Original Intent vs. Everything Else

President Donald Trump nominated Judge Brett Kavanaugh to serve on the U.S. Supreme Court because the president believes Kavanaugh will construe our Constitution consistently with the “original intent” of the men who wrote it.


I came to Rock Island County in September 1966 to work as an assistant state’s attorney. Shortly after I came, one of my fellow assistants told me of his uncle, a former justice of the peace, who had proclaimed, “I don’t care who makes the laws, so long as I can say what they mean.”


I was appalled. His uncle was saying that under the guise of interpreting the law, he would rewrite the law to say what he wanted it to say, rather than what the people’s representatives who wrote it, meant it to say.


The United States is a democratic republic.


We are a democracy because we elect the people we want to represent us and make our laws.


We are a republic because the people we have chosen make our laws on our behalf. That is the first principle of our U.S. Constitution. Article I provides, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.”


Note, it says “all.” It does not say “some” or “most.” If all legislative power is vested in Congress, then none is vested in the president or in any judge.


Article II provides, “The executive power shall be vested in [the] president.” He takes an oath to “faithfully execute” and to “preserve, protect and defend the Constitution.”


Justices of the U.S. Supreme Court are judges; not members of Congress. They are not elected to make our laws. Under our Constitution, no power has been vested in judges to make or rewrite our laws.


Under Article III of the Constitution, they are vested with judicial power.


Article V provides two alternative methods to amend our Constitution. Neither the president nor any judge has any role in the amendment process.


This tripartite process — Congress making our laws, the president executing those laws, and the Supreme Court judging what our Constitution and those laws mean — is known as the “separation of powers.”


Our Constitution is a product of experience, not logic.


The experience of the American people living in the 13 English colonies was the force behind Article I. The colonists had grown used to electing their own colonial representative assemblies. Those assemblies made their laws, and taxed them.


When the English King and Parliament asserted a parliamentary right to impose taxes on the colonies in an end run around their colonial assemblies, we fought and won a Revolutionary War, largely over the principle of “no taxation without representation.”


During the constitutional cConvention, it quickly became obvious that the American people would accept no king. The men who drafted our Constitution were well aware of the kingly claims of royal prerogative.


To insure that the American president could have no basis to claim a divine right to make laws or rule by decree, the founders vested ALL legislative power in the House of Representatives elected by the people, and a Senate by state legislatures.


The executive, the president, was vested only with power to execute those laws, not make, amend or repeal them.


The notion that judges can make laws or amend the Constitution by their decrees is even more undemocratic and unconstitutional than a president ruling by decree.


The president, at least, is elected by the people through their electors. We did not boot out a king who wanted to rule by decree to replace him with nine guys in black robes who would do the same.


The canard that a judge, who construes the Constitution consistently with the intent of the men that wrote it, is somehow a far right-winger or out of the mainstream is either a lie, stupidity, or the ranting of a lunatic with a superiority complex who wants our Constitution replaced with one that embodies his more enlightened notions of what a better constitution should say.


Once Supreme Court judges abandon construction of our Constitution in accordance with the founder’s original intent, then every judge's notion of what the Constitution should mean is equally valid. There is no anchor.


Every judge's new rule of construction becomes, “I don’t care who makes the laws, so long as I can say what the laws mean.”


My liberty is secure under James Madison’s construction of our Constitution. I don’t want to risk it with the more enlightened 21st century constructions.

Posted: QCOline.com July 26, 2018

Copyright 2018, John Donald O'Shea

Seven Lawyers I Would Trust with my Liberties

Since Shakespeare, it has been fashionable to hate lawyers - "The first thing we do, let's kill all the lawyers." Henry VI, Part 2.


Two events recently, have caused me consider that line. The first was the 2016 Presidential election; the second was a recent Bar Association meeting. I only attend one or two RI County Bar Association meetings a year, but on October 20, I went.


Being rather old myself, I found myself sitting with seven other "senior" lawyers - all but one, older than myself. Like myself, three were Notre Dame grads: Jim Coryn, Pete Fieweger, and Frank Edwards. Also present were Curt Trevor, Bob Alvine, Ken Collinson and Bob Scott.


As we dined and visited, I suddenly realized that any of the seven men would have been an infinitely finer candidate for President than either Mrs. Clinton or Mr. Trump.


I met six of these men directly upon moving to RI County in 1966 to work for State's Attorney Dick Stengel. I met Bob Alvine, a few years later. In the fifty years that I have known them, I have never heard a word from anybody impugning - or even questioning - their ethics or their legal competence. All seven were possessed of fine legal minds. All served their profession, their clients and their communities with grace and distinction. Each has had a knowledge of the law which would have allowed them to discuss the great constitutional issues at stake with ease, understanding and grace. I  can say with conviction that during my 26 years on the bench, I was privileged to hear the arguments made by Pete Fieweger, Bob Alvine, et al. I feel certain that anyone of the seven during his prime would have made "mincemeat" of Mr. Trump or Mrs. Clinton in any Presidential debate, anytime, any where.


Unlike either candidate, when asked about "stop and frisk," "late-term abortion," or the Citizen's United case, any of these men - with modest preparation - would have cogently and persuasively explained the meaning and import of these matters to the American people. None would have "pivoted' (i.e., ignored the question asked, or answered a question not asked). All would have had an informed position on the issues, and all would have clearly explained their respective positions.


To me, the most important issue in this campaign was "what sort of judge will you (Mr. Trump or Mrs. Clinton) nominate the the U.S. Supreme Court? I see our government slowly - but persistently - "nipping away" at our liberties as understood by the men who wrote our Constitution and Bill of Rights. In lieu of "individual liberty" we are offered "equality/income redistribution."


Our founding fathers understood that Kings - and even Democracies - will always chisel away at personal liberties, in the name of some other perceived good - equality, national security, financial security, etc. And in the end, the King, with his prosecutors and powers of taxation, always wins; and the liberties of the people are always subverted.


At the third Presidential debate Chris Wallace asked Mrs. Clinton: “Do the Founders’ words mean what they say or is the Constitution a "living document" to be applied flexibly according to changing circumstances?” That was a false choice.


The real question is this: Taking for granted the our Constitution and Bill of Rights were crafted to govern American life not only in 1789, but also in the ensuing decades and centuries, (and is therefore a "living document"), do you believe it should be construed to carry out the intent of the men who wrote it, or should it be construed to carry out the intent of later political men, such as George Wallace, Richard Nixon, Hillary Clinton, Donald Trump or whatever politically appointed judge who happens to be hearing the case, as they think best?


I am satisfied that my liberties would be secure in a modern cell-phone case under our Constitution if Washington, Adams or Lincoln were the judges. I have no such confidence in Mr. Trump or Mrs. Clinton. But I would feel secure if any of the seven lawyers named above, were the judge.


The bottom line: Speak well of good lawyers.

Posted: QCOline.com November 6, 2016


Copyright 2016, John Donald O'Shea

"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

Alexander Hamilton Wins: Congress Is All-powerful

"Congress may also 'lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.'" -- Article 1, U.S. Constitution

Chief Justice John Roberts and four liberal justice have written an opinion upholding Obamacare which conclusively demonstrates why the Constitution must be construed consistently with the intent of people who wrote it, but even more importantly, with the intent of the people of the 13 states who voted to adopt it in 1789.

The chief justice begins the majority opinion with a statement of law that nobody who has studied the Constitution could possibly disagree with:

"The Federal Government 'is acknowledged by all to be one of enumerated powers.' That is, rather than granting general authority to perform all the conceivable functions of government, the Constitution lists, or enumerates, the Federal Government's powers. ... The Constitution's express conferral of some powers makes clear that it does not grant others. And the federal government 'can exercise only the powers granted to it.'"

From there, the chief justice, goes on to write an opinion that gives the U.S. government a power to tax so extensive, that had it been so explained by the "Federalists" to voters prior to its 1789 ratification, the people of the 13 states would have overwhelmingly voted against it.

Indeed, the opinion grants Congress an unlimited power to tax for the "general welfare" -- a power that no American in his right mind would have voted for in 1789.

Here are excepts from the opinion that show just what the five-judge majority said.

"The Government advances two theories that Congress had constitutional authority to enact the individual mandate. First, the Government argues that Congress had the power to enact the mandate under the Commerce Clause. Under that theory, Congress may order individuals to buy health insurance because the failure to do so affects interstate commerce, and could undercut the Affordable Care Act's other reforms. Second, the Government argues that if the commerce power does not support the mandate, we should nonetheless uphold it as an exercise of Congress' power to tax."

The court did not sustain the constitutionality of the "individual mandate" under the power to "regulate commerce."

What it said in reference to the Commerce Clause, was dicta unnecessary to its ultimate holding, "The Constitution grants Congress the power to 'regulate Commerce.'

"... The power to regulate commerce presupposes the existence of commercial activity to be regulated. "The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress's actions have reflected this understanding. There is no reason to depart from that understanding now."

The majority clearly held that under the Commerce Clause the Framers "gave Congress the power to regulate commerce, not to compel it."

That much of the opinion was consistent with the the court's earlier statement that government 'is acknowledged by all to be one of enumerated powers." But all that was unnecessary to the ultimate decision.

The five-judge majority rendered its decision relying on the "taxing power" to, in effect, "regulate commerce" to an extent not authorized by the "commerce power" itself:

"There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under 5000A(b) remains a burden that the Federal Government imposes for an omission, not an act.

"If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something."

So, if the intent of the Framers is important, why isn't the intent of the American people who voted to ratify the Constitution in 1789 even more important? Did they have any inkling in 1789 that in voting to ratify the constitution they were authorizing Congress to impose a tax for not doing something?

Under this holding, Congress has to tax you to "provide for the General Welfare:"

-- If you heat your home with natural gas, or if you don't heat your home with solar panels;

-- If you have children, or if you don't have children

-- If you have too many children or not enough children;

-- If you use contraceptives, or if you don't use contraceptives or if you use too many contraceptives, or not enough contraceptives;

-- If you have an abortion, or if you don't have an abortion;

-- If you eat broccoli, or if you don't eat broccoli.

-- If you are too fat, don't go on a diet

-- If you eat anything the government deems unhealthful;

-- If you breathe, inhale oxygen, or exhale CO2;

-- Or if you die.

Are these the powers Americans in 1789 intended to vest in Congress?

What is the point of creating a government of "enumerated powers," if, by use of the "taxing power," government power is unlimited."

Alexander Hamilton's theory of an unlimited "taxing power" as expressed in his "Report on Manufactures to the House of Representatives" has been taken to the extreme by five justices.

The views of Madison, Jefferson, Calhoun and the American people who voted to ratify the Constitution have been relegated to the ash can.

I now see why the figure of justice is always seen wearing a blindfold: it is so she can't see the damage being done to the original intent of our Forefathers by judges writing the opinions.

Posted Online: July 05, 2012, 5:00 a.m. - Quad-Cities Online

by John Donald O'Shea

Copyright 2012, John Donald O'Shea