Mandeville, LA – Exclusive Transcript – “Understand this, know this, live it, sleep it, eat it, breathe it, repeat it. There is no Congress without a Constitution; therefore, there can be no act of Congress without a Constitution. Why is this so difficult to understand? Why can’t people understand this unilaterally? This should be ubiquitous. Every soul on earth ought to be able to understand that.” Check out today’s transcript AND Clip of The Day for the rest….
Begin Mike Church Show Transcript
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Mike: …written by Raoul Berger, who, as previously stated, Professor Dr. Kevin Gutzman says is the most brilliant constitutional mind of the last half of the 20th century.
The Constitution represents fundamental choices that have been made by the people, and the task of the Courts is to effectuate them, not to construct new rights. When the judiciary substitutes its own value choices for those of the people it subverts the Constitution by usurpation of power. No dispensation was given to the Court to step outside its powers; it is no less bound by constitutional limits than are the other branches, as the historical evidence makes plain. First, it was clearly excluded from participation in the making of policy …
Mike: Kristin, Roe v. Wade is in act. It is a policy act. That’s what it is. People use it. The libs use it as policy. They refer to it as if it’s an act of Congress. They refer to it as if it is policy. They say after the fact: We have policy established, precedent and policy. Where did the policy — Congress never made this policy. The court made it. Continuing:
No agent, said Hamilton, “can new-model his commission,” and the most benign purpose does not authorize the judiciary to remodel its powers. Indeed, we need to be rid of “the illusion that personal power can be benevolently exercised.” The Founders knew, in Jacob Burckhardt’s phrase, that [private |FP-Monthly|FP-Yearly|FP-Yearly-WLK|FP-Yearly-So76|Founding Brother|Founding Father|FP-Lifetime] “Power is of its nature evil, whoever wields it.” They knew, as Madison stated, that all “power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.” “Judicial power,” Justice Frankfurter remarked, “is not immune against this human weakness”; and the Court’s progressive intrusion over the years into the domain of policymaking, from which it was plainly excluded, points the moral. [Mike: Then he goes on to do some more. I’ll finish it with this.]
Finally, well aware that there existed considerable distrust of the proposal for judicial review, Hamilton sought to allay it in Federalist No. 81 by calling attention to the “important constitutional check which the power of instituting impeachments . . . would give to that body [Congress] upon the members of the judicial department. This is alone a complete security. There can never be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it.”
… Justice Warren recognized, “We are oath-bound to defend the Constitution. This obligation requires that congressional enactments by judged by the standards of the Constitution.” Substituted judicial made-to-order “standards” are not really the “standards” of the Constitution, as the State “reapportionment” cases plainly evidence. The significance of the judicial oath is illuminated by that of the President, who does not swear to defend the nation, but to “preserve and defend the Constitution,” on the inarticulate premise that the life of the nation hangs on the preservation of the Constitution.
Mike: I’m going to put a highlighter on that one there. Let’s read that one again. This is Raoul Berger writing about the oaths and why they matter, and why the rulebook, the Constitution, matters. Listen to this:
The significance of the judicial oath is illuminated by that of the President, who does not swear to defend the nation, [Mike: Boy, don’t tell that to the decepticons out there that are running for president because they think that’s all they’re sworn to do, bomb, bomb, bomb, kill, kill, kill.] but to “preserve and defend the Constitution,” [Mike: That’s in Article II, by the bye.] on the inarticulate premise that the life of the nation hangs on the preservation of the Constitution.
Mike: It’s just like I have told you over and over and over and over again, ladies and gentlemen. It doesn’t matter how many 100,000 times I’ve said it or Professor Gutzman has written it, or Professor Woods, or Professor McClanahan, or any of the brilliant writers at Nomocracy In Politics, etc., etc. have said this. It doesn’t seem to sink in and it doesn’t seem to matter. Understand this, know this, live it, sleep it, eat it, breathe it, repeat it. There is no Congress without a Constitution; therefore, there can be no act of Congress without a Constitution. Why is this so difficult to understand? Why can’t people understand this unilaterally? This should be ubiquitous. Every soul on earth ought to be able to understand that.
If there is no Constitution, then there is no Congress. Certainly then there is no Article III judiciary. Certainly then there is no president. So if in the former instance the Constitution gives the entity life, which it does, then why isn’t it relied upon to provide the framework, the identity, the pursuit of that life? That’s the way it’s supposed to work. It doesn’t. We have ad hoc, make-it-up-as-you-go-along, fiat Congress now. Very little deference, if any, to the rulebook, to the Constitution that gives that body life. Continuing with Berger now:
Third, conclusive evidence that the judiciary was designed only to police constitutional boundaries, not to exercise supraconstitutional policymaking functions, was furnished by Hamilton. In Federalist No. 78 he stressed that the courts were to serve as “bulwarks of a limited Constitution against legislative encroachments”—a note repeatedly sounded in the subsequent Ratification Conventions. The word “encroachments” posits prior legislative action; it excludes judicial policymaking initiatives on ground of legislative inaction. This is confirmed by Hamilton’s statement that the judiciary “can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.” Chief Justice Marshall rephrased this in unmistakable terms: the Court was only to give “effect to the will of the legislature.” Hamilton rejected the argument that the courts were empowered “to construe the laws according to the spirit of the Constitution”; “penumbras formed by emanations” were not for him. What he meant is made quite clear by his rejection of the notion “that the courts on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature,” a statement, Louis Lusky notes, that “is hard to square with anticipation of judicial constitution-making power.”
Mike: There’s just so much depth and brilliance in Raoul Berger’s Government by Judiciary. I was joking earlier when I said don’t buy a copy. By all means, if you can find it — as a matter of fact, it’s in the Amazon widget at MikeChurch.com. Under every single article that we have, scroll all the way to the bottom and you’ll see the Amazon widget. Scroll through it and you’ll find Government by Judiciary. I think there’s a paperback edition of it. [/private]
In any event, it is the finest work in refuting whether or not the Supreme Court was supposed to act as a Supreme Court and was supposed to answer all these vainglorious questions. It was supposed to act as some sort of an oracle. You go there, get down on your knees and chant. Throw your Mordor on the Potomac prayer mat down and ask the oracle a question. The nine oracles, the nine muses respond with an answer. That’s not the way it was supposed to work, and that’s not what was sold to the states when they ratified the Constitution.
Finally here on this discussion, some of you may say: Why does that matter? Why do I care about it today? Well, you care about it for a variety of reasons, but the least of which is my previous argument that without a Constitution, there is no Congress and there is no court. The Constitution plainly, by its own words, by the men that ratified it and the men that wrote it, was intended to be a legislature that made the laws, a president that executed the laws — not his own, not inserted his own preference. He was but the executor. That’s all he was supposed to do. He was the sheriff, in other words. And then a judiciary that, if there were disagreements over what the legislature had done, then the court could come in and say: What does the Constitution say about this case and about this controversy? Why do you think it’s worded in Article III about controversies arising under this Constitution? Because that’s precisely what it was supposed to do. None of this was granted to the Warren Court in Roe v. Wade, Griswold v. Connecticut, Miranda v. Arizona, etc., etc., none of it, folks, none of it.
End Mike Church Show Transcript