.

The Sellout Scenario

If Rand Paul votes in favor of Kavanaugh, he will almost certainly become a SCOTUS justice, which could put all of our 4th Amendment rights on the line for decades to come. In the process, Rand would lose plenty of pro-Constitution credibilities. The Liberty movement would pile on with accusations that Rand Paul lacks the gumption his father Ron Paul possessed, and is just a slightly better version of the swamp creatures lurking throughout Washington.

From a political standpoint, Rand would likely secure his position in the Senate if he decides to run for reelection in 2022. I imagine that the typical Republican voter is far more concerned with making sure a Liberal justice does not take the place of Anthony Kennedy than he is with the technicalities of what the 4th Amendment entails, which means Rand’s seat in the Senate, unlike his credibility, would likely be safe.

In the long run, keeping Rand’s vote in the Senate for years to come could serve as more valuable than having a perfect originalist justice on the bench as Gorsuch and the four liberal justices (a majority) seem to be on Rand’s side when it comes to 4A. In other words, Kavanaugh’s impact on the 4th Amendment may be minimal anyway.

The Swamp Scenario

If Rand votes against Kavanaugh, he may still be confirmed via red state Democrats. At least three or four senators up for reelection in November are Democrats in Trump country. These senators are often forced to part ways with their party in order to maintain their positions in Congress. Due to their sticky situation, Rand’s decision may not ultimately matter in the confirmation process.

Voting against Kavanaugh would preserve Rand’s pro-Constitution credibility, and would likely have little effect on his reelection prospects as his choice to stand is ground would cost Trump and establishment Republicans nothing.

The Hero Scenario

If Rand votes against Kavanaugh, he may not be confirmed. However, this could work out beautifully for Rand in the end.

By blocking Kavanaugh’s nomination, Rand would help preserve the 4th Amendment (at least temporarily) and bolster his Libertarian credentials. And although he would defy Trump and rain on Republicans’ parade in the short run, sunnier skies could be on the horizon.

If the GOP retains control of the Senate after this year’s midterms (and they are expected to do so), Trump will be given another chance to nominate a more pro-4A justice. If Trump’s next choice winds up being more Gorsuchian, Rand will have taken a massive political risk and won big for the country as well as himself.

The Scapegoat Scenario

If Rand votes against Kavanaugh, he is not confirmed, and the GOP loses the Senate, Trump may not get another chance to nominate a SCOTUS justice as president. If a Democrat beats Trump in 2020, and Democrats retain control of the Senate, you can bet that a “living document” justice will be placed on the SCOTUS bench, probably resulting in a liberal majority for years to come.

Under these conditions, Rand may succeed in preserving the 4th Amendment. Conversely, the 1st, 2nd, 5th, 9th, 10th, and many other rights guaranteed by the Constitution could fall by the wayside.

Rand would have committed political suicide in the process, and a future reelection bid could result in comical defeat.

Let’s hope for the best.

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What Can We Expect From Brett Kavanaugh?

By Jack Parkos | United States

On Monday night, President Trump chose Brett Kavanaugh as his nomination to replace Justice Kennedy. Now he needs Senate approval to see if we will join the Supreme Court. People across the political spectrum have mixed opinions on this issue. Most Republicans are happy to have a conservative in the court.

The Supreme Court has immense power when it comes to Constitutional interpretation. Brett Kavanaugh has the potential to change the country for better or worse. His views will be valuable predictors for the precedent he may set.

There are several issues people have been talked about a lot lately. Abortion has been a big one. Although Trump has claimed he hasn’t brought abortion up with Kavanaugh, he did promise to only nominate only pro-lifers.  Both sides of the aisle are talking about it, arguing about whether he should and will do it or not.

This begs the question: what will Kavanaugh do? Would he support overturning Roe V. Wade? It’s hard to tell. Kavanaugh has been very vague on his abortion stance. In 2006 he claimed that abortion has already been decided by the Supreme Court. However, Last October, Kavanaugh dissented in a ruling that allowed a teenage undocumented immigrant to leave custody to receive an abortion. He has supported other abortion restrictions as well. At this point, it is very hard to tell if he would overturn Roe V. Wade. He has kept his personal stance on abortion private.

The left has been very critical of Trump’s pick, though based on their past record, they tend to get mad at whatever Trump does. They aren’t the only ones criticizing though, Representative Justin Amash is disappointed as well. Amash tweeted,

Kavanaugh is not another Gorsuch—not even close. Disappointing pick, particularly with respect to his record. Future decisions on the constitutionality of government surveillance of Americans will be huge. We can’t afford a rubber stamp for the executive branch.

What is frightening is that Kavanaugh has a history of supporting warrantless surveillance. Here are some statements from Kavanaugh in November 2015 when he rejected to hear a case on the NSA unwarranted phone collection.

the Government’s metadata collection program is entirely consistent with the Fourth Amendment.

In my view, that critical national security need outweighs the impact on privacy occasioned by this program.

He already supported unwarranted wiretapping done by the NSA. It’s fair to say if there is a case regarding the 4th Amendment, Kavanaugh will take the more authoritarian approach.

Many also are talking about healthcare. In 2011, Brett Kavanaugh did oppose the upholding of the individual mandate under Obamacare. He said that the mandate was “a law that is unprecedented on the federal level in American history,” stating that the Taxing Clause “has not traditionally authorized a legal prohibition or mandate.” Conservatives and Libertarians should be very pleased with his stance on the individual mandate.

Kavanaugh also opposed the ruling in Massachusetts vs the EPA. Which ruled that the EPA could regulate greenhouse gasses based of the “Clean Air Act of 1963”, although the act did not specifically state carbon dioxide could be regulated under this act. The court gave the EPA this authority.  Kavanaugh dissented this, believing the EPA went beyond its authority. He has stated he is concerned with Climate Change, but that he knows it’s not a courts job to regulate it. Kavanaugh seems to strongly believe in the role of the court in America.

If Kavanaugh gets Senate approval, we could see a change in the court’s rulings. Some for better some for worse. What we need is for him to protect the Constitution and preserve our liberties.

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Libertarians Should Oppose Brett Kavanaugh

By Kenneth Casey | United States

At 9 P.M. EST on Monday, President Trump made the decision the whole country was anticipating ever since Justice Kennedy retired on June 27th. That was announcing his nominee to replace him.

The list was narrowed down to 4 at the start of the day. Trump ended up choosing Brett Kavanaugh, who currently serves as a Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit.

When President Trump nominated Judge Neil Gorsuch to the Supreme Court to replace the late Antonin Scalia, almost every noteworthy faction of the American Right praised the pick. From libertarians to neocons, to establishment Republicans to tea partiers and social conservatives, the nomination of Gorsuch brought them all together because they all had a favorable opinion of the nomination. The same story does not apply to Kavanaugh’s nomination, as it drew many mixed reactions from the right.

Republican establishment figures such as Mitch McConnell, Paul Ryan, and Orrin Hatch had high praise for the pick. McConnell and Hatch claim they will do whatever is necessary to get him confirmed. Although it seems likely Kavanaugh will have the support of the neoconservative wing of the Senate, Tom Cotton, who is held in high regard by prominent neoconservatives, expressed concern over the potential nomination of Kavanaugh to the Supreme Court about five days ago.

Many conservatives offered a mix reaction, with Ben Shapiro calling the pick a “double, not a home run”, pointing out his decision to avoid jurisdiction in Obamacare and government provided contraceptive coverage as his main critiques. Ted Cruz, who, prior to the nomination becoming official, also expressed discomfort with Kavanaugh, seemed to have a change of heart. He announced on Twitter he “looks forward to confirming his nomination”. Rick Santorum, however, criticized the president for “bowing down to the elite in Washington” by selecting Kavanaugh.

So, how should libertarians feel about Kavanaugh? Is he another principled originalist constitutional conservative in the likes of Judge Neil Gorsuch who will protect our 4th amendment rights? Or is he just another Judge Roberts, a Republican-appointed judge who will sacrifice our constitutional liberties from time-to-time. From the looks of it, it appears to be much closer to the latter. 

Justin Amash, by far the most libertarian member of the House, called the pick disappointing, tweeting the following about Kavanaugh:

I think Amash is 100% correct in his analysis of Kavanaugh. He’s definitely not another Gorsuch, who proved in the Carpenter V. United States case that he might be the most pro-4th amendment justice on the court. He was the only justice who used the 4th amendment for the basis of his opinion. Gorsuch wrote the following:

“The Fourth Amendment protects ‘the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.’ True to those words and their original understanding, the traditional approach asked if a house, paper or effect was yours under law. No more was needed to trigger the Fourth Amendment.”

Kavanaugh, as Justin pointed out, is rather weak on the 4th amendment. He holds the common but flawed position that the security the government will provide through the metadata collection is worth the amount of privacy that would be given up by innocent Americans.

Besides the 4th amendment, another area of concern libertarians should have towards Kavanaugh was his opinion towards upholding Obamacare. He believed, due to the legal theory of judicial constraint, the courts had no position in making a ruling on Obamacare and therefore avoided jurisdiction. He shared a similar opinion to Justice Roberts on this issue, believing that the individual mandate in Obamacare that required Americans to have health insurance, was not a fine, rather a tax, and taxes cannot be adjudicated by the DC Circuit Court of Appeals. His opinion was later adopted by Justice Roberts, who ultimately claimed Obamacare was constitutional and voted to uphold it at the Supreme Court.

Libertarians believe that this opinion is invalid because judicial restraint should not have been used in this case. It would definitely be the court’s role to overturn Obamacare for its unconstitutional individual mandate under the Commerce Clause.

This morning, one of the top libertarian legal minds in the country, Judge Napolitano, gave his opinion on Brett Kavanaugh, stating he was disappointed by Trump’s choice of Brett Kavanaugh for the Supreme Court. The judge called him “the heart and soul of the DC establishment”.

I asked libertarian-leaning Republican Congressman Thomas Massie for his opinion on Kavanaugh’s nomination, and he responded to me with this:

It appears Massie wants to analyze whether Kavanaugh would be an upgrade to Kennedy on the Supreme Court before making the decision whether or not to support his nomination.

Because of his inconsistent positions regarding issues that don’t align with the constitution, it is worthwhile for libertarians to object to his nomination.

How does Rand Paul feel about Kavanaugh’s nomination?

Shortly after Trump announced his nomination of Kavanaugh to the Supreme Court, Rand tweeted out this regarding Kavanaugh:

This reaction was very divergent from other Republican Senators who pledged to support his nomination, as Paul seems to be undecided about how he’ll vote and will wait for the upcoming hearings.

Days prior to Kavanaugh’s nomination being announced, Rand privately urged President Trump not to pick Kavanaugh, citing his concerns with “Kavanaugh’s role during the Bush administration on cases involving executive privilege and the disclosure of documents to Congress.” According to Bloomberg reporter Steven Dennis, Rand spoke to him prior to the nomination, stating he would evaluate Kavanaugh’s record if he were to be the pick, while also saying he wants a justice who agrees with Neil Gorsuch on privacy, but as I covered above, Kavanaugh has almost the complete opposite position as Gorsuch when it comes to government spying and the 4th amendment.

So just how much say will Rand Paul’s vote have in deciding whether Kavanaugh gets confirmed? Rand Paul’s vote will be a critical one. With the Republicans having just a 51-49 majority in the Senate and Senator John McCain currently being inactive in the Senate due to health problems, one Republican Senator dissenting from voting in the affirmative could put the nomination in jeopardy if no Democrats cross over the aisle and vote to confirm Trump’s nominee.

Rand Paul will have a decision to make. He could be a hero to libertarians, privacy and 4th amendment advocates, and true constitutionalists by voting against Kavanaugh’s nomination, causing the President to nominate a more constitutional, liberty and 4th amendment friendly nominee to the court. Time will tell whether he chooses to do so, but ultimately, libertarians should oppose the nomination of Justice Brett Kavanaugh to the Supreme Court.

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