Blog/Rule of Law
Posted Oct 12, 2020 by Martin Armstrong
Supreme Court nominee Judge Amy Coney Barrett intends to honor her mentor, the late Justice Antonin Scalia in her opening speech to the Senate. As I have explained, candidates for the Supreme Court NEVER appeared before the Senate until 1925 when one senator objected because he was being investigated.
Judge Amy Coney Barrett before the Judiciary Committee is a former law clear to former Justice Scalia who has invoked his judicial philosophy that she tries to mirror. According to her opening statement, Judge Barrett is stating clearly that she learned a critical lesson from Scalia to “apply the law as written, not as the judge wishes it were.” Of all the Supreme Court decisions I have read which are far too many to even number, no other legal mind ever impressed me so much as Justice Scalia. He was truly an unbiased person and applied the law as a strict constructionist.
Judge Barret states: “Justice Scalia taught me more than just law. He was devoted to his family, resolute in his beliefs, and fearless of criticism. And as I embarked on my own legal career, I resolved to maintain that same perspective. There is a tendency in our profession to treat the practice of law as all-consuming, while losing sight of everything else. But that makes for a shallow and unfulfilling life. I worked hard as a lawyer and a professor; I owed that to my clients, my students, and myself. But I never let the law define my identity or crowd out the rest of my life.”
While Michael Bloomberg was offering to pay all felon’s fines in Florida if they would vote, what he failed to understand is that Trump is like by prisoners for he is the first president to reform the laws. Under Obama, he deported more people than Trump ever dreamed of. The Clintons signed in the harsh drug laws that extended the time for blacks. But even more against these assumptions that Democrats are for the people and Republicans are only for the rich, the greatest reform in the drug laws was championed by Justice Scalia.
In Apprendi v New Jersey, this decision championed by Justice Scalia was based upon strict construction. It was a 5-4 opinion delivered by Justice John Paul Stevens, along with Souter, Thomas, Ginsberg, and Scalia. Steven was put on the court by a Republican President as was Scalia, Thomas, and Souter while Ginsberg was appointed by Clinton. Justices Rehnquist, Kennedy, and O’Conner were appointed by Ronald Reagan and Justice Breyer was also appointed by Clinton. That court was 7 republican appointees v 2 Democrat. That decision demonstrates that all this yelling about Barreett will tip the court 6-3 and the world will come to an end we have heard so many times and it is just nonsense.
In the Apprendi decision, the dissent written by Justice O’Connor conceded: “Today, in what will surely be remembered as a watershed change in constitutional law, the Court imposes as a constitutional rule the principle it first identified in Jones.” She was correct. But under her view, the government need not apply law and judges should be free to sentence you to whatever they think is appropriate in their mind. That is the reestablishment of tyranny.
I am comfortable that Judge Barrett will defend the constitution which is actually NEGATIVE not positive! I would love to collaborate with lawyers who have the guts to challenge that fundamental principle. In Harris v. McRae, 448 U.S. 297 (1980), the Supreme Court of the United States held that states participating in Medicaid are NOT required to fund medically necessary abortions for which federal reimbursement was unavailable. The Court also held that the funding restrictions did not violate the Fifth Amendment or the Establishment Clause of the First Amendment. Effectively, the Bill of Rights is a negative restraint upon government rather than a list of positive rights of the individual.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Bill of Rights is written in a NEGATIVE tone, whereby it is a restraint upon government. Courts now allow people to waive every right. Can you then be sentenced to 18 months and state you waive your right to life and wish to be executed? No judge would grant that motion. Yet they hold you can waive your right not to be tortured by waiving your right to remain silent. In a case Braswell v US, they held that corporate officers can be denied their Fifth Amendment rights because the corporation has none.
Clearly, under strict construction, there is NO power of government to create even lockdowns. The Harris court held: “Where, as here, the Congress has neither invaded a substantive constitutional right or freedom, nor enacted legislation that purposefully operates to the detriment of a suspect class, the only requirement of equal protection is that congressional action be rationally related to a legitimate governmental interest. ” The death rate of COVID-19 is no greater than the Flu. There is NO legitimate governmental interest at stake.
I would roll the dice with Judge Barrett and believe she would be on our side. It does not matter if a Republican or a Democrat appoints a justice. They do NOT always vote based upon their Party lines.