Confronting The Issues of America: Commentary, Opinion, and Impressions

Justices to Citizens: “We’re the Bosses Baby!”

A particular Supreme Court decision is good to the extent that it is properly and substantively grounded in sound jurisprudence. Sound jurisprudence is recognizable by its reliance on and allegiance to the pertinent legal history and exploration of the directly related legal ancestry of the question of law at hand. In addition, good decisions must arise from cases that have arrived at the Court by successfully negotiating the gauntlet of mootness, ripeness, jurisdiction, and standing. Any case that cannot, in good conscience, overcome these obstacles is insufficient for Court consideration. Also, good decisions must be of constitutional substance, which is to say that they must pose a legitimate question of constitutional meaning. Finally, a good decision is one that is restricted, for the most part, to resolving only those issues raised by the legitimately aggrieved parties and the facts of the case. To the extent that a decision lacks any of these qualities it is no so good.

The Burger Court is responsible for the jurisprudential travesty of Roe and Doe and for institutionalizing constitution-ending modern judicial review. Rather than turning away from the radical jurisprudential innovations of the Warren Court, the Burger Court continued to advance the avant garde anti-rule-of-law methodology of that Court. The Burger Court therefore transforms Warren’s modern judicial review from a controversial and highly questionable innovation into a permanent and conventional practice. Looking back, I think the early Burger Court was a watershed moment in American constitutional law. It was the moment that the Anglo-American rule-of-law began its long slow demise in earnest, although the real beginning can be traced to the days of FDR and his rape of American jurisprudence.

Roe v Wade and Doe v Dalton, two companion cases decided by the early Burger Court stand, in my view, as among the worst decisions of the last forty years, perhaps the second worst decision ever with Dred Scott and Wickard v Filburn being among the worst. It is not only the absence of jurisprudential grounding that make Roe and Doe decisions wrongly decided but also their powerful influence on institutionalizing modern judge-centered review and their crippling Constitution-centered review.

Before proceeding to explain why I come to this conclusion, I would like to say that I speak for neither the pro-life forces nor pro-choice forces. From a moral standpoint, one can make a claim that the welfare of a woman justifies removal of a thimble of human tissue or that preventing the derailing of the life of a young woman outweighs at least some of the prohibitions on abortion. On the other hand, one can argue (as I would be inclined to do)  on behalf of the in vitro life however that life is defined. Both moral arguments can be, if appropriately developed and properly predicated be compelling, complex, and perhaps unanswerable in the absolute sense.

My criticisms of Roe and Doe fall into two categories: 1) The decisions derive from insufficient legal reasoning and the majority’s improper reliance on questionable social science and; 2) The cases should not have, under the normal standards of jurisprudence, ever reached the Court. Let me begin with my objections to these cases ever reaching the Court for review.

First, the plaintiff Roe, seeks to be given a judicial remedy to her dilemma. Her legal dilemma is that she is pregnant and wants to abort but cannot do so because Texas law tightly regulates abortions so much so that it appears that Ms. Roe will not be allowed to abort. Prior to the Court’s granting cert, even before the 5th Circuit Appellate Court decided to hear the case, the plaintiff gave birth. This mooted the case and removed the plaintiffs standing for redress. Long established standards of jurisprudence, if followed, would deny standing. The Court simply ignored the standing obstacle and called the case into its jurisdiction. This is one aspect of the decision that, in my view of law, makes it “bad”.

Second, the plaintiff while before the lower court (Fifth Circuit of Texas), argued for but one remedy for her long mooted dilemma of her unwanted pregnancy; a holding that a fundamental constitutional right, heretofore not found, exists for a woman to pursue and receive an abortion. But the plaintiff had no standing and her legal dilemma had been mooted. Under these legal and factual circumstances, one must ask, “under what legal authority does the Fifth Circuit Court convene a tribunal to decide a question of fundamental constitutional rights”. The answer is that traditional fully-evolved jurisprudence gave the Court no such authority. And what legal doctrine does the Supreme Court use to grant cert to such a legally unfounded appeal? The Court decided to ignore this long standing jurisprudence and rely on a statute allowing direct appeal to the Supreme Court passed a mere eleven months earlier. In my view, both courts have not only erred but also acted to legislate their own will adding another reason the decision is “bad”.

Third, there is no trial court transcript or evidence to review. There is no transcript or evidence to review because there was never any trial. Clarke Forsyth, an appellate attorney and recognized expert on Roe writes, “Trials and hearings are suppose to thoroughly weigh the evidence and determine the truthfulness and accuracy of claims of the parties. This is all the more important when a case involves constitutional questions and has sweeping implications for the people and the public health in all fifty states. Roe and Doe were conducted without hearing witnesses subject to cross-examination. Both district courts in Texas and Georgia simply decided that facts don’t matter and merely held a two hour-long oral arguments, in which much of the time was taken up with procedural or jurisdictional matters.” Forsythe poses a most troubling question[1]:

There were numerous abortion cases in the courts in 1970 and 1971 and many more in 1972. The Justices could have selected [from among these] cases with a factual record. At the time the Justices chose Roe and Doe, at least seven other abortion cases were pending at the Supreme Court. Remarkably the Justices choose not one but two abortion cases without any factual record. Why?

Thus, Roe and Doe became the case without a record. Forsythe among others, points out that in selecting Roe and Doe the Justice ignored several long-standing principles for good decision-making on constitutional issues:

• Medical and statistical assertions that are not in the trial record but relied on by the judges – what lawyers call “judicial notice” – should be limited to indisputable fact.
• Courts should not decide constitutional questions on an incomplete record.
• Courts should not formulate rules of constitutional law broader than required by the facts.
• Courts should not decide constitutional questions unless the question is presented with the clarity needed for effective adjudication.
• Courts will not anticipate the decision of a constitutional nature

It was not as if the Justices were not warned that there was no factual record. In the first Doe arguments Georgia’s Attorney General, Dorothy Beasely, made the lack of a factual record point no less than five times. [2] These problems were compelling and suggest that the Court should have reached no decision, or sent the cases back for trial, or taken other cases with a trial record, or at least reached a narrow decision. Instead, the Justices issued one of the broadest decisions possible. That there was absolutely no record in this transformative case involving complex medical issues, deep rooted cultural norms, and substantive religious beliefs is another reason the decision is “bad”.

Fourth, the case appears to have been granted cert and docketed under confusion of what, if any, constitutional issues were involved. Justice Blackmum told the story that Justice Stewart urged a subcommittee of Justices to hear Roe and Doe under the “misapprehension” that they involved nothing more than an application of Younger and Harris which was to be a matter on procedure not constitutional substance. This apparent confusion among the Justices as to fundamental nature of the review is another reason the decision is “bad”.

Fifth, the Roe and Doe decision rest in part on suspect, and perhaps unethical conduct, on the part of the some of the litigants and at least one Circuit Court Judge. Judge Sara Hughes, the Fifth Circuit Judge heading the panel that first heard Roe, was active in the Dallas feminist community. She was in fact an abortion-rights activist eager to eliminate the abortion laws.[3] She lobbied the Texas legislature to repeal the Texas abortion law.[4] Judge Hughes admitted to the plaintiff’s attorney that she had her mind made up before the Circuit Court hearing.[5]

[1] Clarke D. Forsythe, Abuse of Discretion: The Inside Story of Roe v Wade, p. 92

[2] Ibid p. 97

[3] Ibid p. 90

[4] Ibid p. 92

[5] David J. Garrow, Liberty and Sexuality, p. 440

“Shall we live in a Civil Society or a Statist Society?” Insufficient reflection is given to this question. When I was young and deciding whether I would prefer to face a life-long journey through civil society on the one hand or through statist society on the other, I decided to study the matter.

Members of a civil society and the groups and factions into which they divide themselves are free and at liberty to execute transactions among themselves. Each citizen may, at will, contract with any other citizen for personal commerce, engagement, and action. The government and its officials are not in any way involved in interactions between citizens. The interactions are direct, intimate, and personal. Civil society and its members conduct each of life’s transactions without government present as intermediary. Transactions are subject to a set of rules to which each member is bound. Honoring one’s transaction in accordance with the rules is a requisite for continued membership in civil society. Each party is duty-bound to live up to his side of each and every agreement. Government is an application running in the background to be called upon only if one party alleges another has broken the rules of transactional engagement. Then and only then does government become inserted into a transaction and even then it is bound, narrowed, and limited by the strict rule of law and constitutional limitation in its pursuit to settle the dispute and apply the rules.

Civil society’s fundamental reliance on direct personal transactions as the authoritative unit of social exchange requires private property rights, rule of law, and a well-developed system of free market enterprise in order to effectively function. The theory is that millions of free market transactions conducted within a few well-established rules will effectively and efficiently set prices and allocate resources. All personal transactions are agreement-constricted. The key to understanding the essence of a civil society is that government runs in the background leaving citizens alone until such time as one them invokes the government to resolve a dispute.

 Statist Society

 Members of the statist society, when they enter into individual transactions do so with the government immediately present in the transaction as a third party . Not only a third party, but a superior third party with sole authority to  dictate the terms and language of the agreement. No citizen enters into a transaction, contract, or simple engagement unless some government intermediary is there to dictate, evaluate and approve the transaction in advance. The state’s elite experts act as the legal “parent” on behalf of the citizens. At all times, each transaction is subject to direct government oversight, intervention, and review.

A civil society can be differentiated from a statist society by the unencumbered freedom of its members to forge relationships, agreements, and transactions so long as the basic agreed upon rules are observed. Understanding the central political debate of twenty-first century America requires understanding this essence of civil society. Pure civil society sits at one end of a long spectrum staring to the other distant end where pure statist society sits. The essential difference between a civil society and a statist society is that in a civil society transactions are entered into exclusively by the private citizens who are members of the society whereas a statist society injects an external party, i.e., the state bureaucrat to oversee, direct, and give final approval or disapproval.

The choice between civil or statist society is not an all or nothing proposition. The continuum between a purely  civil society and a purely statist society offers a mix. The question is where on the continuum should American society rest. While the promises and premises of these two societal designs are certainly subject to challenge, examination, and critique, an acute awareness that they exist and are vastly different societies is a prerequisite for reasonable evaluation of political design choices. Statist schemes range from bootjack Stalinist means-of-production communism to American progressive welfarism. Civil schemes range from city-state pure democracy to constitutional republicanism. Before raising our voice in the American political debate, we should first deeply contemplate the possibilities of each of these two very different ways of being and come to a personal choice as to which best serves the body politic.

The problem with the statist society is that the elites who run the state invariably become all-powerful, corrupt, and self-serving. Eventually, they become tyrannical and abuse or destroy any citizen that dares to  speak out against anything  the state does or says. Today the American Left Regime has fully implemented a statist society in the United Sates by infiltrating every institution and corrupting it.  Ultimately the society collapses into a horror show of chaos, cruelty, and debauchery. This is where America is today.

Supreme Court of the United States
 1 First Street, NE
 Washington, DC 20543

As a non-lawyer and mere work-a-day American I share my thoughts and feelings on the Supreme Court’s decision to reject the election fraud case filed by the State of Texas

Dear Justices:

For 80 years, the august High Court has been slowly but steadily devolving from its beginning as an Anglo-American rule-of-law institution populated with respected Justices and heroes of the Republic into a hog pit of fancy-robbed self-dealing slick politicians.  No awe-inspiring pillars in front of the Supreme Court building can change this essential truth.  As it stands at this moment, I, and I believe a hundred million other Americans, are of the opinion that none of you are worthy of the title Justice.

On Friday, you announced to the world that that you have unanimously joined the Great Cover Up of  the 2020 Presidential Election Fraud. Because of your abdication of duty, we tiny average Americans will now live, from this day forward, in an authoritarian hell under an illegitimate regime.  The only price you will pay for helping bring this about is that the long arm of History will mark forever that at hour of your calling, you refused the call and allowed the American Republic to be undone by evil forces.

Here Are The Facts That Most Americans Know To Be True

1. The state of Texas has standing. The evidence and the facts of this are overwhelming. Your “arguments” for denying standing are disingenuous and knowingly false. The arguments are little more than law clerk drivel. The fact that you think you have given yourselves political cover for abandoning the nation in its most frightening hour of desperation should embarrass you, not please you.

2. The Court has the constitutional and moral responsibility to hear cases that fall under its original jurisdiction. You are required to take the Texas case and give it a full due process hearing on the merits with all evidence presented, weighed and objectively judged in front of the public eye. The case is also, by proxy, a vehicle for all Americans who are seeking redress from having, what they believe is their legitimately elected President being unlawfully and unconstitutionally denied the office that the evidence strongly suggests he won.

3. You must well know that compelling federal questions are at the heart of this case. You must well know that there are constitutional issues of grave historical significance embedded throughout the case. No phony made-up legal argument by career deep state bureaucrats masquerading as Justices can make this fact untrue or unknown by the body politic.

4. The fact-supported allegations of the many hundreds of incidents of fraud in the election scream out for this hearing on the merits. The scream is from a hundred million American citizens seeking to be heard. Screams that you have so willingly smothered.

5. Evidence and facts overwhelmingly point to unimaginable voting violations, mass-scale election irregularities, and a concerted effort to falsify the results of the 2020 Presidential election. The stunning statistical anomalies alone compel a comprehensive long-term independent forensic investigation into the evidence and allegations of fraud followed by a full due process hearing before the world, a due process that the Court, of all institutions, is working so diligently to suppress.

6. Indications and signs of criminal manipulation by the Chines Communist Party in the 2020 elections are rampant and our national security is very likely being put in grave danger. There is ample evidence that the regime that is currently trying to seize executive and legislative power by means of this election fraud may well be working with the CCP. The issues embedded in this case are not only federal and constitutional – they are existential.

            The evidence and facts shout that the Republic will be taking its last breath of life in 2020.  Is this true or not? Surely, a full due process hearing of the evidence and facts is a moral imperative. As you put your head on your pillow tonight remember that as you sleep history is writing the story of what you do. 

            In closing let me say that I am aware of the disrespect I have shown in places throughout this letter. I am pained to be disrespectful to an institution that until very recently, I revered and respected with my entire being.  Despite the frequent abandonment of Anglo-American jurisprudence over the last 80 years and the ever continuing rise of using the Court for implementation of personal cultural desires rather than for keeping faith with the rule of law, I never lost faith in the ultimate commitment of the Supreme Court, as an institution, to the Constitution and the Republic– until Friday.

Sincerely,

Brent Perkins

San Diego, Ca.

For the last thirty years, our politicians, the media, and the academy have been preaching the Globalism Gospel. We are being told, and continue to be told,  that Globalism is great for the United States and all its citizens. All we citizens need do is sit back, not ask questions, and let the new intellectually and culturally superior Global elites lead us to their Brave New World. The truth is that Globalism, as actually practiced by these elites, has been a fraud from the beginning. Their Globalism was and is the most corrupt enterprise and the largest theft in mankind’s history. The victim of this crime is the United States of America.

In the name of free trade and foreign aid, the globalist citizens of the world have gutted the wealth of the United States middle class, have raided the United States Treasury,  have destroyed large swaths of American manufacturing infrastructure, and eviscerated millions of American jobs. This theft has been made possible by co-opting the United States Congress, the Office of The President, and the Members of the Supreme Court.  The citizens of the Constitutional Republic were sold out by mass corruption centered in Washington D.C. The evidence supporting these assertions is embedded in the economic metrics of the last twenty years. Our major institutions, succumbing to the seductive rewards of Globalist bribery, have  been deployed to deconstruct the foundation of the American Constitutional Republic. The new elite have deployed our institutions toward this end because  the  norms and operating  requirements of the  American Republic stand in the way of unfettered rule by these new citizens of the world. 

The academy was the first to join in the corruption. University campuses have largely been reduced to enclaves of  globalist cult members. State control of the academy is iron clad.  Scholarship, reason, and free inquiry have vanished from the academy and been replaced with totalitarian thought control. For one to be a professor in today’s academy one must profess fanatical allegiance to postmodern tyranny not the pursuit of truth. 

 The media has also been almost entirely co-opted by the globalist raiders. Media talking heads seem to be nothing more than paid propagandizers. Their daily Kabuki theater have seduced large numbers of American citizens into a sleepy acceptance of the new internationalist world order. These talking heads now compete with one another to see which one can conjure forth the most brazen and bizarre lies in the effort to replace the American constitutional republic with postmodern globalism.  

Public education, which is to say the operatives in government-run local schools, have now devolved almost entirely into mere machines for conveying the propaganda of the new postmodern world elites. The evidence for this devolution is in the new curricula  that eliminated, and now  forbids teaching U.S. history from the perspective of its founders and original practitioners. The curricula now is comprised solely of postmodern anti-American jibberish.

The federal bureaucracy has transmogrified from a small citizen-centered operation for the  for common good into a monsterous deep-state behemoth that immediately devours and destroys anyone that opposes the jack-booted march of new global elite. Centered in the Department of Justice, The FBI, and the IRS, the new authoritarian administrative state casts its shadow of terror over the land. It is the deep state operating in the bowels of  the federal government that now, more than any other phenomenon, prevents the operation of the citizen-centered government embedded in the Federalist Papers.   In fact, one of the objectives of the deep state is to eradicate the memory of the Federal Papers and erase the  history of American political development from Locke and Montesquieu through Madison, Jefferson, and Hamilton.  

Thus, it is, that all our major institutions have slowly been infiltrated and are now largely directed by globalist elites.  These elites are citizens of the world with allegiance to no sovereign nation. They command massive armies of corrupt politicians, sophomoric talking heads, and propagandizing professors. Our institutions have become lie-infested cesspools of corruption and disinformation. 

Who are the Globalist, exactly? The most basic answer to this somewhat complicated question is that they are multi-national corporations and the people who own and manage them.  These cross-borders commercial giants and the people in them have accumulated such size, scale, wealth, and political influence that they have overwhelmed the sovereign states of the world. These corporate behemoths are bringing the sovereign state world-order to an end. They are brining the three-hundred-year political paradigm of sovereign states to its end. Sovereign states are now empty vessels in which social and cultural values are allocated by hideously corrupt institutions whose sole purpose is to serve the continuing globalist theft of American wealth and power.  

Evidence now supports the proposition that the new overarching governing order is not the sovereign state.  Rather it is the multi-national corporate collectives that govern markets not states, that rule over consumers rather than govern citizens. We are now living under an evolving new political system in which sovereign states and their political representatives have been fully co-opted. Most (but not all) of our country’s leaders are now mere puppets responding to the bribes and largesse of their international commercial overlords. These would be Jeff Bezos, Bill Gates, George Soros, and hundreds of other international citizens of the world. 

The Target of the Globalist Theft: By the 1960’s the economic system of the United States had grown into the wealthiest most dynamic and most participatory economic system in recorded history. By most any rational economic measure, the sovereign state of America was an economic miracle.  The metrics of gross national product, personal income, personal wealth, manufacturing production, job growth, technical innovation, upward economic mobility, employment levels, financial market stability, etc., placed history’s most vibrant economy squarely within and under the control of the United States, its political institutions, and its citizens. Of course, the problems of political competition, minor league corruption, and existence of a struggling class have always been with us. But the economic system that operated within the confines of the United States borders was by any measure an unprecedented success for capitalism. And it was ours. It belonged to us, the citizens of the United States of America until our leaders handed it all over to globalist thieves.  

Launching the Globalist Robbery: On January 1, 1994 the North American Free Trade Agreement went into effect launching what was to become known popularly as globalism.  NAFTA had been in the making for years with multi-national lobbyist heaping massive donations, bribes, and corrupt business deals to member of Congress, Senators, congressional staffers, and their families, and bureaucrats in the executive branch of the U.S. government.  These same lobbyist sent massive bribes in the form of grants, subsidies, campaign contributions, lucrative jobs, stock deals,  and other largess to politicians, media hacks, members of the academy and think tanks around the world. 

The result has been that within twenty years, the management teams and majority stockholders of massive multi-national corporations had replaced sovereign governments as the authoritative allocators of values. The multi-national behemoths now stand alone at the top of the political food chain. By 2016, nothing could stop the all-powerful  juggernaut of the new global elites. 

Enter Donald J. Trump: Donald Trump declared his candidacy for President of the United States and won, thereby launching the Trump Movement. The Trump Movement became the zeitgeist of the gasping American middle class and the last life-line for the dwindling number of American constitutionalist.  Donald Trump, wealthy, independent, fearless, and audacious (and yes, a little buffoonish) became the first and only real threat to ever challenge the new elite global ruling class.   And the global elites and multi-national corporate community wasted no time in launching their new objective: The utter destruction of Donald Trump and his popular movement. 

The question that hangs above the United States today is whether or not a majority of the American people will collectively join forces to re-establish the Constitutional Republic and re-assert American economic power or whether they will acquiesce to the threats, intimidation, and violence of the new globalist elites and their paid minions in Congress, the academy, and the media.  

European settlers (and they were virtually all Europeans) who sailed to the Americas beginning in the 1500’s were, when it came to their religion, virtually exclusively Christian. Not Atheist, not Muslim, not Hari Krishnas, not New Age Crystal worshippers: They were Christians. They were Christians of all stripes. Catholics, Protestants, Quakers, Puritans, Mennonites, Calvinists, and other assorted sects, some radical, some more traditional and sedate. But, in any event they were beyond debate Christians. It is only after about 1820 or so that the Christian monopoly on New World settlement begins, in some small degree, to lessen. By the twentieth century, United States’ Christian society had begun to be slightly diluted by non-Christian immigration. By century’s end, we saw the appearance of secularism in younger generations.

Small groups of English arrivals in what became known as New England came to build their religious settlements. They came to escape the Church of England and practice Catholicism (which was outlawed in England) or to practice some more radical form of Protestantism (which was frowned on by the more authoritarian and hidebound Protestant Church of England). Each different group came to the shores of New England for the freedom to practice their unique brand of religion and ensure that those who came with them and came after them were completely and wholly free to practice the exact same brand of Christianity to the letter without exception. Freedom to these groups meant freedom from punishment by the English Monarchy and Church of England. It did not mean the individual freedom for their members to do whatever they chose religiously. When it came to religious behavior these communities were quite un-free.

The Puritan dream of impermeable communities of dogmatic purity with which each early New England settlement began was to soon be overwhelmed by the reality of mass migration across the Atlantic mostly from England. These second-wavers were Christians too. There were some few, of course, for whom religion never entered consciousness one way or the other but even these would claim to be Christian.

The settlements in the South, as opposed to New England, were founded and created more with profit and business in mind than enclaves of religious purity. Few settlement communities in the south were set up as new religious societies. But the settlements in the south were nevertheless foundationally and socially Christian in their religious practice. And that Christian practice was an important part of their lives. To be sure contradictions abounded as they do in any society. There was slavery. There was chicanery, fraud, and psychopaths. But yes, the Europeans that settled in the New World between 1600 and 1800 were most decidedly Christians of some sort.

Were the Founding Fathers Christians?

The Founding Fathers are generally considered to be those men who signed the Declaration of Independence.  Fifty-six men signed, so we have fifty-six founding fathers. Most extraordinarily intelligent and were also educated and learned men. Each had a publicly known and historically recorded religious and church affiliation. Here is the list:

Religious Affiliation of the Signers of the Declaration of Independence

Religious Affiliations:

Episcopalian/Anglican
32 of the signers = 57.1%

Congregationalist
13 of the signers = 23.2%

Presbyterian
12 of the signers =  21.4%

Quaker
2 of the signers = 3.6%

Unitarian or Universalist
2 of the signers = 3.6%

Catholic
1 of the signers = 1.8%

TOTAL
56 total signers = 100%

Name of Signer his state and religious affiliation

Charles Carroll,   Maryland,   Catholic
Samuel Huntington,   Connecticut,  Congregationalist
Roger Sherman,  Connecticut, Congregationalist
William Williams,   Connecticut  Congregationalist
Oliver Wolcott,  Connecticut,  Congregationalist
Lyman Hall,  Georgia,  Congregationalist
Samuel Adams,  Massachusetts,  Congregationalist
John Hancock,  Massachusetts,  Congregationalist
Josiah Bartlett,  New Hampshire,  Congregationalist
William Whipple,  New Hampshire,   Congregationalist
William Ellery, Rhode Island,  Congregationalist
John Adams, Massachusetts,  Congregationalist; Unitarian
Robert Treat Paine,  Massachusetts,  Congregationalist; Unitarian
George Walton,  Georgia,  Episcopalian
John Penn,  North Carolina, Episcopalian
George Ross,  Pennsylvania,  Episcopalian
Thomas Heyward Jr.,   South Carolina,   Episcopalian
Thomas Lynch Jr.,  South Carolina,  Episcopalian
Arthur Middleton,  South Carolina,  Episcopalian
Edward Rutledge,  South Carolina,  Episcopalian
Francis Lightfoot Lee, Virginia,  Episcopalian
Richard Henry Lee, Virginia,  Episcopalian
George Read,  Delaware,  Episcopalian
Caesar Rodney,  Delaware,  Episcopalian
Samuel Chase,  Maryland, Episcopalian
William Paca, Maryland,  Episcopalian
Thomas Stone,  Maryland,  Episcopalian
Elbridge Gerry, Massachusetts,  Episcopalian
Francis Hopkinson,  New Jersey,  Episcopalian
Francis Lewis,  New York,  Episcopalian
Lewis Morris,  New York,  Episcopalian
William Hooper,  North Carolina,  Episcopalian
Robert Morris,  Pennsylvania,  Episcopalian
John Morton,  Pennsylvania, Episcopalian
Stephen Hopkins,  Rhode Island, Episcopalian
Carter Braxton, Virginia,  Episcopalian
Benjamin Harrison,  Virginia,  Episcopalian
Thomas Nelson Jr.,  Virginia,  Episcopalian
George Wythe, Virginia,  Episcopalian
Thomas Jefferson, Virginia,  Episcopalian (Deist)
Benjamin Franklin,  Pennsylvania,  Episcopalian (Deist)
Button Gwinnett, Georgia,  Episcopalian; Congregationalist
James Wilson, Pennsylvania Episcopalian; Presbyterian
Joseph Hewes, North Carolina,  Quaker, Episcopalian
George Clymer,  Pennsylvania,  Quaker, Episcopalian
Thomas McKean,  Delaware,  Presbyterian
Matthew Thornton,  New Hampshire,  Presbyterian
Abraham Clark,  New Jersey,  Presbyterian
John Hart,  New Jersey,  Presbyterian
Richard Stockton,  New Jersey,  Presbyterian
John Witherspoon,  New Jersey,  Presbyterian
William Floyd,  New York.  Presbyterian
Philip Livingston,  New York,  Presbyterian
James Smith,  Pennsylvania,  Presbyterian
George Taylor,  Pennsylvania, Presbyterian
Benjamin Rush,  Pennsylvania,  Presbyterian

Note that Franklin and Jefferson were both members of the Episcopalian Church as well as Deists. This fact, at least in my view, demonstrates that both Franklin and Jefferson were believers in God and had warm relationships with Christians and Christianity, not atheists as some progressives assert. Franklin beseeched his fellow constitutional conventioneers to begin each session with the “prayerful piety that inspired the revolution.” Hardly the words of a postmodern anti-Christian. The current effort of postmodernist to paint Franklin and Jefferson as hostile to Christianity seems to me clearly laughable. I suspect that Judea-Christian values permeated Jefferson’s and Franklin’s world view. I further suspect that like many intelligent people educated in the post Enlightenment post Newtonian world, they had difficulty with the Christian requirement for belief in miracles such as the virgin birth, the resurrection, and biblical miracles. However, anti Christians they were not. As men of letters and men who read history in-depth, they comprehended Christianity at several levels – not just at the literal level.

Was the United States Founded as a Christian Nation?

No, it was not. The United States was a decidedly Christian society founded as a Constitutional Republic. The American Constitutional Republic, as brought to life by the Founding Fathers, was a brilliant and enlightened modification of Classical Greek republicanism. Our Christian and Deist Founding Fathers placed, along with the creation of a taxing enabled Central Government, three inviolable principles in the very soul of our Republic: 1) A Powers Limited Federal Government; 2) Fiscal Prudence on the Part of the Federal Government and; 3) The Rule of Law to be strictly adhered to by the Federal Government. One can see that there is not a lot remaining of these three constitutional principles today. Between the profoundly misinterpreted 14th amendment which eviscerated the power of the states, modern day Federal “Courts” and contemporary politics, our Constitutional Republic has been almost wholly co-opted by mobster style progressives.

Was the United States Found as a Nation Under God?

Yes, unequivocally. The Founding Fathers say in the Declaration of Independence “…to which the Laws of Nature and of Natures God”. Then go on to say “…endowed by their Creator”.  Thus, it is irrefutable fact that the United States was, with deliberation and intent, founded as a Nation under God albeit a more Deist and “natural” God than a purely Christian God.

Thomas Jefferson words are those of a Deist. Which is to say a believer in God. The Declaration of Independence and the Constitution that followed it are clear that the essential rights to life, liberty, and pursuit of happiness of all Americans flow from our Creator and never at anytime from politicians and bureaucrats. This principle too has been shredded in the grinding-bin of postmodernism and mobster progressivism.

In closing, I will opine that Jefferson, great Deist and Christian Church member that he was, used the word “Happiness” in the Aristotelian Greek sense.  Happiness in the Greek sense means the sense of accomplishment and personal satisfaction that results from a virtuous life of self-discipline, skills acquisition, achievement of professional expertise, and adding value to the community. Jefferson did not mean everyone had the right to “feel good”. This historical fact too has been lost to the storms of postmodernism.

Brent Perkins August 21, 2011 – Published in The Voice of Commonsense

The 2016 presidential election was only partially about the personality zeitgeists surrounding Mr. Trump and Ms. Clinton. The election was, at its heart, about returning American  government to its more traditional approach to governance. Donald Trump’s victory signals a giant step backward for progressivism’s long jack-booted march over America’s constitutional republic.  Most of the more radical elements of the authoritarian administrative state seem to have been rejected by the American voter. Mr. Obama, while cynically  and destructively going back on his campaign promise to bring Americans together and build a post racial society, did indeed keep his promise to try to radically transform America’s government and culture. The radical transformations that Barack Obama and his administration sought to force upon the country through executive orders, agency rule-making, and condescending rhetoric were, in the end, not acceptable to the majority of American people.

The election seems to have also repudiated Barack Obama’s and Hillary Clinton’s effort to radically divide the nation along racial lines and build tension between whites and blacks. Slicing and dicing the country into warring factions then leveraging those divisions for political advantage has been a successful political strategy for post 60’s Democrats for nearly fifty years. The end result has been to weaken the nation, negate racial advances, and pit American against American. Then a funny thing happened on the way to the polls in 2016.

The stoking of racial animosity turned out to be far less politically effective than in the past.  This is probably because the reality that gave the slice-and-dice strategy its substance and credibility no longer exists. The Civil Rights Act, the Voting Rights Act, thirty-years of Affirmative Action and the heart-felt efforts of the vast majority of Americans, both right and left, both black and white, have gone a long way toward healing the nation’s race wound. The new 21st century Democratic Party and the American Left seek, it seems to me, to pull the scab off the healing wound and return our society to a state of racial tension and distrust. Democrats long ago decided that the reality that black and whites have come together in common acceptance and respect cannot be allowed to stand. That would mean that the Democratic Party would have to compete on a policy level and policy-based political competition would mean almost certain and total defeat for the Party. So, their divisiveness, race baiting and anger stoking continues unabated.

Free though we are now to speak admiringly about our country and its heritage, as unifying as our new President may try to be, the divisive hit-machine of the far Left continues to disrupt our civic peace. Our national institutions, from government to the academy to the media are still densely populated with angry postmodern progressives intent on upending the institutions embedded in traditional constitutional America. Democrats and the Left describe the Constitution not as fundamental law but as mere aspirational suggestions. Suggestions that are not binding on those who govern us. In this, they are the quintessential postmodern anti-Americans.

The Left’s street operatives and community organizers are in full bat-swinging mode. One need merely tune into the news (except of course ABC, NBC, CNN or CBS) to see the far Left and the radical factions of the Democratic Party going after our civil society bat-blow by bat-blow. This is evidence that leads rational people to conclude that the American Left and many in the  Democratic Party intend to practice insurrection and violence, not democracy. Simply take a look at the streets today and listen to the character-assassinating rhetoric of the Left for the evidence. This angry refusal to respect democracy and accept the results of the election is led and inflamed by mainstream Leftist institutions, not just by a few street thugs.

One example of Left’s continuing institutional endorsement of civil violence is the reaction of the mainstream academy across the country. Several university administrators have declared an all-campus red-alert emergency as a result of the American people having elected Donald Trump President. One Yale economics professor made final exams optional given the severe emotional distress students are supposedly suffering as a result of the decision by the American voters. The University of Michigan has offered Play Dough and coloring books to distract infantile students from the results of the election. The President of Claremont Graduate University has, in an open email to all students, declared that the “results of the election” has created a level of dysfunctional emotion on campus so severe that special therapeutic intervention is being offered to character-weakened students who apparently can’t respond responsibly to the election results. The CGU Monsour Counseling & Psychological Centre has this week offered special on-the-spot counseling to students. Why? The Centre said in a recent email to all students they were offering the special counseling “because of the outcome of the election.” One might note that the Monsour Centre did not announce any special on-the-spot counseling services to the students who were for months taunted and ridiculed for supporting Mr. Trump. Monsour services seem to be for Hillary supporters but distinctly not for Donald supporters. Monsour’s compassionate therapeutic outreach, while probably well-intended in a narrow-minded sort of way, appears to be  politically selective. All in all, this reaction by the academy seems to me to be a spectacle of clowns.

One might ask if citing the results and outcome of the election as setting-off a campus-wide emotional crisis and portraying a Republican victory as a tragedy equal to the end of humanity isn’t tantamount to the academy using university resources to publicly support one political party over the other. The answer is, of course it is. Large segments of the academy’s leadership have unfortunately devolved, in my view at least, into little more than a postmodern Leftist cult incapable of rationally integrating the views of the outside world into their cloistered lives. They for the most part simply emote, cherry pick anecdotes, and name-call. Most (though not all) academy leaders and the universities they inhabit seem, at least to me, to be a mere subsidiary of of the Democratic Party. Ample evidence supports the conclusion that true education, civil discourse, and open discussion were long ago abandoned by all but a hand-full of professors. These few brave teachers who educate through objective civil discussion rather than enforce Leftist propaganda are ironically often liberal democrats. They are true heroes and heroines regardless of political persuasion. They are the academy’s hope and our youth’s hope for the future.

However for now, would-be professors who embrace constitutionalism, traditional Madisonian republicanism, or allegiance to country are virtually disqualified from acceptance by the now fully politicized professorial class. Conservative Republicans account for less than 8% of all college professors. Therefore, the main thrust of the 21st century academy is (with notable and important exceptions) proselytizing for a far Left postmodern society and condoning the current bat-swinging street violence.

The academy’s comrades and kindred spirits in the media also stoke the fires of unrest and street violence. The New York Times and Washington Post have devolved into political versions of the National Enquirer. One expects to soon see a NYT headline screaming, “Trump Proven To Be Alien from Mars”. This taking to the street to intimidate, destroy, and create spectacle is the quintessential Saul Alinsky tactic of in-your-face insurrection and most of the media endorses it and loves to see it. The new American Left and the extreme factions of the Democratic Party now use paid professional street organizers as a standard political process. Examples can be found in the paid agitators that were present at Trump rallies during the campaign.  The message from the Left seems to be that if  they can’t rule through participation in representative democracy then they will destroy the winner and take over through street intimidation, violence, and the politics of fear.

Any commentary indicting the Left and certain factions of the Democratic Party for intimidation, violence, and insurrection is incomplete without mention of the more fanatical precincts of the right. There are tiny isolated encampments of radical actors on the right. A few are occasionally caught in action in the street or meeting in an abandoned warehouse somewhere.  Trump’s intermittent crude comments, occasional sophomoric rhetoric, and his adolescent name-calling during the campaign have exposed him and his supporters to a certain level of legitimate criticism. Some portion of the Party’s infantile character assassination hurled at Mr. Trump are in-kind responses. However, in terms of numbers, materiality, and statistical thresholds, the more obscene members of the right are, I believe, quite small and insignificant when placed next to the anti-Trumpites who are currently breaking windows and starting fires in the street. Almost the entirety of the Democratic Party and the Progressive Left seem ready to set the country and Trump supporters aflame. This is the immediate danger facing our more peaceful law-abiding citizens.

The overarching dilemma facing the country now is how, if at all, will we unify the country. How do we tamp down our emotions and find common ground? Dutifully relinquishing power is painful. But it is required in a democracy. Unrestrained emoting is far more thrilling than self-control, self-containment, and self-discipline. But unrestrained emoting is also dangerous and debilitating, especially on a national scale.

Today there is much discussion about something called politicization. Most people don’t pause to define the term when they us it thereby creating confusion.  Since this essay is at its heart about the phenomenon of politicization, I pause to define the term as it is used here.  Politicization means to require government through its passage of laws or by its punitive intervention into the lives of citizens by its bureaucrats or intervention by legislation, or intervention by court action for the purpose of authoritatively enforcing each citizen’s personal behavior and the cultural norms or social norms they are required to follow. That definition is quite a mouth full but it is necessary to reflect on each word to understand the nature and meaning of politicization

The word politicization can, depending on context, also refer to political activity by a group of people, in or out of the government, meant to force this kind of government coercion to replace an area of citizen behavior that is still decided by the freedom of individual citizens. Politicization, i.e., state control of most or all citizen behavior, of all cultural and society norms is the hallmark of a statist society. In a statist society, there is an ever-present government person or persons exercising their authority to stand between citizens and dictate how they will interact, dictate what they may and may not say, and dictate what they may and may not do.  This is the statist society.

In the absence of politicization, individual behavior and cultural and society norms are determined by the citizens themselves based on their agreements or mutual acquiescence. A society that is largely absent of politicization, i.e., a society largely absent of government enforcement of behavior, is a civil society as opposed to a statist society. When citizens cannot agree or voluntarily acquiesce they simply go their separate ways.

The United States was founded as a primarily civic society and was designed with limited government intervention and little government enforcement of cultural and societal norms.  Behaviors and norms were to be determined by volitional agreements between citizens. These volitional agreements were to negotiated within a skeletal framework of a few and basic laws.  Only when one citizen claims another citizen has violated an agreement does is the power of government invoked to arbitrate or enforce behavior.

This civil design has changed in the United Sates over the last hundred years, particularly over the last thirty years, and most particularly over the last ten years.  The change has been executed without constitutional due process. More about this in later essays. The original civil design has been abandoned and in its place the process of gradual politicization has instituted a draconian statist society where government bureaucrats, legislators, and courts dictate and enforce the details of behavior of every individual and dictate every cultural norm. Almost nothing is left for free individuals to negotiate between themselves. America has become statist and is no longer has much left of its former free civil society. The transformation was brought about by the process of removing most of our individual free choices through politicization i.e., government control of almost all behaviors and norms.

Those who responsible for the transition and those currently seeking to ensure that there can be no return to a largely free civil society claim that the statist society run by an elite and dictatorial ruling class is far better for the citizens than a free civil society where the citizens decide behavior and norms on their own.  And while there can be distinct advantages to a mixed statist-civil society, there are hideous and terrible flaws with what the new American authoritarian state has wrought. I will attempt to explore these flaws in future essays.

Origins of American Traditional Judicial Review: Blackstone, Federalist 78, and the Marshall Court

Traditional constitutional review was not created from whole cloth with the launch of the nation. It has deep roots in English Common Law and the colonial legal system. Its legal logic and methodology is eloquently spelled out in William Blackstone’s Commentaries on the Law of England. Blackstone looks at the historical development of law, and then poses a five-step process for judicial review.

Blackstone’s methodology focuses the judge’s analytical lens on the words of the law and the linguistic content of the compact, case, document, policy, or law being reviewed. Studying the evolution and historical application of English Common Law, he determined that the best way to interpret is to read the words of the law and explore the intention of the lawgiver at the time the law was established.

The intention of the lawgiver is not the same as contemporary legislative intent. The lawgiver in American governance is the legislature as an entity, not as its separate parts. Congressional intent is manifested solely by the act of making words on the page become law. The political rhetoric of individual legislators or side notes of committee meetings would not, under Blackstone, constitute the intent of the lawgiver.

Blackstone’s sets forth a specific and comprehensible jurisprudential methodology:

1. a) First, go to the text of that which is under review. Examine the words understood in their general and popular use. This will almost always answer the questions posed by the facts at hand, questions of law presented, and any public policy impacts.
2. b) If, and only if, a good-faith examination of the text fails to provide the holding, applicable rule of law, and legally appropriate public-policy outcome, go to step two. Two is a re-consideration of the words in light of the context of the entire document in which the words reside. Text and context, sufficiently examined by the informed and learned mind with honest intent, will reveal what holdings, rules, and policy ramifications are to be applied.
3. c) When, in the rare circumstance that these two steps fail to answer the questions presented, go to step three. Re-evaluate the words again but this time in relation to the subject matter or public policy to which they apply. Sometimes specialized nomenclature makes its way into a statute or law and must be understood. If, in step three, questions of holding, rule of law, and policy implications can’t be ascertained, go to step four.
4. d) Step four is an absurdity test applied to the words to ensure that any interpretation of them does not lead to a holding or rule that is, on its face, absurd. Blackstone’s example is the English law against bloodletting in the streets meant to prevent bloody violence against citizens. A doctor performing emergency bloodletting to save an injured person would not fall under the law; that would be an absurdity.
5. e) Finally, in the unlikely event that no combination of these four steps produces an honest and discernible conclusion to the questions of law at hand, examine the words yet again, this time in the context of the whole document or law, to determine the spirit, reason, essence, and meaning of that which is under review. This would be a rare instance indeed.

If Blackstone laid the foundation for English judicial review, Federalist 78 suggests that his analytical foundation should be used for American constitutional review. Blackstone’s model was the starting point for traditional American constitutional interpretation.

Federalist 78 mirrors Blackstone’s traditional mode of review. Alexander Hamilton writes, “It can be of no weight to say that courts, on the pretense of a repugnancy, may substitute their own pleasure to constitutional intentions of the legislature.” As with Blackstone, Hamilton places the locus of review in the linguistic structure of the law, not judicial will. He argues from the vantage of the vesting clauses of Articles I and III, and anchors his design in constitutional text. Blackstone, colonial common law, and Federalist 78 laid the legal foundation on which the Marshall Court would build the institution of American constitutional review.

The American incarnation of traditional review is embodied in the jurisprudential reasoning and language of Marbury v Madison (1803) and many subsequent Marshall-Court decisions. Marshall uses Marbury to establish the Constitution-bound character of American judicial review. A quick summary of this cornerstone case explains the essence of American traditional judicial review.

Appellant William Marbury sought the specific legal remedy of a writ of mandamus under the Federal Judiciary Act of 1789, Section 13, which named the Supreme Court as the court of original jurisdiction for adjudicating such writs. Marbury filed such a writ with the Supreme Court in compliance with Section 13. The Marshall Court acknowledged that Marbury was entitled to the relief sought (awarding of a magistrate’s commission), and that a writ of mandamus was the proper legal form for remedy. The Court then declared Section 13 to be unconstitutional.

This was the first time the Supreme Court had struck a Congressional statute as being impermissible under the terms of our national compact. The Court’s reasoning is based on a reading of the text of Article III of the Constitution that establishes only two explicit areas of original jurisdiction for the Supreme Court. Neither area included original jurisdiction over mandamus. Accordingly, the Justices ruled unanimously (4-0) that the Court had no jurisdiction to decide writs of mandamus. They cited Article III’s silence on mandamus along with its explicit establishment of only two areas of original jurisdiction. Marbury and key opinions that followed institutionalized Constitution-bound judicial review for the new nation.

Marbury claimed for the Supreme Court the authority to decide conflicts between the content of Congressional statutes and constitutional text. General acceptance of Marbury and its standing the test of time established the authority of the Court to determine the constitutionality of statutes.

The jurisprudential methodology on which Marbury rests defines the essence of American judicial review: Look to the Constitution for an honest and reasonable textual permissibility. This “textual permissibility” approach requires adherence to the Constitution’s explicit language and structure. It is true that the Constitution is a framework to be filled-in by the operation of politics and jurisprudence. But exceeding clear constitutional permissibility while doing so brings grave consequences.

The Marshall Court would, even as it liberally defined allocation of power under the doctrine of federalism, ensure interpretation of fundamental law in the tradition of Blackstone’s Commentaries and Federalist 78.

Progressive academics have presented a counter argument asserting that Marshall soared beyond the bounds of textual constraint to aggressively ensure a strong and preeminent national government. He was, after all, a committed Federalist. Robert Warnick writes, “Marshall had a lifelong conviction that a country needs a central government with power and responsibility enough to override local interests.” Some progressives assert Marshall was a believer in the living constitution, and cite Marshall’s dictum from McCulloch v Maryland (1819) “We must never forget that it is a constitution we are expounding, a flexible instrument sufficient to the exigencies of the nation.”

Their argument continues. In McCulloch, the Court interprets the “necessary and proper clause” broadly in order to ensure successful execution of national government responsibilities. The decision is, indeed, a significant step in the direction of an energetic national government, as one would expect from a Federalist-leaning Court.

However, the language of the opinion is classic Blackstonian jurisprudence and establishes the Marshall Court as Constitution-bound. Marshall’s opinion in McCulloch states, in part:

“Let the ends be legitimate, let it be within the scope

of [the] constitution, and all means which are appropriate,

which are not prohibited, but consist with the letter and

spirit of the constitution … ” (italics mine)

Marshall’s use of this language in a comprehensive landmark decision, commits the Court and the nation to textual constraint and constitutional allegiance. Such language is the hallmark of most of Marshall’s interpretations. A thorough content analysis of the Marshall Court’s hundreds of decisions is beyond the scope of this paper and such an analysis would, without a doubt, reveal some contradictions. Nevertheless, on whole, their key opinions bind interpretation to honest and reasonable textual constraint.

Today such Constitution-bound language from the majority would evoke ridicule from contemporary Progressives. The re-establishment of constitutional constraint has been left to the shrinking minority on the Court. In 2012, Antonin Scalia wrote, “A more latitudinarian approach to interpretation, by contrast, makes it hard to see when the judge has succumbed to the Dark Side of the Tenure – which, like the Dark Side of the Force in Star Wars, is marked by self-indulgence.”

Scalia and Marshall are members of the same constitutional tribe. Marshall’s own words, when taken in whole and in context, describe a Justice and a Court fully committed to Constitution-bound review. This traditional review became the jurisprudential institution on which American constitutional law rested. Then things changed.

Leaving Traditional Judicial Review to Enter the Brave New World of Modern Judicial Review

During the 20th century, modern review replaced traditional review. What began as a distinctive judicial power to interpret the Constitution, essentially different from legislative review, became merely another variant of legislative power.  The result has been radically different outcomes in the holdings, rules of law, and public policy flowing from the Supreme Court. These have transformed American culture and quietly ushered in a new form of governance that runs counter to constitutional republicanism.

Constitution-bound interpretation was attacked as old fashioned and non-utilitarian by progressive intellectuals and academics. The Progressive Era was the first major period in American political development to feature, as a primary characteristic, open and direct criticism of the Constitution. Although progressives were not in complete agreement with one another on policy and means, they universally asserted that the existing constitutional system was outdated and must be made into a dynamic, evolving instrument of social change.   Change not by amendment but by central-government decree.

This criticism of constitutional design was unique because it formed the backbone of the entire progressive movement. The fact of a ratified Constitution seemed almost irrelevant in light of the newly evolved human subspecies homo progressia and its claim to decide matters of public governance for the rest of the body politic. Madisonian separation of powers was no long needed to protect liberty. The highly evolved homo progressia would become the protectors of liberty and determiners of policy. Severe and widespread social problems created by hyper industrial growth in the last half of the 19th century demanded that the progressives be allowed to step in with unimpeded corrective measures. Or so they argued.

The post-New Deal Courts, cut loose from their constitutional anchor, found themselves free to sail the open seas of modern judicial review. Today, Court majorities routinely select a culturally transforming value that fits their vision of “how America ought to be”, then advance their argument on premises often well outside the four corners of the Constitution. They are building a New America, refashioning society by sheer will, blithely pre-empting the legislative process and its national discussion.

Still, Americans invest heavily in constitutional rule and its Madisonian design. The illusion of separation of powers is necessary to camouflage modern judicial review’s inherent authoritarianism. The facade of constitutionalism reassures the public even as the reality of constitutionalism fades. Court majorities bury their social edicts in reams of excessive dicta and vague allusions to precedent that give the appearance, but not necessarily the substance, of constitutional reasoning. Key landmark cases decided by the Court today often result in holdings, rules of law, and public policies that are significantly different from what would be possible under constitution-bound interpretations of the Marshall Court.

Exploration of three culture-changing cases – Griswold v Connecticut (1965), Roe v Wade (1973), and Doe v Bolton (1973) will be offered as supporting evidence. They exemplify modern judicial review’s theocratic nature, and would have resulted in quite different outcomes had constitution-bound judicial review been applied.

The Griswold–Roe–Doe phalanx is the smoking gun, the irrefutable evidence that exposes a modern Court operating far outside the nation’s constitutional compact. Sections five and six will provide evidence supporting this view and highlight the dangers that lie therein.

Some academics contest the assertion made by a growing body of contemporary scholars that judges are routinely operating outside the Constitution. Frank Easterbrook writes “political scientists, editorial writers, and cynics often depict judges as doing nothing other than writing their preferences into law. Careful observers of the judiciary do not make that mistake.” His point appears to be that vestiges of original constitutionalism remain.

The Court, of course, still makes decisions that rely on the Constitution and only the Constitution. Elements of traditional Marshall-style review can be seen here and there. This is because the vast majority of cases heard by the Court do not create new fundamental rights. Most decisions are matters of mere statutory construction or cases that require application of already settled rules of law. Only a handful of cases change the Constitution, create new rights, and result in cultural transformation.

The ultimate damage done by modern judicial review is that it is diminishing the Court’s credibility and authority to maintain the rule of law in the minds of the citizens. Historically, the Court has stabilized American politics through its use of interpretative processes largely based on non-partisan traditional constitutional review. The citizenry has intuitively trusted the Court to mostly (but not entirely) remain above political and social warfare. However, what the Court often does today is issue personal decrees that are enforced by the guns of government, not by the acceptance of the public. Modern judicial review replaces the constitutional republic with the new authoritarian state. If the Court continues with modern review, the rule of law will yield to the rule of guns, if it has not already.

Sinking Deeper into the Dark Side of Tenure

Progressives rose to national power becoming the dominant political and intellectual voices in the 1920’s and 1930’s. A full exploration of Progressive history is beyond the scope of this paper but it is generally correct to say they sought to transform the Court from Constitution-bound reviewer of fundamental law into an agent of social and cultural change. Nothing demonstrates this movement to change the Court’s identity and modus operandi more clearly than the progressive campaign to canonize living-Constitution Justices and to demonize Constitution-bound Justices.

Felix Frankfurter launched the canonization – demonization strategy in 1916 with his festshrift on Justice Oliver Wendell Holmes.In this homage, Frankfurter established the committed progressive Holmes as the bellwether for proper Constitutional interpretation. Legal commentary about individual Justices was new, with little similar personal commentary to be found before the 1920’s. The progressive’s good judge – bad judge campaign had begun in earnest.

In The Constitution and the New Deal, G. Edward White examines the progressive canonization phenomenon. He analyzes essays written by progressives in which they critique 20th century Justices. He finds two categories of reference to the Justices. The first category consists of references to Justices whom they routinely canonized as “progressive”, “liberal”, and “modern”. The second category consists of references to Justices whom they routinely demonized as “conservative”, “reactionary”, and “old-fashion”. For instance, during the 1930’s progressives lumped traditional-review Justices Devanter, McReynolds, Sutherland, and Butler together for ridicule, and by the 50’s had characterized them as “The Four Horsemen of Reaction”.

By the late 60’s, progressive Justices who unabashedly pushed for radical cultural change through Court mandates were revered as intellectual and social icons inside the academy. To this day, the meme of the progressive activist judge as unquestioned intellectual and cultural hero prevails. Witness Sonia Sotomayor’s remark that “one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench.” . Such application of idiosyncratic personal preference to decisions on matters of constitutionality is quintessential modern judicial review.

The political rise of the progressives over the twentieth century empowered them to steamroller Constitution-bound judicial review. American constitutional review and culture would be transformed, as an examination of three modern-review cases will demonstrate.

Before We Proceed Further, What’s So Great About the Constitution?

An assumption underlying the argument being presented here is the necessity of adherence to and reliance on the Constitution. But why is there such a necessity? It is because without it our republican form of government would likely wither, and a corrupt and authoritarian state would likely rise to replace it. This assessment is based on scholarly writings, both old and new. They recount abuse of power from pharos to monarchs to military strongmen.

Much of the necessity assumption rests on the convincing works of Locke, Montesquieu, and Madison along with the contemporary work of Gary Lawson, Ronald Pestritto, Thomas West, and others. In 1748 Montesquieu sums up the problem, “Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.” Montesquieu, like the Greeks, concludes on the evidence of history that “the nature of the State’s constitution is of the greatest consequence.”

The nature of human inclination is often argued by post modern progressives to be so subjective that it defies understanding or at least it is constantly evolving, i.e., a moving target that must be constantly redefined. This assertion is mostly sophistry. While civilizations can and do advance and develop (as well as fall and fail), the past offers evidence enough to conclude a consistent pattern of human attributes and human conduct over time.

The Constitution, and the separation of powers embedded in it, rest on a more historical and fact-based understanding of human nature than does progressivism. There is little evidence that a more virtuous, more knowledge-possessed, and more intelligent species of human evolved to inhabit the twentieth century.

The Constitution, with all its flaws, shortcomings, and imperfections, serves as a seawall against the storms of authoritarianism that perpetually sweep across bodies politic. If one is to trust the events of history, the Court’s use of modern judicial review moves us deeper and inextricably into rule by bureaucratic masters.

Modern Judicial Review’s Impact on Culture and Society

The primary impact of modern review is that fundamental law rooted in experience, history, and reflection is relegated to inconsequence. Three cases, Griswold, Roe, and Doe, stand as evidence that the Supreme Court, when convenient, sees the Constitution not as binding fundamental law, but as a minor historical roadblock to be circumvented. These cases demonstrate how the Justices implant language in an opinion as justification for even more radical constitutional departures in future decisions. This is not adherence to the rule of law; it is culture building.

The Case Evidence:

Griswold v Connecticut 381 U.S., 479 – 85, 1965  

The Executive Director of Planned Parenthood of Connecticut’s executive director and medical director were convicted as accessories for violating Connecticut law against giving married persons information and medical advice on how to prevent conception. The Court held that the Connecticut statute forbidding the dissemination of information on contraceptives violates the fundamental right of marital privacy that falls within the penumbras of specific guarantees of the Bill of Rights.

The Court reasoned that specific guarantees in the Bill of Rights have penumbras, yielding rights formed by emanations from “those guarantees that help give them life and substance.”These penumbras give rise to a constitutional right to marital privacy, which forbids state interference.

Factual analysis reveals problems with that finding. Griswold was a setup case. The law in question had never been enforced or prosecuted but lay inert from days long past. The Director of Planned Parenthood worked with the prosecution to be charged with a violation. The setup had nothing to do with a prohibition on distribution of birth-control information. The case was the first step in the judiciary conspiring with activists to legalize abortion through the courts thereby avoiding the bothersome legislative process and time-consuming national discussion. Fundamentally changing the culture by Court fiat rather than national conversation is modern judicial review’s modus operandi.

Even with the Griswold setup, finding a Constitutional right to abortion was going to be difficult. But modern judicial review simply rewrites the constitution – no amendment needed. Thus, William O. Douglas incants “penumbras emanate” and conjures into existence, voila!, the right of marital privacy.

That this is not jurisprudence but little more than New Age drivel seemed to bother only a minority on the Court. Byron White would make this point in his Roe dissent. “I find nothing in the language or history of the Constitution to support the Court’s judgment. The court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its actions, invests that right with sufficient substance to override most existing state abortion statutes.”

A right to marital privacy might a have been legitimately found on constitutional grounds but not in Douglas’ emanating penumbras. A more credible source would have been the constitutional text of the 4^th amendment ensuring a right to be secure in our homes. Constitutional restrictions on government intrusions into the home might plausibly extend to the marital bedroom, no penumbras needed.

Modern judicial review often strategically links cases in order to arrive at a cultural change that could not be achieved through the legitimate legislative process. Case A is embedded with language designed to be invoked in cases B and C. Griswold was case A. Roe v Wade and Doe v Bolton cases B and C. This is the “legs of dicta” strategy invoked when modern judicial reviewers seek to change society from the bench.

Roe v Wade 410 U.S., 113, 1973

“Bodily” privacy would, without sufficient jurisprudential foundation, leap from Griswold’s marital privacy into the Roe decision. Why conjure into existence bodily privacy? The evidence suggests that the Justices were setting up to “discover” a right to unfetter abortion on demand, and they needed a rationale even if it was jurisprudentially implausible.

The underlying facts raise more troubling questions. The Federal District Court heard Roe with no trial court transcript and no review of trial level testimony. Why? Because there was never a case in controversy, never a trial, and never any evidence for the court to review. As a matter of law, this meant that there was no party who had standing. Ignoring this legal requirement, the District Court granted Roe standing, heard the “case”, and performed the magic that only modern judicial review can perform. It transmogrified the legitimate question of law “what limits may the states place on doctors performing abortions?” into the out-of-left-field question, “does the Constitution contain a fundamental right for women to terminate their pregnancies at will?” The Court panel, one of which was a pro-abortion activist, “discovered” that right embedded in the ninth amendment.

Curiously, lower-court winner Roe appealed her win to the High Court and was granted certiorari. Roe had gotten her right to abort and one would think that would have ended the litigation. The appeal was filed because the objective was never to secure Roe a legal abortion. Roe herself was simply a means to an end. That end was to give all women the fundamental right to abort their pregnancies at any time for any reason.

The Supreme Court upheld Roe, basing its decision in large part on the flawed – erroneous and factually inaccurate – essays of Cyril Means. Mr. Means was an attorney and long-time pro-abortion activist. Neither the District Court nor the High Court weighed the rights of the human living in utero vis-à-vis the mother’s rights. Mean’s essays were used to misdirect attention away from the human in utero and toward the issue of women’s health. This redirection of focus created a detour around two hundred years of common law, statute law, and jurisprudence regarding the rights of the human fetus. For instance, property law had long invested the human living in utero with legal rights. But then the Courts were in the midst of executing a years-long social-engineering plan to radically alter the culture. They were not interpreting law. The fetus and its rights were simply deemed irrelevant to the question at hand.

Doe v Bolton 410 U.S. 179, 1973

            Roe contained the language that gave a woman free reign over an abortion decision in trimester one, less reign in trimester two, but returned primary control to the state in trimester three. However, Doe created a way around any limitation by the state. This was accomplished by the ‘women’s health exception’ which, if the mother’s health is at risk, moots the state’s authority and returns the abortion decision to a woman and her doctor.

Most people envision a gravely ill near-death mother being aborted so that she may live. This was not the vision the Court had in mind. It defined women’s health to include anything in the life of the woman impinging on emotional, psychological or familial health. Translation: There may be no state intervention at anytime. The Court released Roe and Doe on the same day commanding that the two decisions be read and taken together as a single operating legal entity.

The Griswold-Roe-Doe phalanx is modern judicial review operating on all cylinders: Come up with a radical social change that could never survive the legislative gauntlet or a national conversation, conjure up cases with plausible facts, chain them together, then decide them on pseudo social science ignoring conflicting jurisprudence, common law, and constitutional text.

How Would the Court Have Decided Differently Under Traditional Review?

            Court decisions arrived at under traditional review differ from those arrived at under modern review. For instance, Griswold could never have been decided under Douglass’ claim of emanating penumbras. The argument that auras and penumbras emanate fundamental rights is not law; it is metaphysics. In fact, modern judicial review is little more than metaphysics which is why it so dangerous to the rule of law. The Court might have found a right to marital privacy in Griswold under traditional review. It could have gone to the 4^th amendment that conveys, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” The 4^th amendment’s “secure house” might well have been extended to the marital bedroom of that house. That would have at least anchored the finding in constitutional jurisprudence. The Constitution is written law not an Ouija board.

But subjecting Griswold to this constitutional tradition would not have so easily accomplished the hidden objective the Justices sought: Set up a string of cases that would lead to an unfettered abortion right for women.

Roe would have never been made it to the court docket under traditional review. Norma McCorvey never sought an abortion, was never denied an abortion and never had an abortion. She had no standing; there was no case in controversy, and no lower court proceeding to review. Traditional jurisprudential review would require that rules for standing be met. It would also require that a real case in controversy exist.

Likewise, Doe would have been decided differently under traditional review. The essence of Doe is reliance on the health of the mother for its legal rule. In deciding Doe, the Court relied not on constitutional principle and law but on the social science essays of Cyril Means. Social science academics and their theories are compelling sources of law only in modern review, not in traditional review.

Other cases would have had different outcomes under traditional review. Take Wickard v Filburn (1942). The Court decided that wheat grown on the family farm, made into flour on the same farm, baked into bread in the farmhouse, and eaten at the family kitchen table was interstate commerce subject to federal regulation. Such a decision would have been impossible under Marshall-style traditional review. Traditional review would have required that commerce be defined as commonly used. That common usage is “the activity of buying and selling, particularly large scale buying and selling, between states.” This activity was entirely absent in the Wickard fact-set. Other key Supreme Court cases would have been decided differently or not even made it to the Court docket under traditional review.            

Conclusion

The Constitution was created as the supreme law of the land. It is an agreement between the People and their sitting governments. It is also an agreement between and among the People themselves. As with any agreement, compliance with the terms of our Constitution requires an authoritative Keeper-of-the-Compact. Early American political development was, in part, a search for the proper institutional location for this primary compliance function. The search would not take long.

John Marshall declared the Supreme Court keeper of the American Constitution when his Court issued Marbury v Madison in 1803. The Constitution would stand guard over the rule of law and the Marshall Court would stand guard over the Constitution.

Using modern judicial review, Progressives quietly rewrote the terms of the American compact while a nation slept. This paper, relying on and summarizing the work of others and evaluating the facts in evidence describes what can accurately be described as the rise of the American Ayatollahs. If the United States is to control the authoritarian Leviathan that is our governance in the twenty-first century, return to the traditional constitutional review of the Marshall Court will be a necessary first step.

________

In this dark hour, the American constitutional republic seems lost. Our founding form of governance has burnt to the ground from fires set by political arsonists. A postmodern  regime opposed to a free civic society and constitutional rule has taken control. Its operatives are systematically installing an authoritarian bureaucratic state on the site where our free civic society once stood. The Congress is but Kabuki Theatre, the Courts have abandoned constitutional jurisprudence, and the Executive has weaponized the federal bureaucracy to intimidate citizens into acquiescence and has skillfully divided Americans into angry warring factions. The efforts of the regime in dividing us and in stoking the fires of animosity between American citizens have been so successful that we are now entering what could correctly be called die Schrecklichezeit, the Terrible Time: Citizen against citizen.

We must not allow the regime’s strategy of government led citizen agitation continue. Let us not surrender to the forces of administrative authoritarianism, let us recognize that the war for constitutional America continues and that we must gather ourselves for the battle ahead. That battle has but one end: The re-constitutionalization of the United States. Victory will be achieved when the courts return to constitutional-based jurisprudence, the executive unites our citizens in common cause, and Congress re-connects itself to its mandated constitutional duties. Fighting this battle will require sacrifice, commitment, and enduring the indignities and injuries visited upon us by a hostile regime.

The shape, form, and structure of the now-forming re-constitutionalization movement are yet to be determined. We each must decide what, if any, role we are going to play in the days immediately ahead. A necessary start is for each of us to insist that Congress obstruct, in every way possible, the newly elected regime’s actions aimed at completing the century-long effort to de-constitutionlize America.

The battle begins in Congress, particularly in the committees responsible for appointments and oversight. First, those waging the war for re-constitutionalization of America must identify statesmen-leaders who have the intelligence, commitment, credibility, and courage to articulate and execute an ongoing unceasing plan of attack against the current regime. Second, we must assemble large numbers of citizens who will support and defend these leaders over the long engagement ahead. Third, each individual combatant must be willing to contribute to the cause by asserting himself into the fray boldly and with knowledge-based well-articulated rhetoric. Fourth, like Tank-man standing steadfastly in front of the tanks in Tiananmen Square, we must be willing to facedown the current regime’s intimidation.

Yesterday, on the Google homepage, there was an ad for “The Global Citizen’s” Festival in Central Park. This “Global Citizen” hype is everywhere these days and is gaining momentum throughout the West.

Here is one possible interpretation of the so-called Global Citizens movement. Let’s call it the Brave New World hypothesis and it goes like this:

There is, indeed, something akin to an international postmodern movement afoot and its players are trying to end (or at least significantly weaken) the political supremacy of the nation-state structure of the world. The players are using the Alinsky playbook. The objective is creation of a global state that politically and economically supersedes all nation-states. The global state is to be run by a tiny corp of intellectual elites who will also be the prime benefactors of the “perks of power”.

The institutional players are the International Monetary Fund, The World Bank, the United Nations, World Health Organization, the Academy, large multi-national corporations, Facebook, Google, and international NGO’s.  Now that these key global-state institutions are in place and the players are beginning to coalesce, the propaganda campaign is unfolding in full force. Their key objective has been to begin to “dilute” the power and authority of the nation-states around the globe, a necessary step toward global statism. Under the global-state paradigm, nations still exist but merely as benign political-districts serving the vision of the global-state.

The governing structure sought by the global statists is loose and committee-like. The global-statist believe that under the new global order two or three key inspirational leaders will always emerge to “Lead the Global State”. There is no one central locus of operation where these globalist meet to conspire. Communication is postmodern in method: Adherents and would-be adherents listen for the “bird-whistle” in the news media and social media. These would-be global citizens are always on the lookout for “spontaneous happenings” such as the sudden appearance of Black Lives Matter, Occupy Wall Street and other faux public raging against the nation-state. The call-to-action is implicit and clear down to the locations of neighborhoods that are to be the point-of-assembly. Collectively, these methods of postmodern communication loosely bind the globalists and unite them in their daily efforts to “change the world”.

The key political tactics are to de-stabilize key nation-states through: a) massive illegal & legal immigration & radical mixing of all cultures resulting in tensions, chaos & anarchy,  b) creating impossible-to-amortize nation-state debt, c) teaching young citizens a revisionist history that erases the lessons and facts of the past, d) control election outcomes through un-manageable, impossible to track, chaotic voting processes, e) convince citizens that they have an innate right to be the recipients of the wealth and income of other citizens with government being the intermediary and, f) creating a false narrative that nation-states resisting global statism are racist, totalitarian, and oppressive which gives rise to the need for their re-placement by an objective, neutral, professionally run global-state.

The last significant obstacle to rendering the nation-state subservient to the global-state is substantive reduction of nation-state military infrastructure.

This scenario is far-fetched, I know. The real world of our politics is much more pedestrian, confused, disparate, and plural. Nations are not likely to surrender to the globalist vision quite so easily.  But this description has the troubling aspect that it fits many of the facts and much of the rhetoric of contemporary politics rather well.

Justices on the Supreme Court Have No Constitutional Authority Nor Any Moral Basis to Decide What Our Cultural and Moral Norms Shall Be   

The vast majority of the Court’s work focuses on issues of little national consequence. This work looks at such things as statutory construction or clarifying the proper application of a long existing rule of law to a rather pedestrian matter that is of importance only to the parties. However, the Court must, on occasion, interpret the Constitution and apply that interpretation to a large overarching constitutional question that carries significant, lasting, and transformative impact on society. Chief Justice Marshall famously wrote that it was “emphatically the province and duty of the Court to say what the law is.” I think that Marshall’s words are meant to apply to these occasions. I also think, he meant to establish for the new nation, a general frame of reference that contains the essential rules, methods, and philosophy of America’s jurisprudence. A careful reading of the quote, along with the fuller explanation that follows in Marbury and other cases, reveals Marshall’s understanding of the Constitution. I do not take him to be claiming a judicial supremacy that resides in the will of the justices. Quite to the contrary, his quote and words that follow in Marbury and elsewhere, instruct us that supremacy lies in the language of the Constitution. It is the duty of the Court to base its decisions on what the language of the document actually conveyed when written. Marshall pledges allegiance to the Constitution, not judicial will.

To come to this conclusion, I focus first on the words “duty of the Court” and take them to mean that duty implies that the Court is bound to something larger than itself, something more profound, and something more lasting than the internal will of the justices; and that larger ‘something’ is the written words of the Constitution. In Cohens v Virginia, Chief Justice Marshall says, “A constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it.” In Osborne v Bank of the United States he says, “ Judicial power, as contradistinguished from the power of laws, has no existence, Courts are the mere instruments of the law.” From these statements, I conclude that Mr. Marshall means that neither the will of the Court nor its interpretations are the supreme law; the supreme law stands separate and alone as its own being. In the United States that ‘being’ is the words, clauses, articles, and whole document of the Constitution.

The Marbury quote also states that “it is the province of the Court to say what the law is” but he does not say that such province lies solely and only with the Court. I believe that this wording, in Marshall’s view, keeps him within the founding principles of the separation of powers. The fact that the thirty-five years long Marshall Court and the twenty-eight years long Taney Court rarely intervened into national affairs to overtly reverse or overturn a Congressional act supports this conclusion.[1]

I have often asked myself, “Why was the Court reluctant, over these many years, to intervene into what Congress did? “ For me the answer lies in large part in these words of Marshall’s, “Judicial power, as contradistinguished from the power of laws, has no existence, Courts are the mere instruments of the law”. It is apparent, at least to me, that he places the supreme law not in the interpretations of the Court but in the physical being of Constitution. This is why senior judges trained in the law, history, and legal philosophy who have spent large portions of their lives working in the courts reading and applying law are uniquely qualified to find and extract constitutional meaning from the words, clauses, articles, and whole document of the Constitution.

If, as I have done, I pledge my allegiance to the words and language of the Constitution, I must, if I am to be thorough, comment on the long line of precedent that stands separate from the Constitution. Do I believe that precedent cases stand as supreme law of the land? My answer is that they do not. There is only one supreme law of the land and that is the Constitution. Precedent cases exist as Court manifestations of the outcome the Court, in the exercise of its constitutional duty and oath, has determined the supreme law, in a particular instance, seems to require. If that manifested outcome is reflected and contained in the words, clauses, articles, or whole body of the Constitution, it stands as legitimate law. However, that particular precedent case, valid law though it is, remains subordinated to and a creature of the Constitution. Justice Antonin Scalia is one of my several sources for this line of jurisprudential reasoning. Critiquing the current modern mode of judicial review he says, “The starting point of the analysis will be Supreme Court cases, and the new issue will presumptively be decided according to the logic that those cases expressed, with no regard for how far that logic, thus extended, has distanced itself from the original text and understanding.”[2]   He goes on to say “Worse still, however, it is known and understood that if that logic fails to produce what in the view of the current Supreme Court is the desirable result for the case at hand, then like good common law judges, the Court will distinguish between its precedents, or narrow them, or if all else fails overrule them, in order that the Constitution might mean what it ought to mean.”[3] This is followed by “Never mind the text that we are supposedly construing; we will smuggle these new rights in, if all else fails, under the Due Process Clause.”[4] Justice Scalia’s withering description of judge-willed interpretation articulates more eloquently than I could, how the will of the judge has replaced the will of the Constitution.

I do not want to leave the impression that I believe precedent valueless. Carefully and faithfully extracted from very similar cases, precedent rules give law its necessary continuity. I take exception with what I call improper and disingenuous application of precedent. Robert Rantoul, an early American politician and practicing lawyer said it well. In a Fourth of July speech many years ago, he asserted, “The judge makes law, by extorting from precedents something they do not contain. He extends his precedents, which were themselves extensions of others, till, by this accommodating principle, a whole system of law is built up without authority or interference of the legislator.” Justice Scalia comments on Mr. Rantoul’s remarks saying, “Substitute the word people for legislature and it is a perfect description of what the modern American courts have done with the Constitution.” There is valid precedent which is faithful to the law, and there is conjured precedent used to force upon society the will of the judge. I endorse the former and eschew the later.

Mr. Scalia also describes another phenomenon of the modern Court. That is that the modern Court’s Constitution seems to be comprised only of he Bill of Rights and the due process and equal protection clauses of the Fourteenth Amendment. The seven original articles that are the structural framework for our federalist system of government have somehow faded off the pages as if they had been written in disappearing ink. In fact, the Court has constructed a fast moving assembly line that creates categories of rights as fast as postmodern progressive lawyers can invent them. These so called rights are then packaged as products to sell in the political market place. This practice is not constitutional and it is a danger to social stability.

I want to make one last reference to Justice Scalia as it will bring into finer focus my jurisprudential approach in interpreting the words of the Constitution and views on judicial supremacy. Mr. Scalia differentiates between strict construction and reasonable construction.[5] I, following the teaching of my jurisprudential betters Justice Marshall and Justice Scalia, adhere to reasonable construction. I am not a strict constructionist as I believe that would, on too frequent occasion, lead to the absurd outcomes about which Blackstone warned us and for which he provided a commonsense remedy.

Let me reiterate my view on where ultimate supremacy lies; it lies in the words, clauses, articles and whole document of the Constitution. There is long standing jurisprudential methodology that allows for faithful interpretation of those written words. Blackstone pointed the way in his Commentaries on the English Law and Chief Justice Marshall incorporated much of Blackstone’s methods into American jurisprudence. Blackstone and Marshall have constructed, not a mindless textual mantra, but a well-structured, rule-managed, accommodating, and flexible analytical process.

Interpretation of the Constitution’s words is further made possible by the nature of the constitutional compact. Court interpretation and application of constitutional meaning does not (or at least should not), on the vast majority of occasions direct the normal ongoing course of minor political affairs such as how we shall arrange traffic laws for an automobile society. Nor does it tell us how to arrange the work-a-day activities of the modern technological society nor does it create, erase, or enforce specific cultural norms. The Constitution and the power of constitutional interpretation is to be reserved to: 1) Maintain the overarching political relationships of the three branches of the federal government; 2) Maintain the power relationship between states and the national government and; 3) Defend the individual from denial of a restricted number of fundamental and sacred rights belonging in common to all.

There is much discussion today about the need for a so-called Living Constitution driven by judicial supremacy. The premise is that the Constitution must be capable of responding to the complex fast-changing problems of the twenty-first century. That Living Constitution has been present from the beginning and it is found in Articles I and II. The Congress and the President have always performed the functions of a “living constitution”. The duty to fashion new laws that address the problems of modernity falls to the Senate and to the House. There are committees for studying, analyzing, and addressing every modern problem. Each of those committees has access to the best and brightest experts in the world on every possible technological, social, and financial area of inquiry. It seems to me that the progressive postmodern Court has claimed to have found an authority to will social, cultural, and economic transformation simply because they want to.

I believe that the American republic is confronting several existential crises, one of which is a Court that has drifted rather far from the political agreements it made with the people, the states, and the other branches of government at the Founding. I believe that the Court’s duty and oath require it and me to exercise a good-faith allegiance to the original constitutional agreement. Postmodern Leftists have marched onto the American scene, destroyed constitutional America, and replaced it with central authoritarian rule by a self-anointed elite.

[1] The Dred Scott decision is excepted as a radical departure Constitution based interpretation. It brought such draconian impact and so clearly contradicted the from Constitution and its sister document the Declaration of Independence as to stand alone and apart from regular constitutional jurisprudence.

[2] Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, p. 29

[3] Ibid

[4] Ibid

[5] Ibid, p. 38

Symbolic images are powerful communicators of large overarching ideas and mythologies. Swastikas and olive branches convey meaning and imprint themselves on the mind. All political regimes create their visual icons and images as a first order of business. The American flag is one such political image. Since the beginning of our Republic the vision of the Stars and Stripes has served to carry the history and values of our nation. The flag is the most powerful, most revered and most iconic of all American symbols.

Each morning when I arrived for work at the San Diego Immigration Court, I logged onto the United States Department of Justice’s public website to check the goings on. For years, I was greeted by the DOJ website banner flying above the homepage. Department of Justice officials had, in my view, achieved the perfect vehicle for conveying the values of the Department and its mission. The banner is printed below. My guess is that your overall response is positive and the banner elicits something akin to pride and patriotism. That was my reaction along with a sense of the banner’s pure beauty.

Shortly after Obama’s election and the appointment of Eric Holder as the Attorney General, I arrived at my desk and logged on to find that the United States Department of Justice theme banner had been replaced with this:

Compare your response to viewing the original. Obama and Holder are well aware of the power of political symbolism. It is reasonable to ask if they are using the revised symbol to erode America’s history and unwind the culture of traditional America. Is there any other interpretation? Is there any reasonable explanation other than distaste for historical America? To whom are they communicating and what is the deeper meaning of what they wish convey?

We dismiss the DOJ website banner lightly at our own peril. How long will it be before we look back on such seemingly trivial events and say, “How could we have missed the signs”?

The Nature and Parameters of the Research Inquiry

This paper explores two broad questions: 1) Does the federal judiciary seek to impact or change duly passed congressional legislation and, 2) If so, how does the Congress react to these judicial initiatives. The underlying assertion is that key members of the judiciary attempt to deconstruct, rewrite or change congressional legislation, either for reasons of sound jurisprudence or because they personally disagree with Congress’s policies. This thesis is explored through a case study of a landmark Congressional Act, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Specifically, one section of the Act is the focus and is followed from its initial floor debate to final passage, implementation, and finally to judicial reaction.

Congress passed the IIRIRA, which was the most comprehensive immigration reform since the Immigration and Nationality Act of 1952. One key objective of the Act was to stop re-entry after deportation[1] by criminal aliens; that is, aliens who have been deported or removed on the basis of having committed a serious crime known as an aggravated felony. The Act expanded the definition and type of offense considered to be an aggravated felony and increased the severity of sanctions for re-entry by previously removed criminal aliens. An alien in removal proceedings who has been convicted of an aggravated felony on or after November 29, 1990, may be sentenced to up to 20 years[2] in prison for re-entry in violation of the removal order. This enhanced deterrent to illegal reentry is known as USC 1326, Section 2.

The Act, through the U.S. criminal code, names a significant number of crimes and classes of crimes considered to be aggravated felonies that could trigger 1326 incarceration sanctions. The list of crimes reads as follows:

[1] The term deportation was replaced by the term removal in the 1996 Act. There are some technical differences between the two terms but, for the purposes of simplicity, this paper uses the terms interchangeably unless otherwise noted.

In the years since the passage and implementation of the Act, the Ninth Circuit Court of Appeals has rendered a significant number of decisions eliminating or weakening many of these crimes as a basis for removal in deportation hearings and for prosecuting criminal aliens for re-entry after removal. The result of this elimination has been to effectively deconstruct a portion of the landmark Act. A number of Ninth Circuit Court decisions seem to be, at least in part, based on the personal policy predilections of the judges rather than on jurisprudential considerations. There is evidence for this assertion. For instance, Ninth Circuit Judge Stephen Reinhart said in a debate with Circuit Judge Alex Kosinsky that he “sees the ‘little alien’ and ‘big government’ and is often inclined to favor the little alien.”[1] This may be a heartwarming sentiment, but it is not sound jurisprudence.

Through exploration of the Congressional Record, case law, interviews and other original sources, I establish that Congress passed valid immigration legislation to execute its specific intent to expand and strengthen laws directed at criminal aliens. Next, I establish that the executive legally and appropriately administered the new law and that the Ninth Circuit Court of Appeals then began to deconstruct parts of the law. In the conclusion, I pose the question, “Does Congress attempt to defend its legislation from encroachment by the Court’s actions?”

 Methodology

Primary research and source material comes from government records and from notes of personal interviews with judges, a congressman, and attorneys. These sources include an extensive review of the Congressional Record to establish the Congress’s intent when it passed the Act and the criminal alien re-entry sanctions portion of the Act. The review includes studying floor debates and extensions of remarks. I also rely on notes from my personal 1995 conversations with Congressman John Hofstettler of Indiana about his views on the immigration reform efforts of the 104^th Congress (1995 – 1996). My description of group-illegal-entry in the form of “bonsai runs” is taken from newspaper accounts in the San Diego Union-Tribune and from my notes as an eyewitness.

Primary research on the early implementation and application of the “aggravated-felony-based deportation” section of the IIRIRA is taken from my notes of interviews with immigration judges, notes from conversations with the U.S Attorney for the Southern District of California during the mid-1990s, INS attorney interviews, interviews with the members of the immigration bar, and emails exchanged between these officials and me. Research on the response of the Ninth Circuit Court of Appeals is taken from reviews and accounts of circuit court opinions of appealed removal decisions rendered by immigration judges. I also rely on notes from my personal conversations with immigration judges regarding their efforts to administer the law in light of appellate court intervention. Additional information and data comes from think-tank accounts[2] of decisions by the Board of Immigration Appeals, as well as scholarly articles on the IIRIRA legislation.

A database of rhetorical comments by members of Congress was built from the Congressional Record. This database was created by first counting all rhetorical incidents of support and all rhetorical instances of opposition listed from search terms used in reviewing the Congressional Record for the 104^th Congress. The result was 28 floor comments in support and 19 in opposition. This population of 47 remarks breaks down to 59% support and 41% in opposition. Not all 47 remarks could be included here as evidence. A sample of member remarks was randomly drawn from the population in a 3:2 ratio of supporting remarks (9) to opposing remarks (4). This allows the member comments included here to reasonably and accurately represent the total remarks made from the floor over the life cycle of the legislation.

In general, a descriptive, historical, and qualitative approach has been taken because it yields substantial information regarding legislative intent, executive action, and court response. The acquisition of data and information in these particular subject areas is achieved most readily by close examination of original documents and review of rhetorical records, rather than by strictly statistical measures and equation-based hypothesis testing. While a largely qualitative approach may introduce some subjectivity into the conclusions and revelations, it nevertheless provides insight and understanding into the multi-faceted and subjective area of Congressional-Court dynamics regarding judicial impact on valid legislation.

Literature Review

            Research into the general area of the contemporary political relationship between the Congress and the Courts on criminal aliens is limited. Studies that do exist are found almost exclusively in the disciplines of social science and law and are from scholars writing in immigration journals or law reviews. Scholarly literature that is specifically focused on the 1996 Act, its application by the executive, and appellate court reaction is virtually non-existent. Research from the field of political science into specific causes and dynamics of the Ninth Circuit Court’s response to the IIRIRA does not exist. This paper will be the first.

One of the most recent authoritative pieces of literature on the general nature of Congressional – Court relationships is The Amorphous Relationship between Congress and the Courts by Michael A. Bailey, Forrest Maltzman, and Charles R. Shipman published in the Oxford Handbook of Congress. Michael A. Bailey is the Colonel William J. Walsh Professor of American Government in the Department of Government at Georgetown University and teaches at the McCourt School of Public Policy there. Forrest Maltzman is a professor of political science at Georgetown University. Charles R. Shipman is the Ira and Nicki Harris Professor of Social Science at the University of Michigan, where he holds appointments in the Department of Political Science and the Ford School of Public Policy.

Isabel Medina did the only scholarly work that mentions the narrow area of the aggravated felony portion in the IIRIRA. Her work titled “Judicial Review – A Nice Thing – Article III – Separation of Powers and Illegal Immigration Reform and Immigrant Responsibility Act of 1996” addresses the effort by the INS and DOJ to get Congress to eliminate Article III Courts from reviewing their agency decisions. Medina includes a brief reference to the aggravated felony provisions of the Act.

Austin T. Fragomen, Jr., presents an analysis of the legal impact of the new law on various classes of foreign nationals in the United States. His article “Illegal Immigration Reform and Immigrant Responsibility Act of 1996: An Overview” was published in The International Migration Review in the summer of 1997.[3] Lina Newton, Associate Professor of Political Science at Hunter College, has written about the field of immigration reform publishing a scholarly book, Illegal, Alien, or Immigrant: The Politics of Immigration Reform (2008). Newton’s book is a critique of immigration policy as nativist and implies that there is more than a little irrationality and prejudice behind policies that restrict open entry into the country. She expresses her views with authority and factual support and makes vivid arguments despite her significant tilt toward open borders and loosely restricted entry.

While these works direct themselves toward the issue of immigration reform and congressional action in general, they do not explicitly explore the relationship between Congressional legislation and the Court’s response to that legislation. As a result, the political and legal relationship between Congress and the Courts is an inviting area for additional research and inquiry. A body of literature on this general relationship could form the foundation for more narrowly tailored research on specific pieces of legislation and court challenges to them.

The 104^th Congress’ Intent with Regard to the Removal of Criminal Aliens

Exploring and establishing Congressional intent behind the aggravated felony provision of the IIRIRA is the first step toward understanding what happened in the courts in the years after passage. The bill was created, debated, and passed by the 104^th Congress. Illegal entry into the United States had been a growing issue since the so-called “bonsai runs” of 1992 and 1993. Hundreds of foreign nationals would gather on the Mexican border at the head of Interest Highway 5 in San Ysidro, California.[4] On a given signal, as many as 500 would charge the American border, running down I-5, overwhelming the border patrol and thereby successfully entering the country in violation of law and without inspection.[5] According to the San Diego Union-Tribune, hordes of immigrants regularly stormed the border, startling and endangering drivers on I-5.[6] These bonsai runs would spontaneously arise and occurred frequently, thus creating public concern.

A number of illegal entrants gaining entry through these bonsai charges later committed serious, often violent, crimes against American citizens. A House Judiciary Committee report on the history of illegal immigration released on May 22, 2014, by Chairman Bob Goodlate reveals that of the 35,318 criminal aliens released between 1994 and 1999, 37% had been convicted of another crime in the United States by 2000.[7] Their crimes ranged from burglary to rape to murder. These criminals would serve time in prison then be deported back to their country of origin. However, they would promptly and repeatedly return to the United States in violation of their removal orders then commit additional crimes. Before the 1996 Act, they faced little or no legal sanction for violation of their removal orders and, therefore, continued to repeatedly re-enter the country in violation of deportation orders. Large-scale illegal entry in general, and re-entry by criminal aliens in particular, became a serious issue and area of political interest.

Given this environment, several members of Congress responded by making illegal entry in general and criminal aliens in particular a campaign issue. The 104^th Congress reacted by passing the Immigration Reform and Immigrant Responsibility Act that included expanding the aggravated felony law to include an extensive list of serious crimes that could be used to trigger deportation based on criminal conviction.[8] The Congressional Record for the 104^th Congress reports floor debates and extensions of remarks that reveal the intent behind the new aggravated felony law. Floor debates often become mired in arcane discussions of rules and procedure. It is the rhetoric in the extension of remarks in which one finds a more direct and open professing of intent by legislators. Therefore, this paper primarily explores the extension of remarks portion of the Congressional Record to establish intent.

The bill’s sponsor, Texas Congressman Lamar Smith, introduced the 1996 Immigration Act, also known as HR 2202, on August 4, 1995.[9] The bill had 129 bi-partisan co-sponsors.[10] Such significant levels of co-sponsorship indicate an institutional predilection toward an intent to support the general premise behind a bill in consideration. As Krutz (2005) notes, the likelihood that a measure receives serious attention is reflected in the number of legislators that endorse the measure through co-sponsorship. [11] Given this widespread endorsement through co-sponsorship, it is likely that the intent of Congress as an institution will be reflected in the floor remarks of individual members.[12]

Mr. Smith, while speaking to the Committee of the Whole House on the State of Union on Friday, February 10, 1995, said, “An increasing amount of crime is being committed by non-citizens: both legal and illegal aliens. About 25 percent of all Federal prisoners are foreign born. An astounding 42 percent of all Federal prisoners in my State of Texas are foreign born. Recidivism rates for criminal aliens are high – a recent GAO study revealed that 77% of noncitizens convicted of felonies go on to be arrested at least one more time.” He continues his address to the Committee of the Whole House with, “The Bureau of Prisons estimates that over 75% of noncitizen inmates are confined for drug law violations… Because of the porous nature of our border, drug traffickers who are deported…come back across the border into the United States.”

In another section of the Congressional Record for the 104^th Congress, Mr. Smith says, “The Criminal Alien Improvements Act of 1995[13] further expedites the deportation of criminals after they have served their sentences…this bill increases the list of aggravated felonies for which an alien can be deported as criminal aliens.” Congressman Smith lays out the intention of the legislation as being generally directed at preventing repeat crime by previously deported criminal aliens. This expressed intent connects directly with the public’s concern over illegal entry and the “bonsai runs” of the early 1990s. The intent revealed in the record can be seen as an attempt to deliver on campaign promises to stop illegal re-entry, especially by previously removed criminal aliens.

Several co-sponsors of the IIRIRA are in the Congressional Record speaking about the problem of criminal aliens re-entering the country. The concern expressed from the floor was often related to the re-entry of criminal aliens almost immediately after their receiving a removal order from an immigration judge. Congressman C.W. Bill Young rose to speak on February 10, 1995, to address the issue of illegal alien crime. He said, “The legislation we consider today makes several amendments to the Immigration and Nationality Act and other immigration laws to address the problem of aliens who commit serious crimes while they are in the United States…[this] give[s] federal law enforcement officials additional tools with which to combat…immigration [related] crime.”[14]

Congressman Randy Tate rose to speak on January 25, 1996, in favor of the IIRIRA. He said, “The Immigration and Naturalization Service estimates that 300,000 people enter the United States illegally every year, and 3.8 million currently live in this country illegally.[15] These people are taking advantage of American generosity and openness without regard for our laws or principles…[This] is at the expense of those [legal entrants] who choose to play by the rules and come to America legally. I am supporting legislation to end this madness. Mr. Speaker, I urge my colleagues to support this legislation and to stand up for integrity.”[16] Later in the 95-96 session, Congressman Hyde spoke in favor of the new immigration law on March 19, 1996. He said, “…immigration reform is one of the most important legislative priorities facing the 104^th Congress. Today, undocumented aliens surreptitiously cross our border with impunity….The 104^th Congress can make an unprecedented contribution to the prevention of illegal immigration as long as we have the will to act. H.R. 2202 provides for…greater deterrence to immigration related crime…and expeditious removal of persons not legally present in the United States.”[17] During another floor debate, Congressman Gallegy rose in support of HR 2202 by saying, “The primary responsibilities of any sovereign nation are the protection of its borders and the enforcement of its laws. America is a nation of immigrants…and at its core celebrates legal immigration.”[18] Congressman Julian Dixon spoke on January 5, 1996, saying, “…one of the most important changes in INS procedures was…the decision to expand and accelerate the procedure for holding formal deportation hearings …for those who had served time on criminal convictions.”[19]

Near the end of the debate on the IIRIRA, Congressman Bill McCullum of Florida rose to speak on the issue of adjudication of deportation matters. He said, “I believe it is time…to establish a full-blown adjudicatory system in statute [for immigration hearings].” Mr. McCullum’s objective, albeit unsuccessful, was to include amendments moving the Immigration Court from agency supervision and management to Article I status. [20]

Member commentary in the Congressional Record supports a conclusion that Congress intended to inhibit re-entry of criminal aliens who are deported on the basis that they were convicted of serious crimes known as aggravated felonies. The product of that intent was USC 1326, Subtitle B – Criminal Alien Provisions, Section. 321 through Section 324 (penalty for reentry of deported aliens). The subtitle and these sections were part of the Conference Report on H.R. 2202 that was passed and became popularly referred to as the IIRIRA.

Despite the wide support for the IIRIRA and an intention to expand sanctions against illegal re-entry, the Congressional Record also reveals opposition to significant portions of the bill. In fact, as mentioned in the section on methodology, 41% of member floor comments spoke in opposition to certain sections of the proposed legislation. Congresswoman Maxine Waters rose to speak on March 26, 1996, saying, “I am well aware of many of the problems and economic concerns with illegal immigration. H.R. 2202 is an extreme measure that not only attempts to stop illegals from crossing our borders—often in unworkable and repressive ways—but also limits many…family members from joining us in America. I support securing our borders with more agents, better equipment, and sturdy barriers…but I vote no as to final passage.”

More opposition was expressed by Congressman Chrysler, who rose on March 20, 1996, to speak on the Chrysler-Berman amendment[21] by saying, “It is simply wrong that this immigration reform bill prohibits adult children…from immigrating to the United States. That’s right. Under this bill no American citizen will be able to apply for a visa for their close family members…Mr. Chairman, in a country of 260 million people, 700,000 legal immigrants is not an exorbitant amount. We are all immigrants and descendants of immigrants…”[22]

Next, Congress Berman spoke in opposition to the bill and in favor of his amendment by saying, “Mr. Chairman this debate is really about one’s vision of America. I think it is fundamentally wrong to take the justifiable anger about our failure to deal with the issue of illegal immigration and piggyback on top of that anger a drastic…40 percent cut in permanent legal immigration. Preserve the existing system. Do not tear it apart.”[23]

All of these remarks for and against various elements of the Act reveal a significant fact regarding the congressional intent behind the passage of the criminal alien re-entry portion of the law. The varying arguments and remarks on H.R. 2202 (IIRIRA) share a common trait: None of them oppose the section tightening the sanctions on criminal aliens who re-enter in violation of their removal order. The intent of Congress with regard to criminal alien removal based on an expanded list of aggravated felonies was clear: Tougher penalties for subsequent re-entry was an area of total agreement. The next step in understanding what happened to the IIRIRA and its aggravated felony provision after passage is to examine how the executive applied the act in the years immediately after passage.

 Application and Implementation of the IIRIRA and USC 1326

             Congress expressed a clear and unambiguous intent to strengthen and expand sanctions against criminal aliens who had committed serious crimes against United States citizens. After passage of the Act, the Department of Justice and Immigration and Naturalization Service[24] became responsible for promulgating rules and regulation and for administering criminal alien removal. During the first few months, deportation based on conviction for an aggravated felony and prosecution for re-entry in violation of that deportation order was unencumbered by appellate court decisions. The law was working largely as intended by Congress.

The Immigration Courts[25] were mindful of possible challenges to deportation orders that had been based on aggravated felonies. They took significant steps to secure their decisions against constitutional challenge. Given the severe sentences for those convicted of re-entry on the basis of a removal order, criminal alien respondents were afforded enhanced due process at their removal hearing in Immigration Court. The Immigration Courts held training conferences to instruct judges in the adjudication of removal cases under the Act.[26] Specific guidelines were provided that compelled notification requirements when a removal order was based on the newly expanded aggravated felony provisions. Each respondent who was issued a removal order based on the commission of an aggravated felony was to be given on-the-record advisals that illegal re-entry carried the possibility of long prison sentences. Immigration judges, as a matter of procedure in each hearing, began issuing these advisals to ensure due process notification of the consequences for violating the order.

United States Attorneys were provided tight guidelines for the prosecution of cases involving illegal re-entry after deportation by criminal aliens. These activities demonstrated that the 104^th Congress had operationalized its intent to remove criminal aliens and stop their illegal re-entry. It had not equivocated. USC 1326 stated, “[A removed alien] whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be…imprisoned for not more than 20 years.”

The IIRIRA went into effect on September 30, 1996, with the Immigration Courts seeing the first removal hearings based on the commission of aggravated felonies in the last three months of 1996. In early 1997, the U.S. Attorney’s Office began to criminally prosecute its first illegal re-entry cases under the new law. By early 1999, the first cases challenging immigration judges’ orders removing criminal aliens were decided by appellate courts. Courts also begin responding to challenges to U.S. Attorney 1326 criminal re-entry prosecutions.

Many—perhaps most—immigration lawyers specialize in defending aliens who are in deportation or removal proceedings before the United States Immigration Court. Aliens in deportation and removal proceedings are in civil, not criminal, proceedings. The civil penalty for illegal presence is removal. These aliens usually acquire illegal status by entering without inspection, attempting to enter with false papers, or overstaying a temporary legal status. If these aliens are deported, they are prohibited from legal entry for five years. If during these five years they re-enter in violation of the order, they face criminal prosecution and up to one year incarceration for re-entry although U.S. Attorneys rarely charge them. Instead, the U.S. Attorney simply lets the violator face another removal proceeding in Immigration Court. Under the IIRIRA, those aliens who were removed for illegal presence and who also were convicted of an aggravated felony while present face additional sanctions, including up to 20 years in prison. Immigration judges were removing criminal aliens and U.S. Attorneys were prosecuting these criminal aliens for re-entry, just as Congress had intended under the new aggravated felony provision. This is a classic example of how the American government is designed to function. An issue of public concern had arisen; that is, the illegal entry and commission of violent crimes. Congress responded with campaign promises, debate, and legislation. The executive was implementing the law as intended by Congress. However, this functioning was derailed, at least partially, by the decisions and opinions of judges in the federal courts, most particularly the Ninth Circuit Court of Appeals. Depending on how one views the evidence, this derailing was either appropriate jurisprudential intervention based on constitutional considerations or inappropriate judicial activism meant to engineer social norms.

The 9^th Circuit and Others Respond to Congressional Intent Expressed in IIRIRA 1996

The Ninth Circuit’s dislike of Congress’s enhanced criminal alien sanctions quickly arose. This dislike is in harmony with several of the criticisms launched from the legal academic community. Together, academics and the Ninth Circuit began to form the nucleus of a reactionary response to the new law. Nancy Morawetz, when writing in the Harvard Law Review, opined that, “…with regard to deportability and eligibility for relief,[27] the most publicized aspect of the new laws is their Alice-In-Wonderland-like definition of aggravated felony.”[28] The essay argues that the effort to develop a per se list of offenses that mandate deportation is fundamentally misguided.”[29] Morawetz and others criticize those circuits that uphold Congressional intent of the law while embracing the one circuit that unwinds the law. She writes, “…the Third Circuit has held that a conviction for the…crime of petty theft under New York law with a one year sentence constitutes an aggravated felony under the immigration laws.”[30] Few criticisms of the Ninth Circuit decisions striking or limiting the new law can be found prior to 2002. One cannot say for sure if the Court is taking cues from legal academics, but their respective themes converge quite nicely and the correlation is noteworthy. In a 2002 case before the Circuit, a native of Guatemala pled guilty to two separate second-degree commercial burglary charges. Homeland Security issued a Notice To Appear,[31] thereby commencing removal proceedings. The court decided that this burglary was not an aggravated felony by commenting that “…entering a commercial building with the intent to steal items therein was not, as a matter of law, a ‘substantial step’ supporting conviction for attempted theft.”[32]

In another case, Chavez-Solis v Lynch in 2015, the panel could not seem to find possession of child pornography an aggravated felony. In 2011, after pleading nolo contendere to charges of possessing child pornography in violation of California’s penal code, Mr. Chavez-Solis was sentenced to 150 days imprisonment. Subsequently, the Department of Homeland Security charged him with removability as an alien convicted of an aggravated felony. But the Court determined that his conviction did not qualify as an aggravated felony. Their decision was based on what they said was the California law’s vagueness and overly broad construction.

The Ninth Circuit is not the only appellate body that is inclined to free convicted criminal aliens from the shackles of the aggravated felony designation. The Board of Immigration Appeals, which is the first level of appeal from deportation and removal orders, almost immediately begins to make decisions reversing Immigration Court applications of the aggravated felony provision. Board Members Cecilia Esponza, Lorry D. Rosenburg, and Gustavo Villageliu concluded that “…appellant Melanie Beaucejur-Jean’s crime “does not constitute a crime of violence and is not an aggravated felony subject to deportation guidelines.” And what was Beaucejur-Jean’s crime that these three said did not constitute a crime of violence? Beaucejour-Jean had been convicted in upstate New York of killing an 18-month-old baby in her care. “I hit him two or three times with my fist on the top of his head. I did this to stop him from crying. It did not work. I do not know how long I shook him but I did not stop until he was unconscious.”[33] The Center for Immigration Studies wryly observes, “Beaucejour-Jean was ordered deported as a criminal alien but, thanks to this trio of ‘it’s-not-over-till-the-alien-wins’[34] appellate reviewers, Beaucejour-Jean remained in America.” In light of this startling decision, one might ask if the Board of Immigration Appeals reviewers are deciding legal matters according to personal political views rather than on proper jurisprudence. The Center for Immigration Studies suggests that a partial answer might lie in the fact that Board Member Espinosa named her son after the violent Marxist guerilla Che Guevara.

Another recent Ninth Circuit case, Lopez-Valencia v Lynch, 2015, continues to narrow the scope of the new law. In this case, Judge Margaret McKeown writes, “The central issue in this appeal is whether a conviction under California’s theft statute may qualify as an aggravated felony.” She goes on, “We hold that a California conviction for theft is never an aggravated felony because it is categorically not a theft offense.”

Curiously, Ninth Circuit en banc decisions seem to differ from their three-judge panel decisions, lending evidence to support the conclusion that the attacks on the aggravated felony provision are coming from an ideological faction on the Court rather than from the whole Court. We see this in Randhawa v Ashcroft 2002. In this case, Sonny Randhawa was issued a Notice To Appear by the INS and placed in deportation proceedings in Immigration Court where he was ordered deported as an aggravated felon. On appeal, he argues that his conviction for stolen mail is not an aggravated felony under 8 USC §1101(a)(43)(G). The en banc panel disagreed and upheld the conviction as an aggravated felony. Other cases decided en banc upheld the aggravated felony enhancements. For instance, in Estrada-Rodiquez v Mukasey, the court said, “…we hold that resisting arrest under Arizona Revised Statutes § 13-2508 is categorically an aggravated felony…” There appears to be a faction on the Circuit attacking the application of the aggravated felony provision.

Law is complicated, technical, and often less than apparent. The cited cases may be rightly decided as matter of statutory construction or constitutional principle. On the other hand, the cases may represent judicial activism and social engineering by the court. This paper does not answer the question one-way or the other. The question posed here is: Was there a negative court impact on the aggravated felony-enhancement legislation that was validly passed by Congress in 1996? The above-cited cases say yes. Katherine Brady of the Immigration Resource Center (IRC) provides the most accurate description of court impact. Her job with the IRC is to instruct immigration lawyers on how to defend cases against aliens in deportation and removal proceedings, including those aliens deportable as aggravated felons. She tells lawyers, “If you represent an immigrant convicted of a crime…relying on older precedent you may think that the conviction [for an aggravated felony] has adverse immigration consequences, when under recent precedent it should have no consequences, or at the very least less serious consequences.”[35] What more eloquent revelation can there be to prove that the courts have deconstructed Congress’ aggravated felony portion of the IIRIRA?

I suggest that the evidence presented here leaves no doubt that Congress’ intent, in the instance of the aggravated felony provision of the IIRIRA, has been significantly “undone” by the courts. Determining whether this undoing was the result of sound jurisprudence or political activism is beyond the scope of this paper and legal expertise of the writer. The questions asked here are what, if any, was the response of Congress? What should be Congress’ response?

Congress Fails to Respond to Court Deconstruction of the Aggravated Felony Provision

As the evidence here indicates, decisions from the Courts and the Board of Immigration Appeals began to reverse or remand immigration judge removal decisions based on conviction for aggravated felonies. U.S. Attorneys trying to prosecute criminal aliens for re-entry met a similar appellate fate. Federal District Courts failed to follow the sentencing parameters in the Act. Instead, they most often sentenced to time served, amounting to a few weeks or few months. One reasonable conclusion is that many federal judges simply disagreed with Congress and were attempting to piecemeal deconstruct the legislation.

This poses the question: Would Congress drop the other constitutional shoe and pass additional legislation to counter court deconstruction of the aggravated felony provision? Congress had a number of options available. Many of the court decisions were based on the vagueness of state criminal law, rather than on the IIRIRA law in chief. Congress could have added amendments that addressed this problem. For instance, it could have instituted requirements for states to clarify the pertinent sections of their criminal code or lose federal law enforcement assistance. This political tool has long been used by Congress to influence state legislatures in other areas, such as social services or education policy. However, the Congressional Record shows that no such legislation was passed and floor remarks were few.

Congress could have re-written parts of the aggravated felony provision to eliminate any doubt about what it intended to be an aggravated felony. Statutes are often little more than general guidelines that leave the details to be specified by agency rules and regulations. This was decidedly not the case with the IIRIRA, as the definition of aggravated felony was unusually specific to the extent that it even provided a chart of offenses. Nevertheless, federal judges, if they dislike the policy objectives of a given statute, seem willing to deconstruct any part of the statute they can deem vague.[36] Congress can always counter this judicial action with tighter, more specific legislative language. But no such congressional action is revealed in the Congressional Records for the 105^th through the 114^th Congresses. Congress has become inert when it comes to responding with changed criminal alien legislation.

However, by the 108^th Congress we see the return of rhetoric, if not substantive legislation, aimed at criminal aliens and illegal immigration. On September 21, 2004, House members traded remarks about the continuing problem of illegal immigration, especially by criminals. We heard a member rise and state, “In any event, the numbers suggest that tens of thousands of criminals, quite possibly hundreds of thousands, treat the southern border as a revolving door to crimes of opportunity. The situation is so out of control that 400,000 illegal aliens who have been ordered to be deported, 80,000 have criminal records—and the agency in charge, the Department of Homeland Security, does not have a clue to the whereabouts of any of them…” On the same day, another member rose to say, “Perhaps the most alarming aspect of having 15 million illegals at large in society is Congress’s failure to insist that federal agencies separate those who pose a threat from those who don’t. The open borders, for example, allow illegals to come into the country, commit crimes and return home with little fear of arrest or punishment.”

The Congressional rhetoric from the House floor continued in the 109^th Congress. Congressman Sensebrenner, speaking to his colleagues on December 15, 2005, during a debate on the Border Protection, Antiterrorism, and Illegal Immigration and Control Act of 2005, tells his colleagues, “Our nation has lost control of its borders, which has resulted in a sharp increase in illegal immigration and has left us vulnerable to infiltration by terrorists and criminals. Estimates indicate that there are currently more than 10 million illegal aliens already here and that figure grows by a half million each year.”

It is déjà vu all over again. The floor remarks go on, as if IIRIRA had never been passed. There is, however, a new aspect included in Congressional discussion and that is terrorism. New immigration bills are introduced in both the 108^th and 109^th Congresses. The term “comprehensive immigration reform” enters the congressional lexicon and the public conscience. The key event since the passage of the IIRIRA was the 9/11 attacks on the nation. Even with this world-changing event, Congress cannot seem to pass its so-called comprehensive immigration reform. Throughout these congressional discussions on illegal entry, the aggravated felony provision regarding re-entry of criminal aliens fades from discussion. However, with the 2015 decision in the Chavez-Solis v Lynch, deconstruction of the provision continues. Congress’s only response found in the Congressional Record is a rhetorical whisper.

Conclusion

This paper began by posing two general questions: 1) Does the federal judiciary, on its own volition and initiative, seek to impact or change duly passed congressional legislation and, 2) If so, how does Congress react to these judicial initiatives? The case study that is presented provides evidence that the answer to the first question is yes. The federal judiciary, particularly in the form of Ninth Circuit Court of Appeals decisions, does impact and change the law.

The evidence suggests that this impact and change may be driven as much by the Circuit judges’ and Board of Immigration Appeals’ own policy opinions and personal ideology as by sound jurisprudential consideration. This evidence is found in the impact, nature, and language of the decisions reversing or remanding many immigration judge orders of removal that were based on the aggravated felony law. More evidence is offered in the public debates between the judges during which at least one readily and proudly admits to favoring one party over the other based on extra-judicial considerations. Still more evidence can be found in the correlation between law review articles that are critical of the aggravated felony provision and court decisions. My interviews with immigration judges revealed their frustration at trying to follow the clear meaning of the statute, only to be reversed or remanded by the circuit court. My conversation with Congressman Hostettler indicated that members of Congress sought to pass straightforward legislation expanding and enhancing criminal alien sanctions. According to the Congressman, the legislation was intended to increase public safety and address national security vulnerabilities. Mark Reed, District Director of the Immigration and Naturalization Service in Southern California from 1992 to 1996, told me in some detail why criminal aliens presented a clear and present danger to the country and why the aggravated felony provision would help ameliorate these dangers. Alan Bersin, the U.S. Attorney for the Southern District of California, met with me throughout 1995 and 1996 to express his concern over criminal alien activity and the need to use the aggravated felony provision to stem criminal activity.

Despite these all these factual indications of danger to public safety and national security, despite Congress’s clear expression of intent through legislation, and despite the Immigration Court’s considerable efforts to ensure due process, the Ninth Circuit, or at least a large faction of it, saw fit to begin deconstructing the aggravated felony law.

In the end, Congress failed to respond with anything other than short-term rhetoric. It did not challenge the judiciary with additional legislation. There is a legitimate constitutional question here: Do the Courts attempt to change Congressional policy with which they disagree by deliberately fashioning decisions that unwind Congressional decision-making? If they do, where is the Congres

[1] Ninth Circuit Judge speaking to immigration judges at conference

[2] Primarily accounts written by The Center for Immigration Studies.

[3] The Illegal Immigration Reform and Immigrant Responsibility Act of 1996: An Overview Austin T. Fragomen,

Jr., The International Migration Review Vol. 31, No. 2 (Summer, 1997), pp. 438-460 Mr. Fragomen, Jr., is

Chairman of the global law firm of Fragomen, Del Rey, Bernsen & Loewy LLP and chairman of the American

Council on International Personnel.

[4] Congressional Record, Volume 142, Issue 40.

[5] http://tvnews.vanderbilt.edu/program.pl?ID=343211

[6] San Diego Union-Tribune, August 8, 2015.

[7] House Judiciary Report on Criminal Alien Crime and Recidivism, released May 22, 2014.

[8] See list-of-crimes chart on page 2 of this paper.

[9] Congressional Record of 104^th Congress , search terms Lamar Smith + Immigration + IIRIRA.

[10] Ibid.

[11] Networks in the Legislative Arena: How Group Dynamics Affect Co-sponsorship, Kathleen A. Bratton

Department of Political Science Louisiana State University.

[12] Ibid.

[13] A sub part of the general 1995-1996 legislative package on immigration reform and illegal re-entry.

[14] Congressional Record of the 104^th Congress, Extended Remarks, February 10, 1995.

[15] In the 19 years since these statistics were compiled, near abandonment of border enforcement has resulted in a loss of accurate data but estimates of currently-present illegal aliens is between 11 million and 20 million.

[16] Congressional Record of the 104^th Congress, extended Remarks, January 25, 1996.

[17] Ibid.

[18] Ibid.

[19] Ibid, January 5, 1996.

[20] Article I status would remove the court from direct agency control and establish it as an independent administrative court whose decisions are not subject to agency review but appealed directly to the federal judiciary.

[21] The amendment sought to expand family unity requirements.

[22] Congressional Record, Floor Debate, March 21, 1996.

[23] Ibid.

[24] On November 5, 2002, the Immigration and Naturalization Service was renamed and subsumed into the Department of

Homeland Security.

[25] The Immigration Courts are under the jurisdiction of the Executive office for Immigration

Review in the Justice Department.

[26] 1997 Immigration Judge’s Training Conference, Schedule of Break Out Sessions, Executive Office for

Immigration Review.

[27] Virtually all respondents in removal or deportation proceedings admit and concede illegal presence and deportability. They are litigating a claim that they are eligible to qualify for relief (a legal excuse) from deportation.

[27] Nancy Morawetz, Harvard Law Review, Vol. 113, No. 8 (Jun., 2000), pp. 1936-1962.

[29] Ibid.

[30] Ibid.

[31] Title of the formal charging document used by ICE to bring illegal presence charges.

[32] Hacking Law Firm, website on immigration law at www.hackinglawfirm.com.

[33] Transcript of interrogation of Beaucejur-Jean by the Monroe County (New York) Sheriff’s Office.

[34] A comment by the writer for the Center for Immigration Studies that is often repeated in the environment of immigration law enforcement.

[35]Kathy Brady is Director of IRC and graduated from Stanford University and Boalt Hall School of Law. She taught immigration law as an adjunct professor at Santa Clara University and New College School of Law and supervised students at the Stanford University Law School Immigration Clinic.

[36] An example is Judge Dolly Gee’s court orders on bond and legal representation of detained aliens.

[2] See United States Code 1326, Section 2, (d).

Recently, Law 360 a  publication of Portfolio Media a subsidiary of Lexis Nexis, banned the term “illegal alien” from use. In July retired immigration Judges Mahlon “Mick” Hanson and Elisabeth Hacker submitted an article to Law 360 on sanctuary cities. The article was rejected pending removal of the term “illegal alien” which the editors have banned. This censorship by a supposedly respected professional legal journal is a significant indicator of how far the rule of law, commonsense, and accurate recounting of  history has fallen in postmodern America.   I respond to the editors and publishers of Law 360 below.

Dear Law 360 Editors and Publishers:

You recently banned the term “illegal alien” from use in your publication. Legal writers who submit work using the term have it struck by your editors. In doing this, Law 360 has removed its name from the list of professional legal publications. You have become just another enforcer of political correctness. One can no longer consider Law 360 a serious legal publication. No serious writer of matters on illegal immigration should waste time submitting work to you in the future.

“Illegal alien” is a term of legal art that has been in use for nearly a hundred years. It has been referenced thousands of times in statute law, in trial decisions, and in appellate reasoning. The term is embedded in thousands of serious legal articles and scholarly legal works. Thus, banning its use erases an entire body of law from being properly referenced by legal writers.

Brent Perkins

Immigration Court Administrator – Retired

See Fox News Story at link below:

http://www.foxnews.com/us/2015/09/17/doublespeak-ex-judges-bolt-legal-journal-over-ban-on-term-illegal-alien/?intcmp=hpbt4&intcmp=latestnews

Most of us can sense that things aren’t quite right in America these days. Talk to most anyone and they will tell you that things have not be right for sometime now. However, they won’t be able to tell you precisely why. If pressed a dozen seemingly unrelated things will come to mind. They will  to tell you about the dysfunctional Congress, a Court out of control,  a rouge unlawful President, the selling of fetuses for profit, re-defining marriage, a rampaging Donald Trump, a 20 trillion dollars debt. On and on they will go. Despite the mile-long laundry list of things clearly gone wrong, we are left with confusion and a sense of anxiety at our core. We are frustrated because there seems to be no cause and effect that we can apprehend.

There seems to be no correcting mechanism to set our multitude of political and social problems right because no one can credibly explain what is driving them. We feel powerless, lost, and angry as our seemingly crazy society runs amok around us. We try desperately to make sense of the goings on. Unnerved and seeking reassurance, we latch on to the latest fad explanation or some politician who claims to know what’s wrong and how to fix it. But we soon realize that these do not hold together long. We soon return to our anxieties and deep sense that things are not right and that we are in danger. Our best defense against the onslaught seems to be to occupy ourselves with the tasks of everyday life and relegate the “things gone wrong” problem to the back of our minds.

I have watched the goings in America and the world for 50 years (I’m 68) and have come to understand that he United States is in a stage of history where the present is incomprehensible and the future unseeable and unknowable. We seem to have jettisoned our old system of governance, our original culture and our traditions without replacing them. We have thus invited a sort psychological and spiritual anarchy.

Accumulating evidence suggests that there is a movement coalescing around the objective of radically altering the form of government in the United States. There is no conspiracy in the traditional sense but rather a process of self-selecting coalescence around the goal of ending constitutional rule and terminating American society as it was.  In the vast population of citizen-watchers of the political scene, there are those (in very large numbers) who seek profit, career success, fame, power, excitement, personal attention or retribution by bringing down the American constitutional republic. I think they have, at last, succeeded.

The history, virtue, necessity, and strength of American constitutionalism is but a faint and dim abstraction to most Americans. Societies tend to have poor institutional memories over the long run. There is a conspiracy of sorts involved. It is this: Various and sundry political players domestically and from around the world stand at the ready to exploit opportunities to empower, encourage, and increase the numbers of those joining the movement to take down constitutional America and replace it with something they can’t even articulate. Events such as Ferguson and Black Lives Matter are examples.

The United States is in the process of shedding all its traditional norms and replacing them with this vague and radical future. We are now in the stage of chaos and confusion in which neither the old traditions nor the new future is in place. We are in a political and cultural limbo where no clear set of guiding principles is available to us. This leaves vast numbers of hearts and minds there for the taking.

Original America is being killed off and the replacement America has yet to come into being. This is a historical period where no overarching social and cultural structure exists. Instead God is dead and all things are permissible.  A thousand ideas, a million noisy people, interest groups as far as the eye can see, and shadowy figures in all corners of power compete in a mad free-for-all to be the arbiters, and the rule makers of the Brave New Anti-America. The only question is who and what will win.

Brent Perkins

September 15, 2015

Dear Yale Divinity Faculty,

Your decision to invite DeRay McKesson to “teach” a course on public advocacy, social change and civil disobedience is more than ill-advised, it is unethical and immoral. The end toward which McKesson advocates (and apparently Yale Divinity) is cold-blooded  murder of our nation’s police officers. Deray’s gang of thugs and darlings of Yale Divinity School take to the street hatefully chanting  ‘Dead cops now” and “Pigs in a blanket, fry’em like bacon.”  The purpose of these chant’s is to provoke  street violence, create propaganda images for the media, and incite destructive divisiveness across American Society. The Left has always used these tactics of intimidation to bring chaos and anarchy to a largely peaceful civil society.

In inviting McKesson to Yale, you have shown that the faculty acts as the purveyors of anarchy, violence, and propaganda not the seekers to truth.  The faculty members will suffer nothing for their awful lack of ethics and moral emptiness. In fact, one can envision the faculty receiving happy toasts to their “courage” at academic cocktail parties all around New Haven this Fall. You will bask in the celebrity-light that is sure to be yours. However, when your heads hit the pillow in the nights ahead remember this: You will be a full and deliberate accessory to all future police murders inspired by the hideous hate-group Black Lives Matter.

Before you tout your tired and phony justification of “academic freedom” re-read the actual words in your course description. “A young leader of the Black Lives Matter Movement, DeRay McKesson will present case studies about the work of organizing, public advocacy, civil disobedience, and social change, through both Leadership of Presence, and Leadership in the Social Media.” Then compare that with the real world actions and rhetoric of Black Lives Matter. The comparison reveals the moral and ethical emptiness that now permeates Yale Divinity School.

Brent Perkins

San Diego

You awake to face the day. Throughout the day you have a reasonable expectation to be unencumbered by bullies, criminals, and thugs. This expectation is the result of the Rule of Law. The principle is simple: We have laws. Failing to follow them has serious negative consequences. These serious negative consequences motivate criminals, thugs, and bullies to leave you alone. It’s no more complicated than that.

Thugs, bullies, and criminals are more and more everywhere. Bernie Madoff, Enron, unconstitutional Obamacare, club wielding Black Panthers at the polls, Acorn pimps, SEIU intimidators, illegal aliens storming unchecked over the border, two year sentences for murders, Presidents and Governors commuting the sentences of violent criminals, multimillion dollar judgments to customers for spilling their hot coffee, fraudster CEOs acquitted, and slaps on the wrist for law breaking Congressmen. On and on and on it goes. The current Mobster Socialism is destroying the Rule of Law.

The Rule of Law, like its siblings limited government and Fiscal Prudence is increasingly being ignored by our law makers and constitutional interpreters. In its place they have inserted the brave new world of post modern relativism. Post modernism is simply an intellectual euphemism for an “Alice in Wonderland Society” where up is down and down is up. A society where criminals, thugs and bullies are the victims and peaceful productive citizens are the oppressor. A society where the laws and rules depend on ones point of view, ones opinion, ones emotions, and more importantly the personal ideology and emotions of the moment. What the law is not, under our progressive post modern relativist society, is what is written on the page created by law makers. In post modernism, words no longer mean what words mean. They mean only what anyone may “feel” or desire they mean. Up means up only if one “feels” it means up or desires it to mean up.

It is the progressive liberal politicians and their activist henchmen that are largely responsible for trying to convince American society that the rule of law is hopelessly passe. Adhering to the rule of law is not “cool” not “hip” to the progressive sensibility. This is what they tell us and teach our school children. For you see, in the liberal postmodern mind the criminals, the thugs, and the bullies are not responsible for their acts. Society is responsible. In their view it is bigoted racist, rich white men, and an ignorant society unenlightened by progressive insights are to blame for all crimes committed by criminals. Rarely can progressives bring themselves to blame the actual perpetrator. So, liberals seek to punish the larger society by confiscating money from it and bludgeoning it with Political Correctness. In doing so, they lift up the criminal as yet another poor victim needing progressive rescue and protection from a bigoted and unenlightened society that, in its ignorance, still believes that consistently applying the rule of law protects society. In the progressive view, moral and legal infrastructure is to be replaced by the vacillating feelings and transient opinions of elite rulers. Behavioral cause and effect established by the lessons of a long and painful history are to fall prey to the whimsical declarations of new age Federal policy experts and university intellectuals.

If we allow this march of post modern progressivism to continue unchallenged, America will no longer be able to assert that it is a society governed by the rule of law. America is increasingly ruled by the socialist ambitions of Progressives, ambitions that are increasingly enforced by the their intimidating street thugs in SEIU, their minions in the media, Federal Bureaucrats, and their Acorn soldiers-in-waiting. And soon to be enforced by what the President Obama calls his Civilian Security Force equal in size, scope and budget to the U.S. Military.

Despite the many thugs now wielding bats in the streets of Fergusen or Baltimore, courageous citizens willing to stop the New Left can prevail.  Regardless of how weakened and warped democracy and the Rule of Law has become under the relentlessness of the doctrine of political correctness and New Left progressivism there is still time, precious little time, for the majority to stand, fight and defeat liberal post modernism and its Alice in Wonderland view of human history and human reality