by: the Common Constitutionalist
I think it was the late Sen. Arlen Specter who said, I didn’t leave the Republican Party – the Republican Party left me. Well, Arlen was wrong – he abandoned his principles and left the Republican Party. And that’s saying something, considering the state of the Republican Party.
Anyway, after Ted Cruz proposed retention elections for the Supreme Court, some big-time lawyers have come out against him, effectively saying that Cruz has gone off the reservation. To this I say, Ted Cruz didn’t leave the Supreme Court – the Supreme Court left him – and all of us.
That well-known right-wing journal, Salon.com , writes that, “Conservative attorney and prominent gay rights activist Ted Olson took a swipe at Republican presidential candidate Ted Cruz, saying the freshman senator had abandoned a fundamental understanding of the Constitution suggested a constitutional amendment barring same-sex marriage in the wake of the recent Supreme Court decision in favor of marriage equality.”
First: How can anyone be a “conservative attorney” and a “gay rights activist” at the same time? Second: how is proposing an amendment “abandoning a fundamental understanding of the Constitution?” Isn’t that what the amendment process is for? Is that not supposed to be one of only two ways to modify the Constitution?
Meanwhile, the Washington Post weighed in saying that Cruz should know better, being that, “Sen. Ted Cruz spent his years at Harvard Law school working to secure a Supreme Court clerkship and then made his name as a lawyer by arguing in front of the body nine times.”
They go on to accuse Cruz of suggesting such a thing is just a way of “seeking support from the right wing of his party.” Well that’s funny, because Ted Cruz is the right wing of the party!
The ABA Journal quotes US district judge Richard Kopf saying, “The Texas Republican’s proposal to amend the Constitution is extreme and wacko.” Kopf wrote that because of this, Cruz “was unfit” to become president.
It seems to me Kopf is unfit to be a judge. With his proposed amendment, Cruz is merely trying to, “provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants.”
And that seems reasonable to me, considering the judiciary has gotten too big for their britches. But what do I know. I’m not a constitutional scholar, but I do know of someone who does (or did), and it just happens to be Alexander Hamilton, who authored “Federalist 78 – The Judiciary will always be least dangerous to the political rights of the Constitution.”
Hamilton wrote: “Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.”
It sounds to me that Hamilton, a founding father, would agree with that wacko Ted Cruz.
He continues: “It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.”
Hamilton does go on to argue for judicial permanency, but only if the judiciary can remain independent – which they are increasingly not.
Thomas Jefferson, in a letter dated September 1820, was a bit more forceful. “You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges… and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control.”
To William Johnson, in 1823, Jefferson wrote: “… there is no danger I apprehend so much as the consolidation of our government by the noiseless, and therefore unalarming, instrumentality of the Supreme Court.”
To Edward Livingston, in 1825 he wrote: “… one single object… will entitled you to the endless gratitude of society; that of restraining judges from usurping legislation,” and to Thomas Ritchie, in 1820 Jefferson wrote: “the judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine our Constitution from a co-ordinate of a general and special government to a general supreme one alone. This will lay all things at their feet… I will say, that against this every man should raise his voice, and, more, should uplift his arm.”
Well, I’d say Jefferson called it, and considering our current situation – that the Supreme Court is fast becoming an oligarchy, it is my opinion that the founding fathers would side with Ted Cruz – that times are becoming desperate enough to allow the people to weigh in on the future of the Supremes.