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‘If Men Were Angels, No Government Would Be Necessary.’ – James Madison

| Opinion | July 12, 2018

by Stephen Smith

No group of individuals is imbued with more responsibility to protect and defend the Constitution than the members of SCOTUS.

With the battle for the confirmation of the next Justice for the Supreme Court under way, we would do well to remember these words from some of the framers and signers of the Constitution of the United States of America.

“If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” – Alexander Hamilton

“The legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” – John Adams

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“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid …” – Alexander Hamilton

There it is. The purpose of our government as realized through the application of the Constitution is to protect individual rights such as life, liberty and the pursuit of happiness, with a limited government. The individual branches of government, (Legislative, Executive and Judicial) are clearly defined, and one branch should not usurp the powers of another. De-facto legislating from the bench is a no-no. Social change issues may be enacted by the legislature. Our founding documents define what government may not do to the people, and not what it must do for the people.

Divergence from this basic concept defines the real difference between Constitutionally-oriented Republicans and the modern Progressive Leftist Democrats.

Republicans will look for a Justice who is an originalist and uses the founding documents, their original intent as discussed and argued by our founders as the referential source for their decisions. Originalist judges will not legislate or engage in executive edicts. They will honor the separation of powers. They are not there to enact social change – that is the job of the legislature. They must determine if a law is constitutional by a fair reading of the text and not how they feel about the efficacy of the policy or those enforcing it. They are the keepers of the Constitution. They have one standard, and it is to look at each case independently and make judgment based on whether it holds up to Constitutional muster. They know that if they do not adhere to these ideas, we become not a nation by the rule of law, but by the ever-changing whims of men.

This may sound harsh, but the Progressive Leftist Democrats have largely rejected the principles behind the Constitution, except where it may be convenient. Senator Chuck Schumer has called Justices who seek to follow the Constitution in making their decisions, far right-wing extremists. Progressives believe the courts should be the instrument of social change, especially when they have failed to do so in the legislature. The results are that by legislating from the bench we have laws and policies enacted and enforced by Justices who do not answer to the people. The feelings of the Justice often take precedent over the law as written. They are looking for Justices who conform to the progressive agenda and beliefs. Progressivism is becoming the new religion that cannot tolerate decent. Once progressive Judges are seated, a firm reliance on Stare Decisis (precedent) is promoted to avoid the need to look to the Constitution for guidance.

I would suggest a reading of the travel ban decision, both majority and minority, to see how these ideas play out in real life. https://www.npr.org/2018/06/26/623525875/read-supr,eme-court-decision-upholding-trumps-travel-ban.

The battle for the next member of SCOTUS has been engaged. To quote Shakespeare, “Cry ‘Havoc!’, and let slip the dogs of war.” I am rooting for the Constitution.

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