The Constitution

Courts Can’t Control the Constitution

todayApril 7, 2009 1

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Begin Mike Church Show Transcript

Mike: As a studier of the republic, this is how you can arrive at a – let’s just call it a lazy man’s way to what is constitutional and what is not.  Take whatever case you think that you’re upset with that a judge has decided instead of a legislature and apply the rule.  With what you know about the American Revolution and the Declaration of Independence, and with what you know about the founding fathers, would the states have ratified the compact between themselves, creating the federal government, if they knew that this was going to happen?  And the answer is no.

Back to Andy McCarthy.  And by the way, telephone number is, if you have a contrary opinion to that, because maybe the state of California would because they love, seem to love and embrace tyranny of judges, seem to love and embrace anything that undermines and seeks to destroy any sort of little “r” republicanism, especially if it doesn’t religiously agree with theirs or with their opinion and their secular view of the way things ought to be.  Ditto that for Massachusetts and New York.  So there may have been a few states that would have ratified.  Would they all have ratified?  Would Alabama have ratified if it were a member of the Union that were considering a new Constitution?  Would it?  Back to Andy McCarthy today, “Fiction or Faction.”

“Leftists would supplant politics, the untidy, bumptious business by which the people control their own destiny, with ‘the rule of law.’  With that clever euphemism, they bank on our reverence for the ideal of ordered liberty, hoping we’ll never catch on to the fact that we’re to be ruled not by law but by lawyers – predominantly, progressives trained to regard the law not as a predetermined code to ensure social order but as an evolving tool to promote social change.

“The U.S. Supreme Court gave the game away 17 years ago when it reaffirmed the right to abortion it had created – preempting the democratic process – nearly two decades earlier.  In their joint opinion for the majority in Planned Parenthood v. Casey” – and by the way, Casey was the former governor of Pennsylvania.  That’s Casey the Younger’s dad, the Senator from Pennsylvania now, Bob Casey – “Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter, whose law degrees evidently qualified them as master sociologists, decreed:

“‘Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe … its decision has a dimension that the resolution of the normal case does not carry.  It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.’”

This is ridiculous.  There’s no such power accorded to any court by the Constitution.  Yet that’s what we deal with today.  And here’s McCarthy’s translation:

“‘Stand down, you rubes.  We’ve decided this one for you.’  Nothing in the Constitution empowers judges to call on factions to end their divisions.  The Framers were wise enough to know that [this] was not possible.  Nor are courts authorized to issue ‘common mandates.’  These are nothing more than diktats, rooted not in the Constitution but in the judges’ own subjective values, which they purport to find reflected in our ‘organic’ law the same way Narcissus saw the face of perfection in the pool.

“Courts are not there to resolve national controversies, to stand outside and above the United States.  They were created as a sub-section of government to remedy individual injuries, and they were given no power to enforce their judgments.  That, indeed, is why Hamilton (in Federalist No. 78) anticipated that the judiciary would be the ‘least dangerous’ branch.”  Well, Hamilton was wrong.  And it goes on from there.

“In fact, the law of ‘standing,’ which addresses what grievances litigants may bring before courts, teaches that the more a controversy affects the body politic rather than the individual citizen, the less appropriate it is for judicial resolution.  It is for just such controversies that we have political rights.”

Well, you should say, Andy, that we “had” political rights.  What he’s saying here is in effect this.  I’ll sum this up, then we’re going to take the timeout, then we’ll get to the phones and the digital media files and all the rest of the fun and frivolity that we have for the day.  What Andy McCarthy is saying here today is this.  And we’ve talked about this on the show before, and we’ll talk about it today.  What he’s saying here is this, is that the American system of a limited government republic was set up so that there would be these things called “factions,” and that there would be local rule.  So that if the people of any particular county or state wanted to pass laws that they, in their Christian sovereign estimation or intelligence, believed to be to their benefit and to the mutually exclusive benefit of their state, then they were free to do so.  Judges were not there to second-guess the law.  Judges were there to read the law and determine if someone had violated it.  They weren’t there to determine the original intent of it.  They weren’t there to determine how it was to be applied and to who it was to be applied.  They weren’t there to search for divine truth, happiness and justice or fairness and equality.  They were there simply to determine whether or not a party charged under the law is guilty or not.  That’s it.  Nothing that they can say adds to or subtracts from the law.  That is not their role.

But today that’s not the role that they play.  Today’s role is that, no, they determine whether or not it’s just.  They determine whether or not it is fair.  They determine whether or not it is making everyone equal.  And they don’t do what it is that they’re supposed to do.  Or that is, is the person charged under the statute guilty or not guilty?  That’s what the judge is there for.  If a judge wants to be a legislator, then run for office, sir.  And that’s not what we have.  Whether it’s the federal courts, the Iowa courts, the Supreme Court, all of them believe themselves to be the determiners of social policy and the determiners of what is good, what is fair, what is right, what is constitutional, whatever the hell that means these days, and what is not.  This is a different kind of tyranny.  And the fact that rulings from courts seem to be the law of the land here, ladies and gentlemen, that is not the role of the judiciary.  The legislatures make the laws of the land, not the courts.  The courts, in concert with the executive, enforce the law of the land.  Does everybody understand the difference?

End Mike Church Show Transcript

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Host of the Mike Church Show on The Veritas Radio Network's CRUSADE Channel & Founder of the Veritas Radio Network. Formerly, of Sirius/XM's Patriot channel 125. The show began in March of 2003 exclusively on Sirius and remains "the longest running radio talk show in satellite radio history".

Written by: TheKingDude

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