For the past 60 years, liberals have had their way not through the ballot box but by court coercion. It was not the will of the people that instigated the silent revolution of social engineering and societal upheaval, but justices on the U.S. Supreme Court sympathetic to liberal ideals.
But now the High Court may turn from friend to foe. There is thunder on the Right presaging a storm between the liberals and conservatives. Three conservative judges, Samuel Alito, Clarence Thomas, and Neil Gorsuch signaled a return from ideology to law, and that spelled war.
The battle line was drawn in May. The Fourth Circuit Court, dominated by Obama Democrats, and the Ninth Circuit Court, dominated by Clinton Democrats, struck down Trump's executive order EO banning immigrants from seven nations.
A president's authority in matters of immigration is indisputable. It is firmly based on the Constitution and in congressional law.
The Constitution empowers Congress “To establish a uniform Rule of Naturalization.” Congress, in turn, enacted federal legislation that gave the president complete control of immigration. The statue reads:
“Whenever the President finds that the entry of any aliens would be detrimental to the interests of the United States, he may suspend the entry of all [such] aliens.”
Trump found aliens from these nations to “be detrimental” so “he suspended their entry” into the United States.
The law could not be stated more clearly, or the legality of Trump's EO disputed. Nevertheless, the Fourth and Ninth found a way. They struck down the document, not based on its content but on Trump's statements made during the primaries.
Outrageous!
Think for a moment. What if every document or contract was judged not by its content but by what its drafters said? What if the actual stated meaning of a document is superseded by hearsay? All such documents or contracts would be rendered worthless.
The Fourth and Ninth Circuits Courts are a disgrace. They have betrayed their oath to uphold the Constitution in favor of their allegiance to what they think is just.
But the glory days of the Left may be numbered.
After Gorsuch had been seated among the nine, the president's counsel appealed the ban to the Supreme Court. The Court reinstated the EO---in part.
Some commentators hailed the decision as Solomonic. The Court cut the baby in half and gave each side something to crow about. Others thought the 16-page decision muddied the waters until oral arguments could be made before the Court this October.
Though the Court's reinstatement of Trump's travel ban was unanimous, three Justices, Alito, Thomas, and Gorsuch expressed a dissenting opinion. They thought the EO should have been completely reinstated.
But why the six-to-three split? It's all in interpretation.
There are two ways to read the Constitution: the living document school and the originalist method.
The living document approach views the Constitution as being open to dynamic interpretation by the Supreme Court in ways other than specified by the Founders in Article 5 of the Constitution. As such it is readily adaptable to society's changing mores.
For example, in 1973 the nine unelected members of the presidium decided that abortion was a women's right. They discovered this “right” hidden in of all places the 14th Amendment. Seek, and ye shall find. The vote was 7-to-2, meaning that just three votes determined the issue of abortion.
In 2015, the U.S. Supreme Court ruled that the Constitution---which does not mention marriage---guarantees the right to same-sex marriage. This “right,” too, was found tucked away in the 14th Amendment. Article 5 was again ignored. The vote was 5-to-4. Thus one dictatorial vote decided the issue for 320 million citizens.
Originalists, often inaccurately described as conservatives, interpret the Constitution as stable from the time of its enactment to the present. It is to be understood in the straight-forward way that the drafters intended. Changes or additions to the Constitution may only be accomplished by steps set out in Article 5.
For example, in 1919, the 18th Amendment established the prohibition of alcoholic beverages in the U.S. In 1933, it was repealed by the 21st Amendment. Both amendments followed Article 5. As in all amendments, changes were brought about by a supermajority of the electorate expressed through their elected representatives.
The last addition to the Constitution was in 1971. It gave 18-year olds the right to vote. Since that time the Supreme Court has supplanted the Constitution.
Justices Alito, Thomas, Gorsuch, and perhaps John Roberts are all originalists.
The Court is evenly divided: four originalists; four living documentists, and one swing vote. That's going to change.
Three members of the Court may soon retire: Ginsburg (84), Kennedy (81), and Breyer (79).
Whoever leaves the Court first will create a vacancy filled by a Trump tiebreaker. A Trump appointee will tilt the Court to the Right. That person will provoke a knock-down, drag-out, no- holds-barred, barroom brawl.
Fight fans across the nation will take ringside seats for this rumble that could deliver a knockout blow to the tyrannical Left.
Sincerely,
Bob Scroggins
New Milford, PA