Prologue: The Day the Constitution Died

Author’s note: This version of the Prologue differs slightly from the book edition. It is divided into ten parts, each having its own footnotes shown at the end of each part. The parts are:

1.“Breaking . . . Oath and Resolution Like a Twist of Rotten Silk”

2.“Blue Eagle Shot Down in Raid on Brooklyn Chicken Coops”

3.“FDR Wants to ‘Reconstitute’ Court”

4.“When a man takes an oath”

5.“The Judicial Vandals”

6.“Some Litigants Are More Equal Than Others”

7.“Some Litigants Are More Equal Than Others (continued)”

8.“The Law Knows No Fixed Principles”

9.“Real Lawyers: ‘None Such Any More’”

10.“Judicial Power: An Alien Tradition”

***

Part 1: “Breaking . . . Oath and Resolution Like a Twist of Rotten Silk”[1]

Constitutional Oath: “I . . . do solemnly swear (or affirm) that I will support and defend the constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

New Deal Loyalty Oath: “I promise as a good American citizen to do my part for the National Recovery   Administration. I will buy only where the Blue Eagle flies.”

We start the Coroner’s Inquest with this news flashback to the pivotal events and hooplah of 1933-37:

____________________________________________________________________________________

THE NEW DEAL DEALER

“We do our part”

1933

                            “Buy Only Where the Blue Eagle

                            Happy Days are Here Again!

___________________________________________________________________________________________

The 1933 “National Industrial Recovery Act”[2] establishes a “National Recovery Administration” and gives President Franklin D. Roosevelt powers to negotiate codes of “fair competition”[3] for business and industry. If the “negotiations” break down, the president is empowered to “prescribe” the codes himself.[4] Code violators are guilty of a misdemeanor and “subject to fines of “not more than $500 for each offense, and each day such violation continue[d] is deemed a separate offense.”[5]

The centerpiece of the New Deal, the act is thought so crucial that its administrators have created an insignia to promote the National Recovery Administration: a blue eagle with the motto, “We do our part.”

 Soon the blue eagle started appearing everywhere. T.H. Watkins of Smithsonian Magazine gave this  account:

To promote the NRA, [General Hugh S.] Johnson [NRA head] decided he needed some kind of symbol ‘designed for visibility and uniqueness,’ as he put it. The result was the image of a Blue Eagle patterned after the thunderbird ideogram used by the Navajo Indians. Any business that signed a blanket code was entitled to display the blue bird logo and its motto, ‘We Do Our Part,’ with pride. As poster, flag, banner, window sign, windshield sticker, billboard, magazine cover, editorial cartoon—or pot-metal fetish—the Blue Eagle of the NRA seemed destined to become an enduring sign of the times.

For a while, there was no escaping the bird. Towns all over the country got on the Blue Eagle bandwagon. A hundred thousand schoolchildren clustered on Boston Common and were led in an oath administered by Mayor James Michael Curley: ‘I promise as a  good American citizen to do my part for the NRA. I will buy only where the Blue Eagle flies.’ In San Francisco, 8,000 schoolchildren were dragooned into showing their allegiance by forming themselves into a  human Blue Eagle on the outfield in Seals Stadium. In Cleveland, 35,000 enthusiasts gathered in the public square to cheer the unveiling of the Blue Eagle flag while city officials proclaimed the ‘end of the depression.’ In Memphis, 125,000 people watched another 50,000 march in the city’s traditional Christmas parade; on the final float Santa Claus sat resplendent upon a big Blue Eagle, from which perch he threw candy to children. In a New Orleans park, NRA celebrants erected an enormous pyramid on which were inscribed the names of more than 7,000 people and businesses who had taken the pledge; on top of the pyramid was a nine-foot eagle made of blue lights, while red and white bulbs spelled out ‘We Do Our Part.’ In Philadelphia, citizens were soon cheering for a new professional football team whose name was inspired by the general’s icon: the Philadelphia Eagles. In Roanoke, North Carolina, ‘Shanghai Mickey’ offered Blue Eagle tattoos for a mere 50 cents.  In Atlantic City, beauty contestants had the Blue Eagle stamped on their thighs. Big Hollywood studios signed up, too. The Blue Eagle soon could be seen ‘at a theater near you,’ not only in newsreels but sometimes even in the feature film itself. In the Warner Bros. musical Footlight Parade,starring singer Ruby Keeler, a chorus line using flash cards flips up a portrait of Roosevelt before marching into formation to create a huge NRA eagle. * * *

For a while it all seemed to work. By the beginning of September 1933, more than two million businesses had signed blanket codes and collected their Blue Eagles. In spite of all the hoopla, though, the NRA was in trouble, the butt of savage criticism from political conservatives and business people. Senator Gerald Nye of North Dakota spoke for them when he described the Blue Eagle as a “bird of prey on the masses.” Henry Ford simply refused to have anything to do with it. Others lampooned the NRA initials, claiming they stood for such things as ‘No Recovery Allowed’ or the ‘National Run Around.’[6]

__________________

[1] Shakespeare, Aufidius, in Coriolanus, act 5, sc. 6, l. 94-5 @ Shakespeare, William. “Coriolanus.” Great Literature Online. 1997-2010
<http://shakespeare.classicauthors.net/Coriolanus/Coriolanus30.html> (22 May, 2010).

[2] Act of June 16, 1933, c. 90, 48 Stat. 195, 196; 15 U.S.C. 703.

[3] 15 U.S.C. §703 (a). One wonders how these codes could possibly have been consistent with then-existing anti-trust laws.

[4] 15 U.S.C. §703 (d).

[5] 15 U.S.C. §703 (f).

[6] Smithsonian Magazine, May 1999, “The Bird Did Its Part”.

* * *

Part 2: “Blue Eagle Shot Down in Raid on Brooklyn Chicken Coops”

We continue with the news account of the rise and fall of the Blue Eagle:

_________________________________________________________________________________________

THE NEW DEAL DEALER

“We do our part”

May 27, 1935

Blue Eagle Shot Down in Raid on Brooklyn Chicken Coops

FDR Fumes

___________________________________________________________________________________

Black Monday. Today the United States Supreme Court in three cases unanimously struck down major parts of Franklin Roosevelt’s New Deal. In one of the cases, the so-called “Sick Chicken” case,[1] the court held unconstitutional the 1933 “National Industrial Recovery Act”.[2] The act established a “National Recovery Administration” and gave FDR powers to negotiate codes of “fair competition”[3] for business and industry. If the “negotiations” broke down, the president was empowered to “prescribe” the codes himself.[4] Code violators were guilty of a misdemeanor and “subject to fines of “not more than $500 for each offense, and each day such violation continue[d] [was] deemed a separate offense.”[5]

Background of today’s tragic events: One day while soaring above New York City, the Blue Eagle spotted what he thought were some easy prey in Brooklyn. He swooped down on the Schechter Live Poultry Market and the A.L.A. Schechter Poultry Corporation, a Kosher poultry-processing operation. Schechter purchased live birds that then were “schechted” (a term with no known connection to the Schechters) by “schochtim”, that is, ritually slaughtered by men trained in the art, and then sold to retail poultry dealers and butchers. The government indicted both corporations and its operators, Joseph, Martin, Alex, and Aaron Schechter, on 60 counts, and won convictions on 18, including two counts for the minimum wage and maximum hour violations; ten counts were for violation of the requirement of ‘straight killing’, that is, for permitting buyers to buy selected individual chickens taken from particular coops and half coops; two counts for sales without having the poultry inspected or approved in accordance with New York City regulations; two counts for making false reports or failing to make reports relating to the range of daily prices and volume of sales; one count for sales to unlicensed slaughterers or dealers; and last one count for selling an unfit chicken to a butcher.

At issue in the Sick Chicken prosecution was the constitutionality of FDR’s “Live

The esteemed author of the live poultry code

Poultry Code”,[6] which, among many other things, required poultry processors and dealers, like the Schechters, to use the practice of “straight killing”—meaning that chicken customers had to buy by the coops, coop, or half coop; and were prohibited from selecting particular birds.

The Live Poultry Code and the act itself were said by FDR and congress to be “emergency” measures, constitutionally justified as exercises of the government’s powers to “provide for . . . the general welfare” and to “regulate commerce . . . among the several states”—sort of a “from coop-to-soup” view of interstate commerce in chickens.

But the court held that the activities of local poultry processors, such as the Schechters’, could not rightly be ruled “commerce . . . among the states”; such a far-flung ruling would mean that virtually everything else on Earth was also interstate commerce; “commerce” was not so commodious, said the court . The president was clearly upset; he told reporters that the court had adopted a “horse and buggy definition of interstate commerce”.[7] And highly-placed, incredible sources quoted the president as having privately called the court’s ruling “unadulterated chicken schecht”. [8] [9]


What pained the president most was the surprise unanimity: the three liberals on the court voted with the hated Four Horsemen of the Apocalypse and two other “swing” justices against the New Deal; and FDR, the same sources report, is very worried that the unanimous rulings will scuttle his New Deal. But 1936 will be an election year, and FDR apparently wants to steer clear of any confrontation with the court that could create an issue for Republicans. As the English proverb goes, “Revenge is a dish best served cold.” [10]

_________________

[1] A.L.A. Schechter Poultry Corporation v. United States, 295 U.S. 495 (1935); http://laws.findlaw.com/us/295/495.html

[2] Act of June 16, 1933, c. 90, 48 Stat. 195, 196; 15 U.S.C. 703.

[3] 15 U.S.C. §703 (a). One wonders how these codes could possibly have been consistent with then-existing anti-trust laws.

[4] 15 U.S.C. §703 (d).

[5] 15 U.S.C. §703 (f).

[6] Executive order no. 6675-A, April 13, 1934. See Schechter, 295 US at 521-22; http://laws.findlaw.com/us/295/495.html.

[7] Full statement: “Is the United States going to decide, are the people of this country going to decide that their Federal Government shall in the future have no right under any implied power or any court-approved power to enter into a solution of a national economic problem, but that that national economic problem must be decided only by the States?… We thought we were solving it, and now it has been thrown right straight in our faces. We have been relegated to the horse-and-buggy definition of interstate commerce.” President Franklin D. Roosevelt, remarks at press conference, May 31, 1935.—The Public Papers and Addresses of Franklin D. Roosevelt, 1935, pp. 215, 221 (1938). Monday, May 27, 1935, became known as “Black Monday.” One of the decisions the Supreme Court handed down that day was the case of Schechter Poultry Corporation v. United States, to which Roosevelt refers. From Respectfully Quoted: A Dictionary of Quotations, Washington D.C.: Library of Congress, 1989, found @ http://www.bartleby.com/73/1763.html.

[8] http://newdeal.feri.org/court/005.htm

[9]http://newdeal.feri.org/court/004.htm

[10] http://newdeal.feri.org/court/015.htm

* * *

Part 3: “FDR Wants to ‘Reconstitute’ Court”

Flash forward, two years later:

____________________________________________________________________________________________

THE NEW DEAL DEALER

“We do our part”

February 5, 1937

FDR Wants to “Reconstitute” Court

__________________________________________________________________________________

Packing Day. February 5, 1937. Still fuming from his setbacks in the supreme court of 1935-36, President Roosevelt

Cummings: FDR Pac Man

today unveiled a plan to exact his revenge. After being safely and resoundingly reelected, and after a few more adverse court rulings in 1936, the President had Homer Cummings, his attorney general, devise a plan that would tip the court’s balance in favor of the New Deal. Roosevelt rejected the idea of a constitutional amendment as “too slow”, and Cummings “instead drew up a statute that would add one justice for every Supreme Court Justice over seventy, up to a total of six . . . .”[1] The plan was necessitated, said the White House, because the older justices were also too slow—not able to keep up with their workload. Widely-denounced, the court packing plan, it is thought, will result in “one of the bitterest clashes between the judiciary and the executive in American history.”[2]

And forward two months:

______________________________________________________________________________________________

THE NEW DEAL DEALER

“We do our part”

April 12, 1937

FDR’s “Court-Packing Plan” Mooted By Supreme Court

Ruling Upholding New Deal Measure

“Switch in Time saves Nine”

“Happy Days are Here Again”

_________________________________________________________________________________

April 12, 1937, and beyond. There is a whole lot of bitterness over the court-packing plan. Editorial cartoonists

Hughes: Cries “Fowl”

lambasted the scheme. Members of Congress cried “fowl”. Even Chief Justice Hughes and some of the liberals on the court criticized the plan.

A Coup de Plume

But there was no “clash” between president and court, bitter or otherwise; or, if what happened can be called a “clash”, it ended almost with the first attack. A little over two months after the court packing plan was first announced, and in the first New Deal-related case to reach the court after the plan’s announcement, a majority of the supreme court surrendered and upheld FDR’s National Labor Relations Act,[3] in National Labor Relations Board v. Jones & Laughlin Steel Corp.,[4] a 5-4 decision that wags are calling the “switch in time that saved nine.”[5] Most notably, the usually“conservative” Justice Owen Roberts, switched sides and joined Chief Justice Hughes and

Cardozo

the three liberals, Cardozo, Brandeis, and Stone, against the four Horse and Buggy jockies: Sutherland, Van Devanter, Butler, and McReynolds, all dissenting.”[6]

Switcherro

The majority in effect rewrote the commerce clause, holding that interstate commerce includes not only interstate commerce itself (that is, trade among or between states, as the Framers defined, but also includes anything, direct or indirect, local or otherwise, affecting interstate commerce. Labor relations at Jones & Laughlin’s Pennsylvania steel manufacturing operation easily met that redefinition, as would any

Brandeis

other sort of “coop-to-soup” activity, any activity from production through retail sale.

 

[7]


[8]

Quincy at work

Jones & Laughlin, the coroner concludes, was the immediate cause of the constitution’s death. To be sure, there are other New Deal and pre-New Deal era cases and events that other coroners might identify as the causa mortis.[9] Your coroner, however, believes those to be secondary contributing causes. Jones & Laughlin was the fatal blow, he maintains, for thereafter the battered and cowered court upheld every other similarly-premised New Deal and subsequent measure that came before it.[10]

Jones & Laughlin set a new tone and “standard” that soon permeated the whole judiciary: “hands-off” economic legislation. That “ideology” was easy for federal politicians to exploit and convenient for judges to embrace, especially those jurists already gun shy about making politically-incorrect decisions; and, more especially, those judges eager to reform the constitution in their own images. After all, five members of the United States Supreme Court, including the judicial giants, Cardozo and Brandeis, had in effect embraced the judicial amending process as perfectly legitimate. For lesser judges icon emulation was therefore safe, even highly respectable. No one needed to fear impeachment for tampering with the constitution. In short, with Jones & Laughlin, the constitution suffered the blow that ultimately proved fatal.

Despite disclaimers, Jones & Laughlin nullified the Sick Chicken case and enabled decades of federal “coop-to-soup” legislation and judicial abdication. Just six years later the court cooked up the “ethereal flying bakery”[11] decision, Wickard v. Filburn.[12] That was the unanimous 1943 ruling sustaining, as another justifiable exercise of the commerce power, a $217 federal fine (for growing wheat in violation of federal acreage allotment regulations) against a farmer whose wheat crop was consumed entirely on his farm, to bake bread and feed his animals. His non-sale of the wheat affected commerce, it was said, because not selling can affect the economy as much as selling. Therefore, non-selling is the legal equivalent of selling, so the court “reasoned”. The Four Horsemen were long gone by 1943, replaced with the

Douglas

Black

litmus-tested New Dealers, William O. Douglas, Hugo Black, Felix Frankfurter, and Robert

Frankfurter

Jackson, the author of Wickard. In their work on the court, all implicitly embraced an NRA-type oath “to do their parts” to preserve and protect the New Deal, rather than the constitution. Like the phony Blue Eagle, those judicial birds did their parts to help the federal government fly easily over or, perhaps, through the parchment barriers of constitution and oath.

_______________________

[1] Hall, Kermit et al, Editors, The Oxford Companion to the Supreme Court of the United States, 2nd Ed., Oxford University Press: 2005, p. 233-34.

[2] Id. at 233.

[3] 29 USC 151 et al.

[4] N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); http://laws.findlaw.com/us/301/1.html

[5] See Oxford Companion id. fn. 13 at 454. The “switch in time” joke actually related to Roberts’s switch in West Coast Hotel Co. v.  Parrish, 300 U.S. 379 (1937) decided a few days before Jones & Laughlin. There the court upheld 5-4 the constitutionality of Washington State’s minimum wage law with Roberts joining the majority.

[6] Justice Roberts in NLRB v. Jones & Laughlin Steel Corp., 301 US 1 (1937); http://laws.findlaw.com/us/301/1.html (sustaining constitutionality of National Labor Relations Act). See Oxford Companion at 664-65.

[7] http://www.nisk.k12.ny.us/fdr/1937/37_scgifs/large/37051504.gif

[8] http://www.nisk.k12.ny.us/fdr/1937/37_scgifs/large/37081605.gif

[9] “Cause of death”.

[10] There is a good argument that United States v. Butler, 297 U.S. 1 (1936) http://laws.findlaw.com/us/297/1.html, even though it went against FDR, was the causa mortis.

[11] Author unknown.

[12] 317 U.S. 111 (1942); http://laws.findlaw.com/us/317/111.html

***

Part 4: “When a man takes an oath”

_________________________________________________________________________________________

More

“When a man takes an oath”, Thomas More said long ago, “he’s holding his own self in his own hands. Like water. And if he opens his fingers then—he needn’t hope to find himself again.”[1] The constitutional oath was the first casualty in the New Dealers’ Counter-Revolution, its war against the constitution and ultimately the rule of law.

It’s not surprising then that today oaths are widely treated as mere formalities. Millions of married men and women have broken their vows. Many “doctors” have abandoned the Hippocratic Oath.[2] A recent president repeatedly breached the witness oath, as well as his own oath of office.

Hippocrates

Webster

So too with judges:  20th century judges have set aside their oaths to uphold the constitution against all enemies foreign and domestic, at least insofar as domestic enemies are concerned. Those enemies—the ambitious politicians of envy and faction like FDR—always pose the greatest danger, although even those with truly good intentions are as dangerous. As Daniel Webster said: “Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the constitution was made to guard the people against the dangers of good intentions.”[3]

It is especially when judges face political assault that they cannot flinch, for then the greatest dangers to liberty lurk. Without oath-abiding, liberty-guarding judges, the politicians have only to sell their schemes to other the politicians who masquerade as judges. In those circumstances, the constitution doesn’t stand a chance. As Joe Sobran once said, “the U.S. constitution poses no serious threat to our form of government.”[4]

Under siege from FDR and grasping for 30 talents of political favor, the supreme court let slip the holy water of constitutional oath and Judas-kissed the constitution goodbye for the rest of the 20th century. The modern court’s 1937 “fathers [had] eaten a sour grape, and the children’s teeth [were] set on edge”, to amend Jeremiah slightly.[5] With a few very rare exceptions, the court hasn’t found itself since those pivotal events; its collective judicial teeth seem permanently set on edge; and the oath and constitution are today but “horse and buggy” relics of the 18th and 19th centuries.

The Kiss of Judice is styled an autopsy. That is correct, I think, because it’s a pathology: when and how the constitutional cancer started, how it spread slowly at first, then metastasized into a raging affliction, and when death ensued. The epidemiology of the disease traces most directly to when the “reconstituted” court caved in and reversed the decisions that had impeded the New Deal’s hostile takeover of the American economy. That was the constitution’s Rubicon. Freed from the chains of constitution and the check of judicial restraint, subsequent congresses and presidents have gone on a rampage of power usurpation, churning out edicts and “programs” in a quantity and scope that would made even FDR blush. “It’s a good rule of thumb”,

Sobran

Sobran wrote, “that anything called a ‘program’ is unconstitutional.”[6] He’s right for the reasons laid out in the pages ahead.

The betrayal of the constitution was (and has been for many years now) well-disguised by platitude and lip service. Roosevelt’s own attitude toward the constitution was outwardly reverent, though couched in very uncertain terms. He described the constitution as “so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form.”[7] Even his court-packing plan, calling for changes in “arrangements” on the court, was presented as only a change in “arrangement”—an augmentation to help the court keep up with its workload. That presentation was transparent; and the packing plan ultimately failed. But the constitution’s “essential form” has never been the same. In the New Deal era, the court handed the federal government something it never before had even dared to ask: carte blanche, plenary, and unreviewable authority on taxing, spending, and economic regulation. The immediate effect was the wholesale nullification of certain politically-inconvenient parts of the constitution.

In that era, the court nullified the most important of all legal protections in the constitution, the doctrine of limited government or delegated power. The nullification was astonishing in its arrogance—for the idea of limited government was the principle stressed most by the constitution’s framers in selling the constitution to the states back in 1787; and the promise of limited government was the inducement for the states’ acceptance of the new constitution.

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity―Yeats

_____________________

[1] Bolt, Robert, A Man for All Seasons, quoted at http://www.iwise.com/TBG1H#

[2]The Hippocratic Oath (Original, translated from Greek): ”I swear by Apollo the physician, by Æsculapius, Hygeia, and Panacea, and I take to witness all the gods, all the goddesses, to keep according to my ability and my judgement, the following Oath. To consider dear to me as my parents him who taught me this art; to live in common with him and if necessary to share my goods with him; To look upon his children as my own brothers, to teach them this art if they so desire without fee or written promise; to impart to my sons and the sons of the master who taught me and the disciples who have enrolled themselves and have agreed to the rules of the profession, but to these alone the precepts and the instruction. I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone. To please no one will I prescribe a deadly drug nor give advice which may cause his death. Nor will I give a woman a pessary to procure abortion. But I will preserve the purity of my life and my art. I will not cut for stone, even for patients in whom the disease is manifest; I will leave this operation to be performed by practitioners, specialists in this art. In every house where I come I will enter only for the good of my patients, keeping myself far from all intentional ill-doing and all seduction and especially from the pleasures of love with women or with men, be they free or slaves. All that may come to my knowledge in the exercise of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal. If I keep this oath faithfully, may I enjoy my life and practice my art, respected by all men and in all times; but if I swerve from it or violate it, may the reverse be my lot.”

The modern version eliminates, among other things, the prohibition on abortion. See [http://www.pbs.org/wgbh/nova/doctors/oath_modern.html. Image from http://www.healthsystem.virginia.edu/internet/library/historical/artifacts/antiqua/assets/hippocrates.jpg]

[3] http://www.quotedb.com/quotes/2158.

[4] [Need citation.]

[5] 31 Jer. 29-30 (Douay-Rheims, Tan Books and Publishers, Inc.: Rockford, IL.: 2000) (http://www.newadvent.org/bible/jer031.htm): The fathers have eaten a sour grape, and the teeth of the children are set on edge. 30 But every one shall die for his own iniquity: every man that shall eat the sour grape, his teeth shall be set on edge.

[6] That was the title of a pamphlet Sobran published. [Need citation]

[7] Inaugural Address March 4, 1933, quoted in Mencken, H.L., A New Dictionary of Quotations, New York: Alfred A. Knopf: 1985, p. 215. In 1930, Roosevelt had said, “The United States constitution has proved itself the most marvelously elastic compilation of rules of government ever written.” Id.

***

Part 5:“The Judicial Vandals”

__________________________________________________________________________________________

The judicial vandals of the New Deal and their successors were too cagey for a direct repudiation of the constitution’s roadblocks: they didn’t smash the constitutional pillar of limited power with a sledge hammer. Instead they chipped at it with the picks and chisels of concoctions like the so-called “political question” doctrine, the related notion of selective judicial deference to congress, and the judicial presumption that federal tax, spending, or regulatory legislation is constitutional. Whenever someone would challenge a federal taxing, spending, or regulatory measure, the court would sign off, usually on the grounds that taxing and spending were political questions not judicially reviewable. They still do that routinely today.

Sutherland

There was no warrant for the “deference”, for the constitution itself is entirely nondiscriminatory on what must be reviewed. There is no political questions exception and no presumption of constitutionality. When challenged, any legislation that implicates the constitution must always be reviewed neutrally. Indeed, holding the federal political branches in check is the federal judiciary’s most important function—even when the legislation seems or actually is enlightened or beneficent. “If the provisions of the constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned”, said Justice George Sutherland,[1] one of the loathed Four Horseman on the New Deal Era Supreme Court.

Marshall

The cases we cover later have in common the ever-recurring rule of law and judicial review issues: May the judiciary, in the name of legislative deference, look past constitutional violations? Does the constitution actually have meaning? Or is it just window-dressing found only in its original edition in rare book boutiques? In 1803, the nation’s second Chief Justice, John Marshall, wrote about the duty of judicial review. Back then, as today, there were those who claimed that congress was omnipotent and legislation paramount. Marshall set them straight:

Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. That doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits.”[2]

Despite the distinguished pedigree for mandatory, non-discriminatory judicial review of all legislation that implicates the constitution, legislative supremacy and a related judicial passivism became judicial shibboleth in the Roosevelt era and in the next seven decades following, as the tentacles of socialism and paternalism reached farther and farther into American life in the New Deal, Fair Deal, New Frontier, and Great Society, through the Clinton era of the “Politics of Meaning”, and the Bush mantra of “compassionate conservatism”. Following its own 1930s precedents of holding federal taxing, spending, and regulations as judicially off-limits, the U.S. Supreme Court affirmed again and again, whatever taxing and spending Washington mandated.

For a short time, the court was fairly consistent in its deferential approach: in general, its “hands-off-congress” policy extended across the constitutional board, and was not merely limited to taxing, spending, and regulatory issues.[3]

That consistency cracked up in the late 1950s and into the 1960s and 1970s when the Earl

Unbanned

Warren and Warren Earl Burger courts went on a rampage of judicial activism—but only for certain “preferred” constitutional rights, mainly those asserted by murderers, rapists, pornographers, abortionists, atheists, student “demonstrators”, Communists, Nazis, flag burners, and other human detritus. The era was the dawn of a new culture of judicial nihilism. Bible reading and prayer in schools were banned as having negative social value and unconstitutional; Memoirs of a Woman of Pleasure was unbanned and found to have redeeming social value.[4]

Warren

In 1973, Justice Blackman, Chief Justice Burger, and five others reached the pinnacle of archonocracy in Roe v. Wade[5] the abortion case that wiped out the laws of all 50 states and which was the death sentence for some 40 million unwanted, unborn or, later, even partially-born infants.

Berger

To be sure, the status of the litigants ought to be legally irrelevant. As Thomas More said, “I’d give the Devil benefit of law, for my own safety’s sake”;[6] even serial killers are entitled to benefit of the constitution just like everyone else. But the change was that the Earl Warren, Berger, and even Rehnquist courts was not enforcing legitimate constitutional rights—they were manufacturing “rights” nowhere found or even implied in the constitution or in natural law, but fabricated out of the justices’ own exquisite consciences.

_______________________

[1] Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 483 (1934) @ http://laws.findlaw.com/us/290/398.html

[2] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803) @ http://laws.findlaw.com/us/5/137.html

[3] See The Constitution of the United States, Analysis and Interpretation, Library of Congress: U.S. Government Printing Office: Washington: 1987, pp. VII-X (Introduction to the 1982 Edition).

[4] Those rulings came despite the fact that neither the court nor the federal government had any jurisdiction over either subject, for what the states elect to do with obscenity or prayer in schools is not a matter of federal constitutional law and none of the court’s business. See (> ).

[5] 410 U.S. 113 (1973) @ http://laws.findlaw.com/us/410/113.html

[6] Bolt, Robert, A Man for all Seasons @ http://www.quotationsbook.com/quote/45245/

* * *

Part 6:“Some Litigants Are More Equal Than Others”

___________________________________________________________________________________________

Why is it that some parts of the constitution are “more equal” than others? What rationale lies behind a disparity between the treatment of “economic” rights and “personal” rights? Why are some constitutional rights “fundamental” while others all but ignored? Why are the courts closed to taxpayers with real constitutional claims, but open to flag burners who make the phony claim that the 1st Amendment permits them to burn the flag and chant “Red, White, and Blue, we spit on you”?

How can anyone possibly justify a “jurisprudence” that would allow Nazis to goose-step on public property as long as they don’t sing “Silent Night” or any other Christian or Jewish melodies?[1] Why do courts treat like dirt patriotic and gracious people like taxpayer George Watts, who dared to challenged the constitutionality of Wisconsin’s idiotic baseball tax, yet lay out the “Welcome Friends” mat for every manner of malcontent imaginable?

Liberals have often tried to justify the double standard on the grounds that the court’s constitutionally “preferred freedoms”, such as the freedom of speech, are human rights; and taxpayer claims, like Watts’s, are only property or economic rights, entitled to only second-class citizenship in the liberal caste system, in their Bethesdian Pool of preferred rights.

The attempted distinction between human rights and property rights is a red herring. As Alexander Hamilton said, “a power over a man’s subsistence amounts to a power over his will.”[2] A man without the subsistence of property is a man without freedom of speech. Like most U.S. taxpayers today, whose vital fluids and expressive freedoms are hemorrhaging into a red sea of government waste, a man without property cares little about liberally-invented non-issues such as whether flag burning qualifies as free speech.

Property rights are human rights entitled to at least the same degree of judicial respect given to flag burning or pornography. As Justice Charles Whittaker said,

Is not the right to have and be protected in property a valuable “human right”? Are not those rights mutually consistent and even dependent? Any thoughtful observation of history will reveal that, where private-property rights have not been respected and protected, there has not been what we call “human rights.” Private-property rights are the soil in which our concept of human rights grows.[3]

There is more than the usual liberal double standard here. A double standard would exist when some constitutional rights are ignored, while others are enforced. We have that as a matter of routine.

But things are far worse now than they were in 1937, 1967, or even 1985, to pick a number. Today those whose claims don’t comport with conventional liberal notions not only lose but are now denied even the “preferred rights” such as freedom of speech and the right to petition for redress of grievances.

Today certain types of plaintiffs need not apply. Today the Schechters would not only lose and lose

George and Marty Watts: objected to baseball tax; threatened by governor’s henchmen with financial ruin

unanimously; but they would be treated as crackpots; and even might be terrorized with the threat of financial punishment for having brought their claim, as happened to George Watts in the baseball tax case. On the one side, the unfashionable Schechters of the world, with real constitutional complaints, aren’t even being heard; but noveau-chic plaintiffs with constitutionally-preposterous claims, will not only nearly always get a hearing, but can expect to win far more often than not.

The baseball tax case alluded to above illustrates the point. In 1995, Wisconsin, in an effort spearheaded by its governor, enacted a sales tax to pay for a new stadium for The Milwaukee Brewers. Supporters said that the tax served at “statewide public purpose”, namely boosting employment by keeping the Brewers and their then principal owner, now baseball commissioner, Bud Selig from pulling out of town for greener pastures.

The argument that taxes can rightly be imposed for the benefit of baseball should be presumptively suspect to anyone giving it a millisecond’s thought: it presumes that baseball has something in common with fire and police, prisons, courthouses, and other constitutionally-authorized public purposes. The argument is far-fetched, to say the least. All those customary public purposes cannot well be fulfilled without government. The costs of fire and police protection cannot be easily allocated to individual users and must be collectivized. That’s not true of baseball; the costs can be easily allocated to the users, the fans. Baseball is the greatest of all sports, but it’s no more a public purpose than the corner tavern, “Hooters”, or any other enterprise.

It was said that the $1 billion baseball bail-out would create jobs. But no one explained how taking cash from taxpayers and redistributing it to millionaires like Selig and his equally affluent players can create a net increase in jobs. It can’t, of course: the taxes are merely redistributions; had the $1 billion in baseball taxes and subsidies been left in the hands of the taxpayers, they could have spent the money on their own job-creating preferences.

The legislation establishing Major League Baseball as Wisconsin’s most elegant welfare queen

Thompson: put Major League Baseball on welfare rolls while taking less fortunates off.

flagrantly violates the Wisconsin and federal constitutions—so much so that it is only minor exaggeration to say that it’s hard to find a section of the Wisconsin constitution not violated, as a group of Wisconsin taxpayers, led by the irrepressible George Watts, discovered. When they investigated the legislation, they found some 15 separate state and federal constitutional violations and sued then-Governor (and later Secretary of Health and Human Services) Tommy G. Thompson, Selig’s Brewers, and others to block the bail out. Watts need not have even applied; the case was over practically before it started.

_________________________

[1] See National Socialist Party v. Skokie, 432 U.S. 43 (1977) @ http://laws.findlaw.com/us/432/43.html

[2] James Madison, Alexander Hamilton, and John Jay, The Federalist Papers (“Federalist”), Encyclopædia Britannica (Great Books of the Western World), University of Chicago, Chicago, Ill. (1980), No. 79 @  http://www.constitution.org/fed/federa79.htm

[3] “A Former Justice Warns: Return to Law, or Face Anarchy”, U.S. News & World Report, April 25, 1966, p. 60, quoted in Gerhart, Eugene C., Quote It! Memorable Legal Quotations, Reprint Edition, William S. Hein & Co., Buffalo, NY, (1987), pp. 523-24.

***

Part 7:“Some Litigants Are More Equal Than Others (continued)”

_________________________________________________________________________________

The baseball tax legislation’s leaden unconstitutionality was cause enough for great concern. But the greater cause for despair, even panic, was the behavior of the Wisconsin Supreme Court in “hearing” the case. The court had a temper tantrum that witnesses won’t soon forget.

From the outset, Watts and his band of taxpayers were treated like vermin. It’s hard to say what the most abusive abuse of judicial power was: not letting the taxpayers present argument on nine of their 15 claims; giving the taxpayers only three days—starting the day after Christmas 1995—to reply to Thompson’s and Selig’s 50 pages of arguments; announcing that no extensions would be granted; holding the taxpayers hostage by refusing to recognize that the taxpayers, as was their absolute right, and seeing the handwriting on the wall, had dismissed the case and refiled in federal court; and finally in this matter of claimed public “urgency”, waiting until Opening Day of the baseball season in Milwaukee, some three months later, to issue an unsigned, anonymous decision that lifted nearly all of its verbiage verbatim straight out of Thompson’s and Selig’s brief, handing Thompson the singular honor of not only writing the “historic” legislation, but also the court opinion upholding it! The only question was whether the Wisconsin Court scanned the Thompson-Selig brief into its word processors or whether it got the governor’s computer disk instead.

The court’s “decision” reached what must be an all-time low in judicial “service”. It dismissed ten of the taxpayers’ 15 claims with these words: “[W]e recognize that not all of the challenges are meritorious. Therefore, any of [the] challenges not discussed with specificity can be deemed to lack sufficient merit to warrant individual attention.” Poof. Two-thirds of an annoying case out of the way in 31 words. The court is getting more efficient all the time. And as to the five claims the court did at least purport to consider, it quite literally didn’t deal with a single argument the taxpayers made.

The federal court to which the taxpayers retreated also behaved almost as deplorably. Judge Thomas J. Curran simply rubber-stamped the supreme court’s “decision”. The actual basis for the judge’s decision remains a mystery. All Judge Curran had to say about the taxpayers’ arguments that they hadn’t been given a fair chance in the Wisconsin Supreme Court was: “[The court is] not persuaded . . . that the state court proceedings were so flawed that they did not comport with Due Process.” That was it. Though the judge seemed to recognize there was something unfair, he decided to “deem” the unfairness insufficiently unfair to disturb him enough to do anything about it. And he never even addressed the taxpayers’ other argument that the supreme court had lost jurisdiction over the case when the taxpayers immediately dropped it and refiled in federal court.

Caligula: Face of modern justice?

How long can we endure a judicial system where judges routinely decide cases with language like, “We deem them to be without merit”, or “I am not persuaded”? Are those the words of John Marshall or Caligula? Reasoned analysis or raw power? What’s happened to the rule of law? What’s happened to the very idea of law? Does it have any life left?

The answer is either “None” or “Not much”: the rule of law, like the constitution, is either stone-cold dead and “in the dark union of insensate dust” (Byron)—or in the throes of its terminal stage.

For those who may doubt that premise, The Kiss of Judice offers three different levels of evidence. First, the book relates the patently-unconstitutional results and result-driven “reasoning” in a number of landmark U.S. Supreme Court cases. Those cases alone are enough to tell us that law in our highest tribunal is not a fixed principle consistently applied, but hardly more than a rhetorical tactic deployed when the occasion may beckon.

Ashcroft: Judas of the Pro-Life Movement

Second, one need only consider the spectacles of the Bork, Ashcroft, and Pickering nomination hearings to understand the political high stakes involved in federal judicial nominations. Those hearings themselves tell us that the constitution is regarded by politicians, especially liberals, as a shuttlecock to be batted around to accomplish political ends. We cover in some detail the Ashcroft hearings, where, to appease the liberals, the nominee had to swear an oath of fealty, not to preserve and protect the constitution, but to preserve and protect Roe v. Wade [i], to protect partial birth abortions,[ii] and to protect all sorts of other unconstitutional edicts, both judicial and legislative. See > .Under oath, the pathetic Ashcroft swore that he wouldn’t ever even try to have those decisions reversed, because they were the “law of the land”.

Finally, for those who remain skeptical of constitutional apostasy, the book also presents some first-hand evidence: the chilling twists and turns in the baseball tax case and the blow-by-blow accounts in two other recent lower court cases in which the already moribund constitution took brutal beatings. And appeals were denied in all.

The evidence presented establishes, at the very least, the presence of an ever-more pervasive and debilitating disease: the terminal cancer of judicial arrogance. It is, I fear, too late for chemotherapy—the time may have come to summon Dr. Kevorkian. Our constitution is a cadaver; the rule of law is gasping for life in an oxygen tent.

__________________

[i] 410 U.S. 113 (1973); http://laws.findlaw.com/us/410/113.html

[ii] Stenberg v. Carhart, 530 U.S. 914 (2000); http://laws.findlaw.com/us/530/914.html; but see Gonzales v. Carhart, http://laws.findlaw.com/us/000/05-380.html (narrowing Stenberg). 550 U.S. 124 (2007)

* * *

Part 8: “The Law Knows No Fixed Principles”

__________________________________________________________________________

Jackson

What causes modern courts, like the Wisconsin Supreme Court in the baseball tax case, to behave so wretchedly? What accounts for modern judges and politicians flouting, ever more brazenly, the whole idea of constitution and rule of law? Judicial arrogance and lawlessness themselves are not new. Even Justice Robert Jackson, himself an ardent New Dealer, complained in the 1950s:

Rightly or wrongly, the belief is widely held by the practicing profession that this Court no longer respects impersonal rules of law but is guided in these matters by personal impressions which from time to time may be shared by a majority of Justices. Whatever has been intended, this Court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles.[1]

Burke

Back then, of course, Americans used to be much more active in public affairs. They subscribed to the Watts creed that involvement was every citizen’s duty. Seventy years ago, George Watts and the other baseball tax taxpayers may have lost, but they would not have treated as pariahs. Today George Watts is a one-in-a-million citizen, a man, as he sees it, duty-bound to raise Cain over the baseball taxes. The Watts model of citizenship, like the constitution itself, is an endangered species; and the near extinction of citizenship is exactly why schemes like the baseball bailout have gotten a grip on us; and more generally why the judiciary can calculate cases on a political risk/reward basis and get away with rubber-stamping the politicians. Edmund Burke’s adage, “The only thing necessary for the triumph of evil is if good men do nothing” doesn’t seem to inspire anymore.

But apart from the judges and politicians themselves, the most direct cause for today’s epidemic of judicial lawbreaking is criminal neglect—the neglect of three generations of lawyers, both inside and outside government, who (with some lonely exceptions) have hidden behind an economically-convenient curtain of silence. The establishment bar, sometimes as accomplices, but often like lotus-eaters, has presided over the judicial gang rape of our constitution and fiddled as the fortress of our Republic was being torched.

Lawyers, once thought the sentinels of liberty, are today as a group fawning favor-seekers, courtesans who rarely miss an opportunity to ingratiate themselves with their judicial masters in whose hands their financial comfort rests. Watching lawyers pandering and slobbering over judges at bar seminars or other gatherings is grotesque, but at the same time very funny—the only difference between the lawyer-groupies and the average teenage girl swooning after a rock star is that conventions and seminars are not packed like rock concerts; and the groupie lawyers probably have a far better chance of being noticed.

It’s a rare lawyer who dares utter a public word of direct criticism. Even when a lawyer is appealing an absurd decision, he will almost always sugar-coat the judge’s errors, incompetence, or even bias, with the syrup of euphemism: “The issue is whether the Honorable Judge Suckfist erred when he failed to grant Kissbreech’s demurrer” is the sort of standard pablum served up in an appeal. The writing almost always backfires, because it masks rather than highlights the errors. No one in the appeals court can tell (at least not right away) that Judge Suckfist sent Kissbreech off to the gallows on the basis of a “confession” beaten out of him.

Private ridicule, however, abounds. The Wisconsin Supreme Court, for example, is by lawyers (especially those with a couple of drinks under their belts) almost universally held in the lowest regard, even contempt. The most common name Wisconsin lawyers have for the court is the “Seven Dwarfs”.

But in public the state bar is constantly stroking the justices with puff pieces about their commitment to improving the quality of justice for all—but especially for whatever the favored minority du jour happens to be: “Left-handed Czechoslovakian transvestite widows simply must have proper numerical representation in our judiciary.” You won’t ever hear a peep of criticism in the Wisconsin Bar Journal about some of the more outrageous rulings—like the baseball tax debacle, the Wisconsin Supreme Court’s ruling that the American Flag can be used as toilet paper,[2] the same court’s affirmation of a ruling that held that arson is horseplay,[3] or its ruling that Wisconsin taxpayers, unlike any other large groups, can’t sue as a group in Wisconsin courts.[4]

The organized bar and the aging student government-type geeks who run it are far worse than just a nuisance to those

Groucho

who must join and support bar “philanthropy” with their money. (It’s a closed shop that costs $300+ a year in union dues and bundles more for mandatory continuing legal education courses.) Groucho Marx’s crack about committees well describes the establishment bar: “A committee is a group that keeps the minutes and loses the hours.”

Stone

As Supreme Court Chief Justice Harlan Fiske Stone wrote in the 1940s, “Bar organizations have generally taken only a perfunctory interest in the real problems of the profession. They have been chiefly organizations which, when not given over to petty politics, have been devoted to honoring the leaders of the profession and to describing in sonorous phrases the noble traditions of the bar and the perfection of the common law.”[5] If he wasn’t right then, Stone is certainly right now—the organized bar will never be a force for the reform desperately needed.

______________________________

[1] Brown v. Allen, 344 U.S. 443, 535 (1953); http://laws.findlaw.com/us/344/443.html (EA).

[2] State v. Janssen, 213 Wis.2nd 431.  In its unanimous opinion throwing out the defendant’s flag desecration charge, the court described the facts: “Beginning in May or June of 1996, Janssen and several of his friends began stealing United States flags from different locations in the city of Appleton, Wisconsin. One of the first thefts occurred when the group passed through the Reid Municipal Golf Course one evening and decided to take the flag down from the golf course flag pole. After stealing the flag, Janssen eventually discarded it. On approximately June 9, 1996, Janssen and his friends returned to the golf course and noticed that a new flag had been hung on the flag pole. After lowering and removing the flag, Janssen defecated on the flag and left it on the steps to the golf course clubhouse. Janssen and his friends did not return until approximately June 26, 1996. At that time, Janssen and his friends returned to the golf course to find that the flag had been cleaned and put back on the flag pole. Once again, Janssen and his friends lowered and stole the flag. This time, however, the group left a handwritten note at the golf course, which was eventually recovered by the Appleton Police Department. The note read as follows:

Golf Course Rich Fucks: When are you dumb fucks going to learn? We stole you’re [sic] first flag and burnt [sic] it, then we used your second flag for a shit-rag and left it on your doorstep with a peice [sic] of shit. The ANARCHIST PLATOON HAS INVADED Appleton and as long as you put flags up were [sic] going to burn them you yuppie fucks. Shove you’re [sic] cluB [sic] up your ass.” Id. at .

Janssen was charged with flag desecration under “§946.05 Flag desecration. (1) Whoever intentionally and publicly mutilates, defiles, or casts contempt upon the flag is guilty of a Class E felony. (2) In this section “flag” means anything which is or purports to be the Stars and Stripes, the United States shield, the United States coat of arms, the Wisconsin state flag, or a copy, picture, or representation of any of them.” Id. at .

The Wisconsin Supreme Court based its on the grounds that the flag desecration statute, and in particular the word “defile” was unconstitutionally “overbroad”.

[3] Prosser v. Leuck, 225 Wis. 2d 126, 592 N.W.2d 178 (1999) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=app\95-0688&invol=2 (1995); petition for review denied.

[4] Hogan v. Wisconsin Department of Revenue, 198 Wis. 2d 792 (1995) (Wis. Court of Appeals); http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=app\95-0438&invol=2

[5] Mason, Alpheus Thomas, Harlan Fiske Stone: Pillar of the Law, The Viking Press New York, N.Y. (1956), p. 377.

***

Part 9:“Real Lawyers: ‘None Such Any More’”

___________________________________________________________________________________________

The American Legal System

Lawyers today have little in common with the greats of yesteryear. Ian Sholes, the TV critic, rightly said: “They don’t produce anything. All they do is guide you through the labyrinth of the legal system that they created—and they keep changing it just in case you start to catch on.” That’s about all a lawyer can really do today—help the client through the labyrinth of legal procedure; for  with the rule of substantive law corrupted by discretionary “justice” run riot, often the lawyer can do little to affect the result. The lawyer can only hold the client’s hand in the eternal waiting room of justice, praying for good luck. Predictability of result is nearly nonexistent; winning a case is more like winning a coin toss—unless, of course, you are advocating partial birth abortion or using the flag as a toilet swab. Your chances usually increase directly with the outrageousness of your claim.

Consequently, lawyers have become rudderless vessels, technocrats with little sense of principle or history. It used to be thought that a “lawyer without history or literature [was called] a mechanic, a mere working mason; if he possesse[d] some knowledge of these, he [could rightly] venture to call himself an architect.”[1] The law is today a “profession whose minutiae contract and distract the mind.”[2] Technocracy, in parallel with Archonocracy, has taken hold and is accelerating at alarming rates.

Most lawyers don’t lose sleep over the merits of the case—those can often be manufactured as the case goes on. To them law is, as Oliver Wendell Holmes said, “a rag-bag from which they pick out the piece and colour that they want.”[3] Real lawyers have all but disappeared and those honorable few left are mostly old and tired:

Lord Coke

There will be none such any more, till, in some better age, true ambition or the love of fame prevails over avarice; and till men find leisure and encouragement to prepare themselves for the exercise of this profession, by climbing up to the “vantage ground,” so my Lord Bacon calls it, of science; instead of groveling all their lives below, in a mean but gainful application to all the little arts of chicane.[4]

Lawyers have never been more obsequious than today. Lawyers probably always have tried to schmooze judges, though it’s hard to believe that Daniel Webster or Thomas Jefferson sprinkled saccharin over their pleadings or arguments for the sake of the judicial ego. And certainly the phenomenon of arbitrary, capricious, or even tyrannical judges is nothing new.

Kent

The difference is in degree—but vast degree. Judges and lawyers of 100 years ago had far better breeding than their modern counterparts. They cut their teeth on Coke, Blackstone, Kent, Marshall, Hamilton, Madison, and Story.

All that work is still available in libraries; and one would think that modern jurists, like the Seven Dwarfs, should, if anything, be able to see much farther and more clearly than their judicial forefathers; for we modern dwarfs can stand on the shoulders of those giants and their offspring. Yet the present class of judicial dwarfs seems to have even less appreciation for the idea of law than the most beleaguered traffic court judge.

Where the “dwarfs-standing-on-the-shoulders-of-giants” aphorism breaks down is that today’s dwarfs are not standing on the shoulders of giants with the perspective of that revealed brilliance—they’re more like moles squatting in a vast cavern of ignorance. Their subterranean perspective is not necessarily always self-desired; the labyrinth modern judges find themselves in was first burrowed by an intervening three generations of U.S. Supreme Court justices. The light of the wisdom of the ages can’t penetrate into the pitch black of the deep shafts and musty side tunnels of the fallout shelter into which that formerly eminent tribunal seventy years ago retreated.

[1] Scott, Walter, Guy Mannering, E.P. Dutton & Co.: New York, N.Y. : 1906, p. 259.

[2] Story, Joseph, Letter to S.P.P. Fay, September 6, 1798; Story, William W., Ed., Life and Letters of Joseph Story: Charles C. Little & James Brown: Boston, Mass. :1852, p. 71.

[3] Review of W.S. Holdsworth’s A History of English Law, 25 L.Q.R. 412 (1909).

[4] St. John, Henry, in Letter No. 6 of “Letters on the Study and Use of History”, in The Works of Lord Bolingbroke: Carey and Hart, Philadelphia, Pa.: 1841, Vol. II, pp. 234-35.

***

Part 10:“Judicial Power: An Alien Tradition”

___________________________________________________________________________________________

“[E]arly [constitutional] controversies . . . normally involved disagreements about the proper applications or operations of a given constitutional principle, not the principle itself,” wrote George W. Carey.[1] But 70 years ago, the U.S. Supreme Court took a wrong turn and has been jettisoning principle ever since. It was then the U.S. Supreme Court began the excruciating castration of law and constitution. In the aftermath, whole limbs of the constitution were either amputated under the knife of “progress” or slowly mortified by the gangrene of platitude and fiction.

Today when one mentions rule of law or constitution to the average lawyer, the invariable response is, “Can I find those concepts on Westlaw®?”[2] “What search words are best to get the most recent cases?” Rule of law and constitution, still fairly robust in 1935, are at the dawn of the new millennium quaintly archaic notions, bloodless as plucked turnips in a root cellar.

Brennan

Today’s jurists and lawyers know a lot about complex environmental regulations, the tax code, Elder

Blackmun

Law, Education Law, Entertainment Law, Divestment Law, Poverty Law, Law and the Media, Lemon Laws, and my personal favorite, “Sports Law” (whatever that is); but little of Marshall or Story, and virtually nothing of Coke or Blackstone. Today’s jurists and lawyers cut their teeth on the nipples of the “social justice” jurists, the easy virtue of Earl Warren, the “penumbras and emanations” of William O. Douglas, the constitutional fluidity of William Brennan, and the cavalier legal inventions of Harry Blackman.  Said William Gangi:

For several generations now attorneys and legislators have been trained in an alien tradition—that of judicial power. Those expected by the framers to guard the constitutional law tradition have abandoned it. Surely law students must suspect something amiss when in one class they learn how to protect from judicial interference their client’s intent to leave all earthly possessions to the family cat, but in their constitutional law class they learn the justices may ignore even the framers’ clearest intentions.[3]

None of those modern jurists made more than a passing glance at the idea of the fixed constitution; indeed each promoted the antithesis, the idea that jurists were free from the “dead hand” of the written law, free to invent and impose their own notion of a higher justice unfettered by the chains of law. Each peddled the idea that the text of the constitution can be ignored; it’s “constitutional law” that matters, and the constitution means whatever their private consciences and judgment dictated.

It is said, “The civilization of one epoch becomes the manure of the next.”[4] Lesser modern judges, like the Wisconsin Supreme Court, took their cues and learned their lessons well—using the “civilization” of the FDR- and Earl Warren-era liberals as the manure for their own outrageous rulings. Without the rudder of observance of law at the top, today’s lesser jurists have foundered law on the rocks of a libertine, loose-cannon judicial discretion. The spirit of invention or innovation, the unremitting quest for “originality”, rather than prescriptive evolution, form the habit of the modern jurist. The mode is now well-entrenched and applauded. But the shadows of judicial discretion lengthen every day, as we race toward the dawn of nothing—for without the rule of law all that is left is nothing.

In sum, the Wisconsin Supreme Court and other lower courts in the land have had a very bad role model. Their judicial arrogance is only the immediate symptom of the cancer: the cancer-causing agent is the top-down abandonment of law, constitution, oath, duty, and honor, and the substitution of the false prophet of unbridled discretion. Those judicial sins and the profession’s failure to take corrective action, more than anything else, account for the dismal state of judicial affairs thousands of victims, like George Watts, have had to endure.

How, if at all, can the constitution be restored? Or is hope of that futile? I think not, for the reasons that follow.

When I said earlier that The Kiss is an autopsy, I didn’t mean to say that that was all it is. It’s also, I hope, a reasonably concise series of seminars on the forgotten virgin constitution, which is the version the framers proposed and the states ratified. We therefore must start with a substantial dose of constitutional pedagogy or reindoctrination, for, as Joseph Sobran has written with only slight exaggeration, “The meaning of the constitution now has to be communicated by grapevine.”[5]

Recall the Socratic “maxim that the recognition of our ignorance is the beginning of wisdom.”[6] To have any chance of remission of the cancer and rebirth of the constitution, people of good faith must start their own grapevine. The grapevine must of course understand the pathology of the disease; but to understand that pathology, we must first understand what the constitution says. Consequently, the first step in restoring our constitution and its central objective of limited government is to understand what the unexpurgated constitution actually says on the subject of federal power. Then and only will we have the wherewithal to begin to formulate a course of restorative treatment.

Farewell, Socrates

The Kiss is almost 100% discouraging. One is constantly tempted to give in and drink the “constitutional” hemlock. But all is not yet necessarily lost. The book will help (I hope) readers understand that the constitution, liberty, and the Republic are all in grave peril, not so much from external threats like terrorism, but from the virus of political calculation and the gangrene of duty, honor, and oath forsaken; and will help prod them on to perform the kind of emergency radical surgery needed to revive the constitution and protect it from future oath breakers. May God bless us and make his face shine upon us.


[1] In Defense of the Constitution, Liberty Fund: Indianapolis, Ind.: 1995, p. 6.

[2] WestLaw is computerized legal research.

[3] Gangi, William, “The Sixth Amendment, Judicial Power, and the People’s Right to Govern Themselves”, The Bill of Rights—Original Meaning and Current Understanding, Hickok, Eugene W. Jr., University Press of Virginia: Charlottesville, Va.: 1991, p. 371.

[4] Connolly, Cyril, The Portable Curmudgeon, Winokur, Jon, Ed., New American Library: New York, N.Y.: 1987, p. 67.

[5] Anything Called a Program

[6] As phrased by Hayek, Friedrich, The Constitution of Liberty, University of Chicago Press: Chicago: 1978, p. 22.

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