Crazy how the mind works. The previous blog got started because someone on that nefarious Playboy Cyber Club Forum said, with all the certainty of someone who was determined to be right, there were checks and balances on our civil liberties written into the Constitution by the Founding Fathers who wrote the damn thing! Anyone who has any actual knowledge of the Constitution and civil liberties would know that is patently untrue.
People who wish to erode our civil liberties would like the populace at large to believe such shit, but it is patently untrue. The Supreme Court has ruled in favor of some laws written to erode the Bill of Rights, but that is different.
So, Sunday’s blog never got around to the reason for the jump into the Bill of Rights.
One thing a president can do to push his (or her) agenda is pack the court system as well as the Supreme Court with individuals that agree with his (or her) views on the Constitution or are sympathetic to his (or her) overall political bent. And that will affect the Constitution.
A couple idiotic terms have come into the public consciousness as if they actually mean something concrete: “activist judges” and “constructionist judges.” Basically, the terms were coined by “conservative” commentators and politicians to describe their choices for Supreme Court nominees who had to be anti-abortion and ready to overturn Roe versus Wade.
Since a solid 65% of Americans believe a woman has a right to privacy with her doctor and therefore a right to choose an abortion, conservatives couldn’t come right out and say they wish to appoint anti-abortion judges to the bench without offending the vast majority of the constituency. So they created terms, code really, to signal to their religious base what their intent was (is) when appointing Supreme Court judges. So they term the Roe v. Wade decision as “judicial activism” since the right to an abortion wasn’t specifically codified in the Constitution.
There are no concrete definitions for either term, although some law dictionaries now have definitions for both, but the law definitions I’ve read always conclude that these are political terms and in fact not legal terms.
The Supreme Court can change the lay of the land, as they did in 2000 when they appointed George W. Bush president.
The Constitution was written with “checks and balances” of course; the three branches of government: Executive, Legislative and Judicial and it’s the job of the judicial branch to ensure the other two branches don’t write and pass into law any legislation that would violate the Constitution. It’s called “judicial review” and that is codified in the Constitution: Article III, Section 2. But the court can’t just jump in and rule on any new laws passed by Congress and signed by the president. It takes someone, or an organization, to file suit for the Supreme Court to get involved.
I’ll note here, one of my favorites of the Founding Fathers, Thomas Jefferson, was absolutely opposed to “judicial review” and thought for every major question of law, the three branches of government should decide for themselves what is and is not constitutional. But that opinion then would nullify the very essence of section 2 of Article III: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States …
Jefferson wrote his opinion after the landmark Marbury v Madison decision (February 24, 1803) in which the unanimous opinion of the Supreme Court said the Supreme Court should be the final arbiter in the interpretation of the Constitution (among other opinions). From the unanimous opinion: It is emphatically the duty of the Judicial Department to say what the law is.
Virtually every law school library is represented online so go to one of those, like Cornell University Law School, from where the above quote was drawn.
Now that I’ve gone off on that little tangent — an interesting tangent to say the least — let’s return to the question of “checks and balances” in the Bill of Rights. There are none. If there be any check on our civil liberties, it would be this: my right to do [fill in the blank] cannot interfere with the civil liberties of another.
The Founding Fathers did not write anywhere in the Constitution that the right to free speech could be curtailed, except in times of war when the Executive Branch could exercise special powers like martial law.
The Westboro Baptist Freakshow has the right to protest, as offensive as their demonstrations may be. Courts have been shooting down the various state laws written to block the Westboro Baptist Freakshow from demonstrating at cemeteries during the funerals of fallen members of the military, but a civil law suit, such as the one brought by Albert Snyder against the church; it will be interesting to see how the higher courts rule — if they rule at all — on the constitutionality of the jury’s decision.
As the First Amendment states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
That’s pretty much the Constitutional statement on free speech.
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