Tag: supreme court

How to End the Loophole Surrounding Federalism

By Jack Shields | United States

The drinking age in most states in the United States is twenty-one. This fact is a great disappointment to me having turned eighteen this year. But the fact the age is twenty-one rather than eighteen isn’t even the most disappointing part. It’s the reason why the drinking age is twenty-one. Most states have this as their drinking age because they were coerced into doing so by the federal government using a technique that was held as constitutional in the case South Dakota v. Dole. The decision handed the federal government a mechanism by which they may go around the very idea of federalism and force the states to submit to their will, and must be overturned.

The Effects of Prohibition

In 1919, we as a nation decided that legislating morality was a good idea, and ratified the Eighteenth amendment prohibiting the sale of alcohol at a federal level. Unsurprisingly, Americans did not respond well to being told what to do, and the disaster that was prohibition was finally ended with the ratification of the Twenty-First Amendment in 1933. Section Two of the Twenty-First amendment clearly stated that states had a right to regulate alcohol if they so choose, but the federal government no longer had a say in the matter. Yet, when has a constitutional provision ever been enough to stop our federal government from expanding their scope of power and informing us ignorant, ordinary people what is moral and right to do?

Congress passed a law in 1984 which required the Secretary of Transportation to withhold five percent of federal highway funds for states that did not adopt a drinking age of twenty-one. This was challenged by South Dakota, which at the time had a drinking age of nineteen. The Supreme Court ruled that this law did not violate the spending powers of Congress or the Twenty-First Amendment. Their logic for this was because the law was for the general welfare of the nation, and the way Congress went about achieving this was reasonable, then the law was within Congress’s constitutional bounds even if they were indirectly trying to achieve a goal not within the purview of Congress or the federal government in general.

The Abandonment of Federalism

This logic has now been widely accepted. In my Government class, we had to create our own bills and have our own Congress as an assignment in order to learn how Congress worked. Our teacher informed us that we didn’t have to worry at all about the fact the federal government has very few enumerated powers. We could make our bills about any subject as long as, instead of just creating the policy at the federal level, our bill listed what we wanted and what we would be willing to take away from the states if they didn’t comply. This is not federalism. This is the system my parents had for me when I was little, where if I didn’t obey them then Santa would not be coming that year.

The federal government and the states should not have a parent-child relationship. The way it was supposed to go was the federal government would have a small list of enumerated powers in which their laws would be the Supreme Law of the Land. These were policies that needed to be uniform throughout the states in order to have one country such as a single currency and regulating trade with foreign nations. But other than that, everything was left up to the states. The states were their own independent government, and with powers not enumerated to the federal government, the states’ law was the Supreme Law. That is the very idea of federalism and of limited government, and sadly we do not have that right now because of this decision.

If the federal government is supposed to have limited, enumerated powers, and nothing more, then indirectly forcing the states to do something not within the scope of their power is clearly a loophole that needs to be shut. But how? The federal government currently gives funding to the states for many things. And both the states and federal government feel the need to legislate morality on many issues like alcohol, marijuana, and many others. Whether either of these things is good is an issue for another time. It’s how things are and a fix to this problem needs to fit into that reality. So the federal government is giving funds to the states and giving money inherently grants the authority to withhold money. What should justify withholding said money?

The Solution

It should all be based upon the federal government’s enumerated powers. This is the most logical conclusion, which is clearly seen when looking at this type of situation with any other entity. If you have a phone, you have a deal with a phone company wherein they provide you with a data plan and you pay them for it. If you disobey their terms and conditions pertaining to the purchase of the data plan, it is completely reasonable for the company to cease to provide you with those things. But if you didn’t pay your rent that month, it would not be an appropriate justification for the phone company to cease to provide their services because that has nothing to do with the relationship between you and the phone company. The relationship between the federal government and state governments should be the same way.

From 1919 to 1933, it would have been appropriate for the federal government to withhold funds for disobeying their will pertaining to alcohol. Regulating it was an enumerated power and their law is the Supreme Law. But it is not an enumerated power anymore, and therefore they have no place in regulating it. Funds should only be withheld in cases wherein that pertain to an enumerated power. If the federal government wants to withhold funds because states are disobeying immigration laws, they can. Because that’s a federal power. But if the federal government wants to withhold funds because a state doesn’t pay teachers enough, that would not be allowed as that is not an enumerated power of the federal government and is therefore outside the natural bounds of the relationship between the federal and state governments.

If we are to have a system of federalism and not a system of a parent like authority dictating to their children what is okay and what isn’t we must close all loopholes by which the federal government may overstep both directly and indirectly, their natural, enumerated powers. In order to do this, it is clear South Dakota v. Dole must be overturned and replaced with a standard by which federal funds may only be withheld in cases wherein the federal government wishes to directly influence a state’s behavior pertaining to an enumerated power of the federal government.


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Pass Mark Levin’s Supreme Court Amendment

Jack Shields | United States

This week, Republicans were greatly disappointed while Democrats were pleasantly surprised. Justice Brett Kavanaugh sided with the four liberal justices and Chief Justice Roberts in declining to hear a case about the subjects of abortion and Planned Parenthood. It now appears the newest justice may be less willing to look at Roe v. Wade than some believed. There has, of course, been major speculation on just how conservative he will be.

After all, an unelected court of nine lawyers will decide many issues we care deeply about. Of course, they must clearly possess the knowledge and wisdom the rest of us lack in knowing what our rights mean. This is not at all what the framers intended the Supreme Court to be; that is why we must pass TV and radio host Mark Levin’s proposed Supreme Court amendment to restore checks and balances.

The Mark Levin Amendment

SECTION 1: No person may serve as Chief Justice or Associate Justice of the Supreme Court for more than a combined total of twelve years.

SECTION 2: Immediately upon ratification of this Amendment, Congress will organize the justices of the Supreme Court as equally as possible into three classes, with the justices assigned to each class in reverse seniority order, with the most senior justices in the earliest classes. The terms of office for the justices in the First Class will expire at the end of the fourth Year following the ratification of this Amendment, the terms for the justices of the Second Class will expire at the end of the eighth Year, and of the Third Class at the end of the twelfth Year, so that one-third of the justices may be chosen every fourth Year.

SECTION 3: When a vacancy occurs in the Supreme Court, the President shall nominate a new justice who, with the approval of a majority of the Senate, shall serve the remainder of the unexpired term. Justices who fill a vacancy for longer than half of an unexpired term may not be renominated to a full term.

SECTION 4: Upon three-fifths vote of the House of Representatives and the Senate, Congress may override a majority opinion rendered by the Supreme Court.

SECTION 5: The Congressional override under Section 4 is not subject to a Presidential veto and shall not be the subject of litigation or review in any Federal or State court.

SECTION 6: Upon three-fifths vote of the several state legislatures, the States may override a majority opinion rendered by the Supreme Court.

SECTION 7: The States’ override under Section 6 shall not be the subject of litigation or review in any Federal or State court, or oversight or interference by Congress or the President.

SECTION 8: Congressional or State override authority under Sections 4 and 6 must be exercised no later than twenty-four months from the date of the Supreme Court rendering its majority opinion, after which date Congress and the States are prohibited from exercising the override.

Restoring Checks and Balances

This amendment, which Levin proposes in his book, The Liberty Amendments, is the best way to put the Supreme Court back in its place and restore checks and balances.

The Supreme Court was never supposed to be this powerful. Alexander Hamilton claimed in The Federalist No. 78 that the judicial branch was to be the least powerful of the branches. Though it has judgment, this pales in comparison to the force and will of the other branches. It, after all, depends on the executive and legislative branches for cases to hear.

Though this was true for the first 14 years of the Constitution, it soon changed. After the landmark decision of Marbury v. Madison took hold in 1803, it forever changed the power structure of our federal government and effectively derailing checks and balances. It was the first decision that established judicial review. Since then, the Court’s decision has been final in determining if a law is unconstitutional.

The Failure of the Framers

This, in and of itself, is not a bad concept. In fact, it’s probably the correct one. With this feature, when the court decides to guard a liberty, no other branch of government may prohibit it. This directly protects the very idea of limited government. If we are to have a Constitution that restricts Congress, then there must be checks on the power of Congress, making judicial review desirable. However, the framers failed to design this check in the Constitution. Therefore, it is based on precedent, rather than the actual Constitution. What this has done is left the power unchecked. As a result, the Supreme Court basically rules above all; five unelected lawyers can create a ruling all Americans must submit to.

The idea of such an amendment to this, though, has faced widespread opposition. Many feel that Congress or the states will abuse this power and that it is best to keep the judiciary independent and allow it to do its job. In fact, many don’t believe that it’s any other branch’s responsibility to determine if what they’re doing is constitutional.

An Unchecked Branch

However, not everything is simply up to the Supreme Court to decide, despite popular belief. Why would the framers waste all this time designing checks and balances to leave the Judiciary unchecked? James Madison did say in The Federalist No. 51 that men are not perfect and require checks on power. The government must both control men and itself. 

Are the lawyers on the Supreme Court somehow exempt from this? Of course not. All 114 Justices that this country has had have something in common: they’re human. Thus, they all are prone to corruption and to occasionally get something wrong, just like the legislature and executive. So, Congress or the states may abuse the power that the Levin Amendment would grant them; that’s the point of checks and balances. The competing ambitions will cancel each other out. Just like Congress and the states, the Supreme Court has ambitions and biases, too. One needs to only look at the Dred Scott decision to see justices getting political. These ambitions need a check, and this amendment provides that.

Another clear issue with the Supreme Court that the Levin Amendment would solve is lifelong appointments. Perhaps the biggest mistake of the framers was not giving a single position in the Constitution a term limit. While the 22nd Amendment remedied this problem for the president, the Supreme Court still serves for life. This causes two problems.

Age and Vacancy

First, the justices age, and as they do, they start to lose their abilities. Mark Levin notes several instances of this in his other book, Men in Black: How the Supreme Court is Destroying America. Chief Justice Rutledge was deranged and suicidal after the death of his wife, Justice Baldwin was losing his mental ability, Justice Grier had paralysis, and Justice Clifford suffered a stroke.

The work quality of them and many more occurred with old age. and there were many more whose quality of work declined with old age. This is a result of being human and no fault of their own, but it is a weakness of the Supreme Court that we must resolve.

The second problem is that it has overly increased the value of a vacant seat. One of the biggest issues in the 2016 election was that either Donald Trump or Hillary Clinton was going to pick the next Supreme Court Justice after the death of Justice Scalia. In fact, some conservatives on the fence about Trump only voted for him to keep the Supreme Court more conservative. Indeed, the country as a whole feels this way.

With a Republican majority government, we are watching to see just how well Justice Ginsburg is feeling today. As soon as the Democrats are back in power, the health of Justice Thomas will be the center of attention. This death watch feels quite immoral. Having a single term limit of twelve years with 3 seats up every four years solves this. We will no longer sit and watch, anticipating who will die when.

A Way to Control the Court

With this amendment, making sure your guy is in office when the vacancy opens up is far less important. With it happening every four years, both sides will likely get to pick justices. This means that you won’t have to compromise your values to ensure the Court leans towards your beliefs. With this in place, the Supreme Court will be less powerful. Such a move is essential to continue checks and balances.

The Supreme Court is far too powerful. We must find a way to bring back checks and balances. Both the Court and the rest of the government must not have too much power. This amendment is clearly the best way to do it.


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Political Extremism: Kavanaugh Accusations

By Fritz Stephey | United States

When word filtered out in the news earlier this week that an anonymous letter was submitted to Senator Dianne Feinstein making allegations that a younger Brett Kavanaugh (when he was somewhere around age 17) had committed a rather vile act of sexual assault, I am honestly upset about my first thought on the matter.

I thought, “Well isn’t this convenient.”

I should have never thought that because that is a little more than belittling and demeaning to the accuser. Regardless of some of the extreme lengths we have seen during the Kavanaugh hearings, mostly from what I can tell were people wanting their 15-seconds of “Blue Wave 2018” fame, I should not be so pre-judgmental about a severe allegation.

It takes a lot to say that, in this day and age. People often do not come out and say “I was wrong.” We’ve seen that filter down from multiple politicians, pop culture icons, and even the average person who is convicted and sentenced to prison for a heinous crime.

Granted, I never tweeted that thought out, nor posted it on social media. I try to think twice about the initial response I have to one line of information before doing that anymore. My initial Twitter statement came after Christine Blasey Ford revealed herself to be the anonymous source:

Quick Thoughts on the Kavanaugh Allegations

By Glenn Verasco | Thailand

I would like to share a few thoughts about the sexual assault allegations that Christene Blasey Ford is making against SCOTUS nominee Brett Kavanaugh. This is meant to be an analysis, not a summary, so I do not overtly describe the details of the allegation. But basically, she accused him of sexual assault against her when the two were teenagers. The bullet points below sum up an analysis of the situation.

Sexual Assault

  • Being 17 and drunk does not excuse sexual assault.
  • What constitutes sexual assault is not well-defined or well-understood. The lines between playing around, making a sexual advance towards someone, having a momentary slip in judgment, and earnestly attempting to force someone into a sexual encounter can be blurry. It is even blurrier for teenagers and was certainly even blurrier for teenagers of yesteryear.
  • As a socially liberal individual, I do not believe that government or public oversight of teenage sexual interaction is a good idea. Sex and human relationships are generally too complicated for third parties to be able to fully comprehend, so authorities should only be consulted in extreme circumstances. Otherwise, young people, as well as adults, should be free to take risks amongst each other.

The Law

  • As the alleged incident between Kavanaugh and Ford took place 35 years ago, we are long past the statute of limitations. This issue is about conduct and character, not the law.
  • Although our legal system places the burden of proof on the accuser and presumes non-guilt until guilt is proven beyond a reasonable doubt, this is irrelevant in the court of public opinion or SCOTUS nominations.
  • Believing someone is innocent until proven guilty is a value that I happen to share, but outside a court of law, it is a personal view, not a legal one. Reasonable people can disagree here.

The Sniff Test

  • Christene Blasey Ford is probably telling the truth, at least in part. There is some documented history of Ford discussing the matter in the past, and it is hard to imagine that she or anyone else would make up a story like this completely out of thin air.
  • Remembering the exact details of an event from 35 years ago is impossible for both Kavanaugh and Ford. Our brains remember certain details of our history, and our imaginations fill in the rest. This makes it difficult to accept either party’s version of the story without substantial evidence or witness testimony.
  • Emotion can also cloud our judgment as what we feel we experienced may not mirror what we actually experienced.
  • Ford’s lawyer Debra Katz defended Al Franken when he was accused of sexual misconduct, saying, “He did not do this as a member of the U.S. Senate.” This is obviously true, but, unlike Kavanaugh, Franken was an adult when his misconduct took place. Katz appears to be a partisan lawyer, not an impartial defender of the Constitution or human rights.
  • Ford is on the left-wing of the political spectrum, and thus, certainly has a political bias against a textualist judge like Kavanaugh.
  • Neither Katz’s nor Ford’s partisanship has any bearing on the accuracy of Ford’s story, but it does make them less credible.
  • Kavanaugh and Mark Judge, Kavanaugh’s friend also accused of assault, deny the allegations wholesale.
  • By all accounts, the alleged incident between Kavanaugh and Ford is in no way representative of Kavanaugh as a person. However, one’s generally saintly behavior does not negate one’s sins.

Politics

  • Senator Dianne Feinstein knew of Ford’s allegations before Kavanaugh’s Senate confirmation hearing but chose not to question him about it in any way. Feinstein is obviously using Ford’s story as a political weapon, which is shameful.
  • Regardless of how true Ford’s allegations are, Feinstein clearly timed the release of her name and story as a way to derail Kavanaugh’s nomination in the 11th hour. The Senate vote to confirm him is scheduled to finish within a week.
  • Democratic Senators have been against Kavanaugh’s confirmation since long before his confirmation hearings and put on an embarrassing and hysterical display of partisanship during them. This includes attempting to smear Kavanaugh’s assistant as a white nationalist for momentarily resting her hand in the “a-okay” position, which some in the media falsely describe as a racist dog whistle.
  • Senate Republicans can afford to delay the vote for at least another month without any risk of losing the Senate or their ability to confirm justices without any Democrat support in November’s midterms (though Senate Judiciary Committee rules may come into play here).
  • Up until Democrats blocked Ronald Reagan’s nomination of Robert Bork, there was little partisanship in these proceedings. Before Bork, the average SCOTUS nominee received 87% Senate approval and 49% were confirmed unanimously. Since Bork, partisanship in voting has dramatically increased, especially from Democrats.
  • Trump’s first SCOTUS nominee, Neil Gorsuch, had no allegations of misconduct of any kind. Yet, the Senate confirmed him by a slim margin of 54-45, and only three Democrats voted in his favor. Justice Alito received only four votes from Democrats in 2005. This shows that many Democrats are clearly in it for the politics, rather than justice or character.
  • Republicans have certainly become much more partisan too, refusing to even hold confirmation hearings for President Obama’s last SCOTUS nominee Merrick Garland, arguing that it is tradition to deny a lame duck president’s nominations until after ensuing elections.
  • It can be argued that 11th-hour sexual assault allegations to derail SCOTUS nominations sets a terrible precedent, but with as much partisanship as we are seeing now, the precedent has already been set.

Summary

  • The allegations against Kavanaugh should not be categorically denied, but should certainly not be believed at face value. Both Republicans and Democrats are playing politics, and it is unclear to me that Kavanaugh’s alleged discretions are so damning that he should be denied an opportunity to serve on the Supreme Court. If Republicans have a way to investigate the situation and still have time to nominate Kavanaugh before midterms, they should do so. However, it would be hard to blame them for proceeding as planned as there is nothing they can do to satisfy the Democrats short of leaving Justice Kennedy’s seat vacant until a left-wing justice is nominated.
  • President Trump could have avoided this mess by nominating Amy Coney Barrett instead of Kavanaugh. Besides being a far better judge, nominating a woman would have taken the #MeToo card out of Democrats’ hands.

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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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