American justice gone awry
There is a great conflict among many Americans today over the recent Supreme Court rulings to deny women the constitutional right for abortion and the new restriction of limitations by government on the right to carry firearms openly. Indeed, the Fourth of July is a good time for American citizens to reconsider the proposed liberties of the United States of America. Today the country must cope with controversies as compelling as issues that ignited the Civil War. However, social developments since the 1860s have created new issues.
Americans still prefer a leader who gives the appearance of being strong. Fortunately, George Washington established the precedent of the nation’s warlord peacefully handing over his presidential authority to his successor. A democratic principle evoked from that act that “no man is above the law.” Much of today’s problems result from a refutation of that notion.
Fortunately, the Founding Fathers established a constitutional structure that created a tripartite government: Congress, executive and judiciary. Congress had two major government powers. It controlled the nation’s purse and it proposed all federal laws. The president then approved or rejected those proposed federal laws; the president implemented and managed all federal actions and programs; and the president nominated prospective members of the U.S. Supreme Court. As chief of state the president has extraordinary authority.
In the democracy conceived by the Founding Fathers, the conduct of public officials was to be primarily monitored by voters. The president would face election every four years. A period of four years was considered to be sufficient time to earn the confidence of the electorate or find another line of work.
Members of the House of Representatives came up for election every two years. Undoubtedly, the thinking was that the smaller congressional districts could be served in a shorter time. However, the term for U.S. senator is six years. The Senate was conceived to be a body of wise men who should stay together for a longer period of time.
The Founding Fathers expected that there would be political wrangling among congressmen and the president. In order to avoid that bickering in the U.S. Supreme Court, appointments were for life. So the selection process for the Supreme Court had to be special. The president would nominate a candidate who would then be subjected to the advice and consent of the Senate. The expectation was that the Supreme Court decisions would be above petty party politics.
In the early years of the republic there was insufficient legal precedent to serve as the foundation for legal rulings. Judges could not properly become pseudo congressmen and create the law. Some judges created the concept of “originalism,” that required a prior practice or holding in law.
This sometimes led to bizarre results. For example, courts have stretched the language of the Second Amendment. “The right of the people to keep and bear Arms, shall not be infringed” does not take into account the nature of the firearms. The Gatling gun that could fire at a machine gun rate was not invented until 1861. The Founding Fathers were clearly talking about muzzle loaders back in 1786. Failure to consider the changing technology produces the wrong conclusion.
Similarly, the suggestion that the Constitution does not encompass the right to personal privacy is not persuasive. Marital intimacies are so commonly private, men who drafted the Constitution found it unnecessary to specify the obvious. The 9th Amendment states, “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
In short, the people did not want to belabor the obvious. Clearly there is a constitutional right of privacy that supports a woman’s right to an abortion.
Unfortunately, the present Supreme Court has decided to legislate.