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The
Declaration of Independence includes these words:
'We hold these truths to be self-evident, that all men are created equal, that
they are endowed by their Creator with certain unalienable Rights, that among
these are Life, Liberty and the pursuit of Happiness. That to secure
these rights, Governments are instituted among Men, deriving their just powers
from the consent of the governed,...'
Three-quarters of a century later, after the Civil War, the 14th Amendment declared
that 'No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws' That
Amendment was not toothless. It included an 'enforcement clause' giving
Congress the power to pass the legislation necessary to enforce the Amendment.
 |
| President Johnson Signing Civil Rights Bill in 1964 |
And indeed they did, notably starting in the latter half of the last century, delivering life, liberty, and the pursuit of happiness to many Americans who had been denied it.
But the Fourteenth Amendment was not foolproof. While
that Amendment makes it clear that Congress shall have power to enforce its
provisions, limiting the powers of the States, it did not and could not include
adequate defenses to limit the power of the Supreme Court to interpret it.
 |
| Newt Gingrich, who led the Republican Party in its efforts to cancel reforms made possible by the Fourteenth Amendment, with his 'Contract With America.' His was the ugly face behind Ronald Reagan's smiling visage. |
The
undemocratic composition of the Senate, the body that controls who sits on the
Supreme Court, is based upon a loaded, ‘thumb-on-the-scale’ formula that goes
back to protecting States' rights, which in 1789 meant remaining silent
regarding slavery. This contrived Senate majority still makes appointment to the SCOTUS of
those who are critics of the Fourteenth Amendment possible. Robert Bork's unsuccessful nomination by
Ronald Reagan in 1987 to the SCOTUS illustrates this, but other such
appointments have been made. The forty-fifth president made three of them. That
is where we are today.
The
problem rests in the Supreme Court's role in the checks and balances between
the three branches of our government, legislative, executive, and judicial. Other than requiring a presidential
nomination and passage by our undemocratic Senate (not the House of
Representatives, mind you), there are no checks restraining the SCOTUS. Far simpler than changing the way the Senate
is elected, enshrined in the Constitution, and the key to all Supreme Court
appointments, would be expansion of the SCOTUS, something that is within the
powers of a president and a Senate which might be inclined to do so.
That
is why it is important, if you agree with such expansion, to support all
Democratic candidates for the Senate, regardless of in what State you happen to
live. And that means donating to their
campaigns if you can afford to do so.
That is how you can protect the Fourteenth Amendment.
JL
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Marty’s
Blog
Martin
London is an eminent attorney, now retired, whose career included litigation
touching upon Spiro Agnew, Roy Cohn, Jackie Onassis, and even Donald Trump. Here is the latest posting from his blog,
words that go over the same territory that I have tried to traverse with what I
have written above.
The
difference is that Marty London is a highly respected lawyer, a Constitutional law
expert and litigator while I am just a retiree with what a high school teacher
of mine once referred to as a ‘social conscience.’ Please read what Marty has to say. Carefully.
He reaches the same conclusions that I did, but with far more evidence.
(Instructions
for receiving email notices of future postings on ‘Marty’s Blog’ appear at its
end.)
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Marty’s Blog
09 JULY 2023
IT''S
NOT BIRDS, ITS NOT PLANES, IT'S SUPER-JUDGES!
"There is no way our Founders could have predicted that one of our three allegedly co-equal branches of government would simply overpower another branch and assume its duties.
This is not an issue of conservatism
versus liberalism. Our judiciary is playing with fire and threatens to subvert
our Constitutional system.
There is only one legal way to amend the Constitution. It is set out in article V, and requires any proposed amendment be ratified by 3/4 of the states. There is nothing in the Constitution that says an alternative route of amendment is a decision by the third branch – the judiciary.
The process began within five years after the adoption of the Constitution. Apparently neither the public nor the legislature realized that a seed has been planted that would some day grow into a vine that would threaten to strangle our Democracy. That seed was the famous decision of Marbury v Madison, in which Chief Justice Marshall, writing for the Supreme Court, self-appointed that body with the ominous power to negate the prerogatives of the president by appointing the court as the sole interpreter of the Constitution. There is no appeal from its decisions, and it is the law of the land. The trite saying "No man is above the law" is actually correct, except as applied to a justice of the Supreme Court!
A string of horrors followed the Marbury case. By 1857, the court in Plessy v Ferguson decided that a black person was a non-person and had no rights whatsoever, not even to avoid enslavement. It took a civil war -- and the consequent 14th amendment, to solve that problem. Congressional civil rights laws followed, but have been harshly trimmed by the current Supreme Court on the ground that they were “no longer necessary.’’
While the 14th amendment makes it
clear that no person shall be deprived of “life, liberty or property without
due process of law”… nor denied "the equal protection of the laws,” the
current Supreme Court has decided otherwise, and recently issued an opinion
that LGBTQ persons can be denied access to certain places of public
accommodation, if the purveyor proclaimed a religious disinclination to provide
services to that group of people. This year's case involved, a designer of web
services, but the ruling applies to anyone who is asked to provide
"expressive" services. So an LBGTQ citizen is not "equal"
when it comes to receiving services that might include, lawyers, tailors,
designers, architects, and anyone else who claims to be religiously offended by
extant legislation that bars discrimination based on race, gender, religion, or
sexual orientation.
On another front, just last week, the Court took it upon itself to strike down presidential action to provide relief for college debtors. A statute passed by Congress gave the administration the right to “waive or modify" any provisions regarding college debt. Yet the six-member conservative majority, relying on a mythical "major issues” concept that gave the court super powers, struck down the president’s debt relief executive order.
The maladministration of justice is not limited to the supremes. Last week, a federal judge in Louisiana enjoined the president and regulators from communicating with social media to correct factual errors that appeared on their platforms. And so if a media platform posts information to the effect that smallpox vaccine causes brain cancer, the CDC or the FDA cannot send them a letter advising them of the fallacy of the information and the harm it could do to the citizenry. The basis of the judge’s decision was, he claimed, the First Amendment. That is extraordinary, because his decision is exactly opposite to the words and meaning of "Congress shall make no law … prohibiting, the free exercise … of speech.”
The list of judicial outrage goes on and on. Recently, of course, we have the infamous Dobbs decision that stripped women and physicians of due process of law, and of their liberty. The court did that by having a significant part of the majority simply ignore — indeed, reverse,— their assurances during the confirmation process, of their devotion to following precedent. Then after they were sworn in, they reversed Roe v. Wade and caused medical and personal chaos throughout much of the United States of America.
And not to be overlooked is the fact that at least two justices who supported the Dobbs decision, believe the basis of that ruling puts in doubt the correctness of the Griswold decision, which, decades ago, invalidated laws that made the use of contraceptive devices illegal.
The end of this Supreme Court term is hardly the end of this year's judicial disgrace. We still have Trump appointee Aileen Cannon in Florida, presiding over that prosecution of Donald Trump. It is an open question as to whether her prior disgraces and reversal of her Trumpy document decisions will affect her future conduct.
And we will see how the ultra-conservative Fifth Circuit deals with the Justice Department’s appeal from that Louisiana judge’s injunction barring the government from writing letters to media platforms.
I could not bring this blog to a close without mentioning the disgrace of the unethical conduct of members of the court who have been revealed as having received gifts that lower court judges would be forbidden to take. And Chief Justice Roberts has basically stiff-armed congressional effort to prod him to deal with the issue. (Roberts is alleged to be concerned about the public's perception of the Court. Ha. The latest poll shows the Court at an all time low of 15% of public approval. What in the world is he waiting for — a negative number?)
The ranks of federal District Court and Circuit Court judges throughout the country are populated by a multitude of intelligent, honest, fair, and benevolent ministers of justice. But this crop of Supremes has disgraced the entire third branch, and something needs to be done about it. I am not suggesting a "Proud Boys" solution. I am suggesting the opposite — a constitutional one. There are two steps that are mandatory:
1. Because I have lost faith in the integrity of the leadership of the Republican party, step one requires that in the forthcoming elections, the Democrats take control of all three branches of the government. And by control I do not mean a one-vote majority in either house, so that a body’s will is subject to be frustrated by any single member at any time.
2. Congress must then pass, and the president must then sign, a bill authorizing the appointment of four additional Justices. No other scheme works. We save our Constitution or we lose our Democracy.
A bientot.
.................................
This blog is public and can be
forwarded at will. There is no fixed schedule for these posts. If you
would like to receive a notice of each new posting appearing on ‘Marty’s Blog,’
please fill out the form at <"http://eepurl.com/gf7fS9">. "
* *
And let me add that anyone
can access it at https://londonsbh.blogspot.com
JL
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