"Divine Right" Judges - Death of Representative Government

With the death of Supreme Court Justice Antonin Scalia, the U.S. Constitution, as it was understood by the men who drafted and ratified it, is one vote away from being a dead letter.


In 2015, the U.S. Supreme Court decided Glossip v. Gross. The issue was whether the drug cocktail Oklahoma chose to effect a murderer’s execution, violated the 8th Amendment’s ban on cruel and unusual punishment.


Not content with deciding that issue, Justice Stephen Breyer, employing his “modern view,” wanted to declare the death penalty unconstitutional in all cases:


“Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the Clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment.”


Justice Scalia relying on “original intent,” disagreed:


“Not once in the history of the American Republic has this Court ever suggested that the death penalty was impermissible. The reason is obvious. It is impossible to hold unconstitutional that which the Constitution explicitly contemplates. The Fifth Amendment provides that ‘[n]o person shall be held to answer for a capital ... crime, unless on ... indictment of a Grand Jury, and that no person shall be deprived of life ... without due process of law.”


“Nevertheless, today Justice Bryer takes on the role of the abolitionist ... arguing that the text of the Constitution and two centuries of history must yield to his ‘20 years of experience on this Court.’”


Justice Scalia has been called an “originalist” -- that is, someone who tries to construe the Constitution consistently with the intent of the founding fathers.


What is original intent?


Many Americans, including many who should know better, choose not to understand the meaning of original intent. By way of example, the 4th Amendment provides “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ... particularly describing the place to be searched, and the persons or things to be seized.”


When the 4th Amendment was adopted in 1789, automobiles and airplanes didn’t exist. “Original intent” does not require that cars and planes be excluded from 4th Amendment protection; rather, it requires they be accorded protection comparable to that given to 18th century coaches.


Our Constitution was not a document drafted by philosophers. Almost every line included was designed to insure that the abuses of the English kings, who claimed to rule by divine right, did not come to America. America was to be ruled by law, not by royal whim. That is the meaning of Article VI supremacy clause, “This constitution, and the laws of the United States which shall be made in pursuance thereof; ... shall be the supreme law of the land; and the judges in every state shall be bound thereby.”



Constitution supreme law


Note that our constitution, and not the fiat of a king or president, is the “supreme law” of the land.


But if the “intent of the men who created the constitution” is to be abandoned for more “modern” or “progressive” constructions, then whose intent should be utilized? Barack Obama’s? Donald Trump’s? Jesse Jackson’s? David Duke’s?


There are nine Supreme Court justices. Does each have a right to construe the constitution according to his own lights? Did we eschew governance by the “divine right kings” only to replace it with the “divine right of judges?”


With Justice Scalia on the bench, Americans were assured of a judge who would attempt to follow the law as it was given him by the founders, rather than make it up or change it to comport with his more enlightened notions of what the law should be.


Presently there are four judges on the court who read the constitution in a way so that it comports with their more enlightened notions of what the law should be. If the Senate confirms a fifth, the constitution as the founders understood it, is a dead letter. It will be an era of “divine right” judges.



Posted: March 16, 2016, QCOline.com


Copyright 2016


John Donald O'Shea