According to Aaron Belkin, director of the progressive group Take Back the Court, “The Supreme Court is a danger to the health and well-being of the nation and even to democracy itself. . . Adding seats is the only way to restore balance to the court, and Congress should get started right away.” Justice Stephen G. Breyer, in a recent speech at Harvard Law School, warned proponents of packing the Supreme Court to “think long and hard” about the risks of the court being viewed as more political, undermining the trust in the institution.
With no disrespect to Justice Breyer, the Supreme Court has been highly political going back to 1801; even more so today! As Chris Farrell from Judicial Watch, in an article for the Gatestone Institute wrote, “U.S. Supreme Court Chief Justice John Roberts scrupulously ignored every 2020 election legal challenge raised by former President Trump in order to assure a legally uncontested Biden victory.” As Justice Clarence Thomas recently wrote in a dissenting opinion, “we received an unusually high number of petitions and emergency applications contesting [the changes to the election laws by nonlegislative officials in various States]. These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so before the next election cycle. The refusal to do so is inexplicable.”
The call for court packing just might motivate the Supreme Court to finally do the right thing. When the Supreme Court decides to accept certain cases, many important opinions have been 5-to-4 split decisions. If nine of the so-called best legal experts in the country cannot agree on what a statute or regulation means, how are average Americans to understand the law?
During his confirmation hearing, Chief Justice Roberts stated, “my job is to call balls and strikes.” No, it’s not! Not in a Free Republic! As the late Justice Bradley understood, “It is the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments [by Congress and Government.]” Three simple rule changes just might Take Politics Out of the Supreme Court and Restore Freedom; and, either nix the court-packing scheme or make it much more beneficial to individual freedom.
Over 20-years ago, the late Dr. Walter E. Williams wrote, “During earlier periods, Congress and the Supreme Court had far greater respect for the Constitution. They understood that if the federal government was to have a power not delegated, or expressly forbidden, by the Constitution, they had to use the provisions of Article V to gain that power by amendment.” For example, in 1919 Congress understood that to prohibit the sale of alcohol, it required the passage of the Eighteenth Amendment. “Today, it’s an entirely different story, Congress, the White House and the Supreme Court have abiding contempt for the Constitution and . . . Americans are left with a constitutional carcass.”
As Dr. Williams pointed out, “No matter what [Americans may] think about the alcohol prohibitionists, [they] can have a bit of admiration for them because [the alcohol prohibitionists] used the constitutional route to get their agenda across.” Whereas today, “constitutional stealth” (e.g., taxation, majority votes for legislation and “totalitarian tactics” of agencies like the EPA, FDA, CDC, SEC, FBI, FinCEN, and IRS) seems to be employed to circumvent the Constitution; thereby avoiding the amendment process required by Article V.
Dr. Williams continued, “. . . the education establishment has played a greater role through the dumbing down of Americans. The resulting ignorance has allowed . . . charlatans and quacks in the legal profession [to] tell [Americans] what the Constitution means.”
Since the progressives/liberals, led by President Joe Biden, do not like the idea that the Supreme Court appears to have 6 conservative justices and only 3 progressives/liberals, Biden appointed a commission—composed of 36 legal scholars, former judges and practicing lawyers—to produce a report in 180 days, including a discussion about packing the Supreme Court and imposing term limits.
One of the commission members is professor emeritus at Harvard Law School, Laurence Tribe, who believes the constitution to be “. . . imperfect, and . . . highly objectionable.” Tribe also referred to the Founders as a “highly limited constituency of white property owners . . . with whom most [Americans] have only the most limited link (if any at all), [who decided] to limit our future freedom to exercise power.” Tribe used “esoteric hermeneutics” to rationalize expansive powers for the government assuming his students and followers lacked the ability to think critically. He used the term “freedom” instead of the word “ability’ i.e., the Founders tried to limit the future ability of elected officials, democratic majorities, and enthusiastic minorities from exercising power to limit the freedom of their fellow citizens. Tribe, in his contempt for the Constitution and the American Founders, has attempted to make his students and followers believe that our Founders were trying to limit freedom, which is preposterous. The American Founders constructed a Constitutional Republic, with written guarantees and separation of powers, in hopes of limiting the ability of government to restrict individual freedom.
Unfortunately, the written guarantees and the separation of powers has not been enough to overcome the indoctrination spewed from government-controlled compulsory schooling, resulting in the “dumbing down of Americans” allowing “charlatans and quacks in the legal profession,” like Laurence Tribe and his ilk, “[to] tell [Americans] what the Constitution means.”
As Professor Richard A. Epstein asserted, “The Progressives were wrong on matters of constitutional interpretation because they consciously used their intellectual powers to rewrite . . . key provisions of the constitutional text.” Professor Randy E. Barnett agreed, “Since the adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power. . . All this has been done knowingly by judges and their academic enablers who think they can improve upon the original Constitution and substitute for it one that is superior.”
Because of the creation of the Biden Commission requiring a report in 180-days, the Supreme Court has an opportunity to restore respect to the institution; stop the power-grab by Congress and the Executive Branch; and put us back on the path towards more individual freedom. To do this, the Supreme Court need only look to Article III, Section 1, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . .” Just like the House and Senate does, the Supreme Court can make and change its own rules regardless of what the Biden Commission Report says, no matter what the President does, and no matter what Congress attempts to do.
If term limits are proposed, it would require a constitutional amendment in accordance with Article V, which must be ratified by 38 States. Assuming the Supreme Court steps up and does the right thing, term limits should not be an issue.
Under Article II, Section 2, the President has the power to nominate Judges to the Supreme Court and with a Senate majority (51 votes), he can add as many Justices as the progressives/liberals so desire. Let’s say the Bidden-Harris Administration is able to appoint six more Justices to the Supreme Court for a total of 15. By changing its own rules, 15 Justices could be divided into three 5-member Courts, enabling the Supreme Court to hear three times as many cases each year as it has done in the past. Court packing might then lead to the restoration of individual freedom, rather than a vehicle to solidify the progressive/liberal agenda. In other words, the Supreme Court can make and change its own rules, just like the House and the Senate, i.e., it can decide how current and future justices are to be assigned cases.
What the American colonists faced in 1776 at the hands of the British and King George III, in the form of taxation and regulation of their every-day lives, was negligible compared to what Americans face today. Things are coming to a head. As Professor Barnett stated, “Americans today are [sharply] divided politically, ideologically, and culturally.” Professor Epstein acknowledged, “The survival of past societies has depended heavily upon the choices of laws, just as [America’s] survival and prosperity is heavily dependent upon the choices, often conscious and deliberate, that [are made] today.”
We are at a crossroad. To avert another American Revolution, or, to at least delay it, it is imperative to change the rules of the Supreme Court through a measured transformation to restore individual freedom.
The following rules should be promulgated by the Supreme Court:
1. Unanimity is required, otherwise the legislation or regulations are deemed void-for-vagueness and unconstitutional.
2. All Justices must use the same method of constitutional interpretation using the Doctrine of Freedom or “Rightful Liberty” or the “presumption of liberty.”
3. The Supreme Court must be required to review ALL cases that concern constitutional issues that suggest an infringement upon “unalienable Rights” to life, liberty, and the pursuit of happiness or property, to include the right to earn a living, contract disputes with government, and the right to self-defense of persons and property.
A detailed explanation and support for the rule changes can be found in Take Politics Out of the Supreme Court and Restore Freedom, by Robert G. Beard, Jr., available through www.jeffersoniangroup.com or directly from Amazon.
The Supreme Court may be our last resort. As the late Nobel Laureate Dr. Will Durant stated, the great experiment in individual freedom, which only began in 1776, “may yet be defeated by the high birth rate of unwilling or indoctrinated ignorance.”
Will the Biden Commission—created “to study the structural changes to the Supreme Court”— motivate the sitting Justices to exercise their constitutional authority, under Article III of the Constitution, to protect the individual rights of all Americans against encroachments by Congress, the President, and all agencies of the U.S. and State governments?
Dum Spiro Spero—While I breathe, I hope.
Slainte mhath,
Robert G. Beard Jr., C.P.A., C.G.M.A., J.D., LL.M.
1,725 Words
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